In recent years, India has emerged as a prominent player in the global cryptocurrency landscape. It is poised to become a global leader in the cryptocurrency industry. The country’s burgeoning interest in cryptocurrencies and blockchain technology has prompted experts to label it the “next crypto powerhouse.” With a vast population and a growing tech-savvy youth, India presents enormous potential for crypto adoption and innovation. As the cryptocurrency market grows into a trillion-dollar economy, it is crucial to shift the discourse towards investor protection. The common misconception that cryptocurrencies are a speculative bubble that will burst soon must be addressed.
One of the significant challenges is defining the regulatory authority responsible for overseeing the cryptocurrency market. This issue remains contentious and requires resolution to establish a robust regulatory framework.
The crypto journey in India has been marked by uncertainty and ambiguity as the nation grapples with the need for comprehensive crypto regulations. This article explores the evolving landscape of cryptocurrency regulation in India, highlighting the pressing need for regulatory clarity and the challenges faced in achieving it.
What do you mean by cryptocurrency
Before we delve deeper into the regulatory aspect of cryptocurrency, first let us get a hang of what cryptocurrency means, the technology that it is built upon, and how it all started. Well, to begin the story, you all must be aware of the Great Recession that took place in the year 2008. This particular incident created a lot of mistrust among the common citizens against the government and the financial institutions in general.
During this time, a man called Satosi Nakamoto (there is still no confirmation about who he is or whether it is an actual person or a pseudonymous person) saw an opportunity to bring forth something that went on to change the world a few years down the lane. He released a white paper and introduced the concept of a peer-to-peer cash system without the involvement of a financial institution, which would take place with the help of a cryptographic system.
In the white paper, he only talked about Bitcoin and its workings but in today’s world, there are a number of cryptocurrencies that we can boast of. But one might wonder how it works. Cryptocurrencies are usually built using blockchain technology. Without using any technical jargon about what a blockchain means, it could be understood simply. Consider that you want to send money to someone who doesn’t stay in India or that you want to make any kind of cross border transaction. How would you do that? One would approach the bank and wire the money with the help of a bank, and the bank would charge a certain amount ranging from 0$ to 50$. Imagine if you could do that directly. Imagine if you could send the money without the involvement of a bank or any kind of third party, just with a click and it would reach the intended recipient within minutes. Wouldn’t that be convenient? That is what cryptocurrency helps you achieve. It makes a trustless system work! Also, when compared with financial institutions, it is very difficult for anyone to tamper with it. But over the years, we have come across a lot of frauds being committed, hackers taking the money out of the system using the very foundation that it stands on, which is maintaining the anonymity of the transacting parties, but then which system is devoid of flaws? We find ways to circumvent it and that is what we will discuss in detail in the later stages of this article.
Comparison between cryptocurrency and fiat money
Money, the lifeblood of economies, has undergone a remarkable transformation over the years. In recent times, the emergence of cryptocurrencies has sparked a revolution in the world of finance, with significant distinctions setting them apart from traditional fiat currencies.
One of the most fundamental differences between fiat currency and cryptocurrency lies in their legal status and backing. Fiat currency, such as the US dollar or the Euro, is a legal tender. It is officially issued and regulated by the government and is backed by the full faith and credit of the government. This government backing lends fiat currencies their stability and widespread acceptance.
Cryptocurrencies, on the other hand, exist in a decentralised digital realm. They derive their value from the technology underpinning them—the blockchain. Unlike fiat money, cryptocurrencies are not endorsed or controlled by any government or central authority. Instead, their value is rooted in the trust and transparency of the blockchain technology itself.
One of the primary criticisms of cryptocurrencies, particularly early ones like Bitcoin, has been their volatility. Their values can fluctuate wildly over short periods of time. However, the cryptocurrency landscape has evolved. Stablecoins, like USDC and USDT, have emerged as a reliable subset of cryptocurrencies. These stablecoins are pegged to established fiat currencies, usually the US dollar. As a result, they maintain a stable value, providing users with a more predictable means of transacting in the crypto world.
In the realm of fiat currency, transactions often require intermediaries. Whether it’s a bank, a payment processor like PayPal, or a digital wallet provider like Google Pay, these third-party entities play a pivotal role in facilitating transactions. They ensure that money moves securely between parties, but they also introduce inefficiencies, fees, and potential privacy concerns.
Cryptocurrency, however, has the potential to disrupt the status quo. It enables peer-to-peer transactions without intermediaries. When you send cryptocurrency to a friend, you’re essentially transferring digital tokens directly to their wallet without any need for banks or payment processors to verify and process the transaction. This is a fundamental departure from the traditional financial system and has the potential to simplify and democratise financial transactions.
Where does the need for regulation come into the picture
Like every fairytale that comes to an end, we need to remember that crypto is not all rainbows and unicorns. We need to keep in mind and be wide eyed about its setbacks and what we can do to make it better. The most important thing at the end of the day is the interest of the consumer or in this case, the investors and their money. It shouldn’t be put at risk at the behest of a new system.
The list of attacks by hackers hiding under the garb of anonymity is quite long and embarrassing. The very strength of crypto has become its worst enemy. To put a check on money laundering activities, we need to formulate AML ( Anti-money laundering) guidelines, first internationally and then domestically. Without it, the crypto regime is wild out there! The journey in India has been quite tumultuous, to say the least. Starting from an outright ban in the year 2017 to the Hon’ble SC overturning the ban in the year 2020 in the case of Internet and Mobile Association of India vs. RBI, we have come a long way. It gave a much needed boost to the crypto startups, but at the same time, there are still a lot of people who are scared and who want to get into this industry and are shifting to more crypto friendly nations like the UAE, USA, Japan or Singapore, to name a few. Without regulatory clarity on it, we are not moving forward in any way.
SEBI (Securities Exchange Board of India) gave a statement saying that it thinks it will be difficult to regulate crypto because of its decentralised structure and that a special authority should be formed to regulate it. A bill was also introduced by the government in the year 2021 in the Lok Sabha, but it never saw the light of day. A question that we need to ask is, why did the ball stop rolling?
We can take inspiration from what other countries have done or the steps taken by them to regulate crypto.
Comparative analysis of cryptocurrency regulation in the US, Singapore, and Japan
United States
The USA has been at the forefront when it comes to the adaptability of crypto. At the same time, it is also not shying away from taking responsibility for its investors interests and is thinking and churning out ways to protect them. It is currently being regulated by the Federal Trade Commission, the Financial Crimes Enforcement Network, the Securities Exchange Commission and the Commodity Futures Trading Commission. The FBI also acts as a powerful agent to mitigate the risk of money laundering activities.
Recently, in the case of SEC vs. Ripple (2023), the Securities Exchange Commission, i.e., a regulatory authority in the United States, alleged that Ripple’s use of its XRP cryptocurrency token has raised a lot of money by selling it as an unregistered security offering to investors. To this ripple’s defence, a cryptocurrency cannot be treated as a security and does not come under its definition.
Here, the court’s relied upon the Howey Test, which came in 1946 but is still held relevant. To decide whether anything can be considered security or not, we need to look at four important factors, which are listed below:
There must be an investment of money
It must be invested in a common enterprise
There must be a reasonable expectation of profit
The profit must have been derived from the efforts of others
Ultimately, it was held that if these cryptocurrencies are offered to institutional investors, they will be treated as securities, but if they are listed on exchanges for retail investors, they are not.
A clear distinction has been made by the courts and it has come as a boon for crypto exchanges and startups.
Singapore
When we talk about Singapore, things are at a more advanced stage and are more refined. Here, all the cryptocurrency regulation is handled by one organisation – MAS, the Monetary Authority of Singapore. All the applicants need to go through a licencing process, where their backgrounds, history, reliability factor, business governance structure, examination of the board of directors, etc. are done. Only after ensuring that the organisation is capable enough of handling the money laundering risks is that licence granted to them. With this, Singapore aims to create a safe global hub for cryptocurrency users.
Japan
The cryptocurrency in Japan is primarily regulated by three authorities named below:
Japanese Financial Service Agency
Japan Virtual Currency Exchange Association
Japan Security Token Offering Association
There is a Payment Services Act of 2009 that makes it mandatory for crypto exchanges to register with the Financial Services Agency. The JVCEA is responsible for establishing regulations and guidelines governing crypto exchange service providers, whereas the JSTOA oversees token offerings and other crowdfunding activities.
Satoshi Nakamoto being a Japanese name, the Japanese government has for sure taken on its equitable portion of duties.
What India can learn from others
As per Crypto News Land, which is one of the leading crypto news websites, India ranks second globally in crypto transaction volume, which is an example of how we are spearheading the world in this space. So the question is, do we really want to stay back when it comes to regulations? There are two sides of a coin, and we must look at both sides and then count our successes.
In the recent G-20 Summit, which was organised in New Delhi, the need for crypto regulation was very much underlined and emphasised by the other countries and a conclusion was reached amongst them, where they decided that an international framework is needed for them to implement laws domestically.
However, India should not delay in formulating fundamental guidelines and establishing a regulatory authority. The clock is ticking, and proactive measures are essential!
Legal status of cryptocurrency in India
The current legal status of cryptocurrency in Inypdia is as follows:
Legal tender: In India, cryptocurrencies such as Bitcoin are not considered legal tender. In a recent notification, the RBI clarified that cryptocurrencies or other virtual currencies are not legal because they don’t have any backing or any authority governing them.
RBI’s Circular (2018): The RBI in April, 2018 issued a circular prohibiting banks from lending services to people who are engaged in cryptocurrency business. This circular caused a disruption among people because it made it difficult for the cryptocurrency holders to covert their cryptocurrency.
Supreme Court’s judgement: The SC quashed the RBI’s Circular of 2018, which prohibited banks from lending services to crypto business holders in March 2020. The SC considered this unconstitutional and provided relief to the people who are engaged in crypto business.
Lack of rules and regulations: Cryptocurrency is not illegal in India butthese currencies do not have any set of rules and regulations that govern their use and trade. This leads to unreliability among investors and business owners in the cryptocurrency world.
Taxation and reporting: Cryptocurrencies are subject to tax. The tax authorities of India have rolled out guidelines regarding the taxation of crypto. Because profits from cryptocurrency trading are subject to income tax, traders must maintain proper records of each exchange and transaction.
Cryptocurrency and Regulation of Official Digital Currency Bill, 2021
Some salient features of this Bill are:
Its goals are to establish a strong legal framework that will govern the trading of cryptocurrencies and lay the groundwork for the Reserve Bank of India (RBI) to introduce an official digital currency.
This Bill imposes a ban on all private cryptocurrencies. Private cryptocurrencies are the ones that are mined by individuals and are not issued by the government. Bitcoin and Ethereum are examples of private cryptocurrencies.
The Bill will also set a framework for issuing digital currency in India which will be known as the digital rupee. This digital currency would be issued and monitored by the RBI.
The Bill has a provision for formulation of Digital Currency Board of India, which would be responsible for the management and regulation of all the digital currency.
The Bill has penalties for those who contravene the provisions of the Act.
The Bill also encourages the use of blockchain technology.
Conclusion
India can draw inspiration from these examples and tailor its crypto regulations accordingly. Clear, well defined rules can provide a stable foundation for the cryptocurrency industry to flourish while simultaneously safeguarding against illicit activities. It is imperative that the government maintain a watchful eye on transactions, as money laundering is a grave offence that can have far-reaching consequences.
It has the potential to harness the benefits of the cryptocurrency revolution while effectively guarding against potential misuse. By studying the experiences of other nations and crafting a balanced regulatory framework, India can position itself as a hub for crypto innovation and a responsible player in the global crypto arena. As the world of finance continues to evolve, India has the opportunity to lead the way in this exciting and transformative industry.
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This article is written by Shashank Singh Rathor. This article mainly discusses what the performance of a contract is and the types of discharge by performance with relevant landmark judgments. Moreover, it concisely elucidates various modes of discharge of the contract.
It has been published by Rachit Garg.
Table of Contents
Introduction
Contracting is a basic need of society, as in our day-to-day life, we all get into some kind of contract from a vegetable vendor to buy vegetables, to the bank to get a home loan, etc. In simple terms, contracting is a process through which two or more parties promise to discharge their obligations which were discussed while getting into the contract. When parties sign a contract, they are bound to perform their respective promises which they have made to each other while getting into the contract otherwise the contract becomes voidable or else void. In a legally binding contract, discharge of the contract means all the objectives and responsibilities which were legally formed, had been performed. The key responsibilities in a legal contract are the ones that explicitly establish the performance obligations of the involved parties. In a nutshell, the discharge of a contract does not mean the destruction of the whole contractual relationship between the involved parties, it just simply means, the primal obligations have been discharged. There are various ways for the discharge of a contract, this article covers the most common method of discharge of a contract which is via the performance of primary obligations by both parties.
What is discharge of contract
Discharge of a contract means all the contractual obligations between the contracting parties have been fulfilled. In short, the discharge of the contract is the termination of all the contractual relationships between the involved parties.
There are numerous ways to discharge the contract, such as:
By performance of a contract
Discharge of contract by performance simply means that all the obligations and terms agreed upon by the parties have been fulfilled. It happens when both parties carry out their respective responsibilities and duties as mentioned in the contract. Once the performance is completed, the contract is considered discharged, and parties are set free from any further obligations. Genuine performance is pivotal for the successful discharge of a contract.
By agreement
Discharge of contract by agreement happens when both the involved parties mutually agree to terminate the contract. The parties reach a consensus to free each other from the contractual obligations. This could be done by a formal agreement or a mutual understanding between the contracting parties. Once the agreement is finalised, the contract between the parties is considered discharged, and parties after that are no longer bound by its terms.
By impossibility of performance
Discharge of a contract by supervening impossibility happens when unforeseen situations arise that make the performance of that particular contract objectively impossible. Such circumstances or situations must be beyond the control of the involved parties and not anticipated at the time of contract formation. The impossibility must be legitimate and not self-induced. Once the impossibility is established, the contract is discharged, releasing the parties from their obligations.
By breach of contract
Discharge of contract by breach happens when one of the contracting parties fails to accomplish their contractual obligations without a legitimate excuse. Such failure establishes a breach of the contract. The non-breaching party then has the option to terminate the contract with the other party and seek legal remedies for damages caused by the breach. The breach of contract leads to termination of the contract and discharges the parties from the further performance of the contractual obligations and also may result in liability for the breaching party.
What is performance of a contract
The performance of the contract is the most usual method of discharging any contract. The performance of any contract means that both the promisor (who makes a promise to fulfil certain obligations) and the promisee (the party to whom a promise is made and who is entitled to receive the benefits or performance specified in the contract) fulfilled their respective legal obligations created under the contract within the prescribed time and manner (if any).
For example, A agrees to sell his bike to B for an amount of Rs 10,000, which is to be paid by B on the delivery of the bike. As soon as it is delivered, B pays the promised amount.
Since both the contracting parties fulfil their duties and obligations arising under the contract, it is referred to as the discharge through performance.
A goes to a stationery shop to buy a pen. The shopkeeper delivers the pen, and in return, A pays the price. The contract is said to be discharged by mutual performance.
Parties to performance of a contract
The parties involved in the performance of a contract are the individuals or entities involved in carrying out the obligations and responsibilities as specified in the agreement. Mainly, the performance of a contract involves two parties: the promisor, who is bound to fulfil the terms of the contract, and the promisee, who is authorised to obtain the benefits or performance promised. The parties to the contract must work together to establish that the agreed-upon terms are completed as per the conditions outlined in the contract. Effective communication, cooperation, and adherence to the contractual provisions are pivotal for the successful performance of a contract by the involved parties.
Obligations of parties to the contract
Section 37 of the Indian Contract Act, 1872 provides that the parties involved in a contract are obligated to either carry out or provide an offer to fulfil their respective subsequent promises. This obligation remains unless the performance is exempted or excused as per the provisions of this Act or any other applicable law.
Furthermore, promises made by a promisor continue to bind their representatives in the event of the promisor’s death before the performance, unless the contract explicitly states otherwise.
Consequently, it can be deduced from Section 37 of the Act that it is the primary obligation of both contracting parties to either perform or offer to perform their promises. For effective performance of the contract, the performance of their promises should be exact and complete, i.e., the same must comply with the contractual obligations of the contract. In certain circumstances, the performance of a contract can be excused or dispensed with under the provisions of the Contract Act or other applicable laws. This means that there are legal provisions that provide relief or exemption from the obligation to perform the contract. These provisions may include situations such as the impossibility of performance, the frustration of purpose, or other valid reasons recognised by the law. When such circumstances arise, the party affected by these provisions is relieved from the duty to perform the contract, and their non-performance is considered justified and permissible under the law. The parties are absolved from such responsibility.
Types of discharge by performance
The terms, “must either perform, or offer to perform”, stated in the opening sentence of the first paragraph of Section 37 provides for two kinds of performance, namely;
Actual performance;
Attempted performance or offer of performance or tender;
Actual performance in the contract
When a party to a valid contract actually performs all his obligations pertaining to that contract, he is said to have indeed performed his promise. Likewise, when the other party to the contract fulfils his part of the obligation, he is said to have actually performed the contract. And that is how the actual performance by both contracting parties leads to the end of the contract, thereby discharging it.
Illustration: A consented to deliver 100 lunch boxes to B’s office, and B promised A to pay the price for delivery of the 100 lunch boxes. A delivers the lunch boxes on the due date as contracted and B makes the payment. This is the actual performance.
Attempted performance or tender in the contract
The offer of performance is called attempted performance or tender in the contract. When one of the contracting parties is inclined to perform the contract and offers to perform the same, the other contracting party has an obligation to accept the performance of the contract. If the promisee refuses to accept the offer of performance, the promisor cannot be held liable for the non-fulfilment of the contract, and his rights under the contract remain unaffected. This can be clearly inferred from Section 38 of the Indian Contract Act, 1872 which states:
“Where a promisor has made an offer of performance to the respective promisee, and the offer has not been obtained, the promisor is not held responsible or liable for non-performance, nor does he thereby lose his right under the contract.”
Every offer must comply with the following conditions:
Section 38(1) of the Indian Contract Act, 1872 states that the offer must be unconditional;
Section 38(2) of the Act mentions that the offer must be made at an appropriate place and time, and under such kind of circumstances that the person to whom the offer is made might have a reasonable chance or opportunity of determining that the person by whom it is made is able and willing there and then to do the whole of what he is bound by his promise to do.
Last but not least Section 38(3) of the Act clears that In the case of an offer to deliver something to the promisee, it is crucial to provide the promisee with a fair opportunity to verify that the specific item offered is the one that the promisor is obligated to deliver. Additionally, if there are multiple joint promises, an offer extended to one of them carries the same legal implications as an offer made to all of them.
Example – A offers to deliver a brand new laptop to B as part of their contract. To ensure transparency and allow B to verify the offered item, A arranges a meeting where B can inspect the laptop’s brand, model, and specifications before accepting the offer. This opportunity gives B a fair chance to confirm that the laptop being offered is indeed the one that A is bound to deliver under their agreement. Moreover, if A had made the same offer to B and his business partner, C, the offer extended to either of them would have equal legal consequences, providing both parties with the same rights and obligations.
Types of tender in performance of contract
In contract law, there are two types of tender in the performance of a contract:
Tender of goods and services
This occurs when the party responsible for delivering goods or providing services presents them to the other party for acceptance according to the contract’s terms. If the receiving party does not accept the tendered goods or services, the offering party can reclaim them, thereby releasing themselves from liability.
Tender of money
This type of tender occurs when a debtor offers the exact amount of money owed to the creditor. However, if the creditor refuses to accept the money, the debtor remains obligated to repay the debt. Hence, a tender of money alone does not absolve the debtor from the liability to repay the debt.
It’s worth noting that these distinctions play a vital role in contract law to determine the discharge of obligations and liabilities in specific circumstances.
Essentials of valid attempted performance or tender
A valid tender must fulfil the following conditions listed below:
The respective tender must be unconditional
The offer to perform the respective tender must be unconditional. For example, in the scenario where X, a debtor, proposes to pay Y, the creditor, the outstanding amount by suggesting the purchase of Y’s farmhouse at the specified price, the tender made by X is regarded as unconditional.
The tender money must be of the exact sum due and must be in legal tender money and not by way of promissory notes or cheques. In one of the landmark judgments of the Allahabad High Court, Navin Chandra v. Yogendra Nath Bhargava, (1967), the Hon’ble Allahabad High Court held that “the parties involved were not the businessmen, nor debt arose was due to the business transaction, and also there were no custom or agreement allowing the payment of the respective house rent by cheque.” The owner of the house (landlord) was held empowered to reject the payment made by cheque on the valid ground that it was not a valid tender.
The tender must be made at the proper time and place
The respective tender must be made at the proper time and place, and moreover, the promisee must be provided with an adequate opportunity to determine that the promisor will fulfil the contractual obligations appropriately. The promisee should be granted a fair opportunity to verify and ensure that the promisor will execute the performance in accordance with the agreed-upon terms. This enables the promisee to evaluate and verify that the promisor’s performance aligns with the specified standards and requirements. For example, if a tenant makes an offer to pay the money (rent) to the landlord at a marriage function, the landlord can reject the offer of payment as the tender of money is not at the proper place.
The individual making the tender must be able and willing to perform
It is essential that the person who is making the tender must be able and willing to perform the contract there and then do the entire thing for what he is bound by his promise to do. The respective goods are not required to be in possession of the delivering party; mere control over goods is enough.
The reasonable opportunity for the inspection must be given
The promisee must be provided with a reasonable opportunity to inspect the thing which has been offered by the promisor. Suppose the promisor has offered to deliver anything to the promisee, in this scenario, the promisee must have the appropriate chance of determining that the particular thing offered is the thing which the promisor is bound to deliver as per his promise. It is the receiving party’s duty to verify the same.
Example – On the 1st of March 1873, A and B entered into a contractual agreement in which A agreed to deliver 100 bales of cotton, meeting specific quality requirements, to B’s warehouse. For A’s performance to be considered valid according to the terms stated in this section, A is required to bring the designated cotton to B’s warehouse on the specified day as outlined in the contract. It is necessary for A to provide suitable circumstances that afford B a reasonable opportunity to inspect the cotton and ensure that it matches the quality parameters mentioned by B at the time of contract signing. Additionally, A must ensure that the delivery consists of exactly 100 bales of cotton.
The offer to one of the joint-promisees is valid
Joint promisees refer to multiple individuals or entities who collectively receive the benefit or rights under a promise made in a contract. It is to be understood that an offer to one of the joint promisees holds the same legal consequences as an offer to all of them. Therefore, an offer to perform one of the several joint promises is a valid offer of performance.
The tender must be given in respect of the whole of the obligation
The person making the tender must be able and willing to perform the whole of his obligations of what he is legally bound by his promise to do. For example, a tender of part of the sum due, or a tender that is less in quantity than the contract is not a valid tender.
Effect of refusal of party to perform the promise wholly
According to Section 39 of the Indian Contract Act, 1872, if one of the parties to the contract refuses to perform his part, or somehow disabled himself from performing, his promise in its entirety, such contract is voidable at the end of the promisee, unless the promisee has indicated, through words or actions, his acceptance or agreement to the continuation of the contract.
Example – A and B enter into a contract where A agrees to deliver a custom-made piece of furniture to B’s house within two weeks. However, on the delivery date, A informs B that he will not be able to fulfil his promise due to unforeseen circumstances. In this situation, B has the right to terminate the contract since A has refused to perform his promise entirely. However, if B explicitly states that he is willing to continue with the contract despite A’s non-performance, either through written or verbal communication, the contract will still be valid and binding.
Performance of reciprocal promise
Section 51 of the Indian Contract Act, 1872 states about the circumstances when contracts between the parties require simultaneous performance. In a contract involving reciprocal promises that are meant to be performed simultaneously, the promisor is not required to fulfil his promise unless the promisee is prepared and willing to fulfil his corresponding promise.
Example – A and B enter into a contract, where A promises to deliver a painting to B, and in return, B promises to pay him Rs. 500. According to the terms of the contract, both the delivery of the painting and the payment of Rs. 500 should occur simultaneously.
If, on the agreed-upon date, B is ready and willing to pay Rs. 500 but A fails to deliver the painting, B is not obligated to make the payment. Similarly, if A delivers the painting but B refuses to pay, A is not required to fulfil his promise of delivering the painting.
In this scenario, the performance of each party’s promise is dependent on the willingness and readiness of the other party to fulfil their reciprocal promise.
Discharge of contract by impossibility of performance
A valid contract is a contract that could be fulfilled legitimately, adhering to all the terms outlined in the contract. However, there could be circumstances beyond the control of the parties due to the impossibility of carrying out the contract. In such a scenario, the contract is deemed cancelled or terminated due to the impossibility of performance. As per Section 56 of the Indian Contract Act, 1872, a promise to perform any act that is impossible from the beginning itself is considered void. This principle is truly based on the notion that the law does not recognise the impossible, and that’s why, impossible obligations don’t establish legal obligations.
Contract to perform an act that later becomes impossible or unlawful
A contract between the parties to do a certain act, after its formation, if becomes unlawful or impossible due to any reason beyond the promisor’s control then such contract is declared to be void when the act itself becomes unlawful or impossible due to any reason beyond the control of the promisor.
In the landmark judgement of Taylor v. Caldwell (1863), the defendant (Caldwell) entered into a contract with the plaintiff (Taylor) to utilise the music hall belonging to the defendant for the concert over a specific period of time. However, before the concert, the music hall was destroyed due to fire without any fault of either party. The plaintiff filed a case against the defendant seeking compensation for their loss. The Court in this case dismissed their claim, stating the reasoning that the performance of the contract became physically impossible due to the destruction of the music hall due to fire, which was the pivotal subject matter in this case. This case is also known for the depiction of the doctrine of impossibility in a contract for the very first time.
Compensation for loss arising from the non-performance of an impossible or unlawful act
If one of the contracting parties promised to do something that they knew or could have reasonably known to be impossible or unlawful, and the other party was totally unaware of this fact, in such case the promisor is liable to compensate the promisee for any loss incurred to the party due to the non-performance of the promise.
Landmark judgements
Basanti Bai v. Sri Prafulla Kumar Routrai (2006)
In this case, the Court held that if a person dies without nominating any legal representative then in such a scenario the liability to perform the promises made by the deceased person will lie upon the person who acquires the interest over the subject matters of the contract through that deceased person.
P.L.S.A.R.S., Sabapathi Chetty (Deceased) vs. Krishna Aiyar (1925)
In this particular case, the Court held that, in general, the parties to the tender of performance fix the time and place. The tender of performance must be made in accordance with the time and place as outlined in the contract. If the performance is made within the stipulated time as mentioned in the contract then the promisor is under no further obligations.
Startup v. Macdonald (1843)
In this case, the defendant purchased ten tons of linseed oil to supply it to the plaintiff within the last fourteen days of the month of March. The plaintiff tendered the defendant at night on the fourteenth day. However, the defendant citing the lateness of the tender rejected the acceptance of the tender. The Court held that the defendant should be held liable for the breach of the terms and conditions of the contract and the argument made by him that the late acceptance of the tender was made could not be entertained because, although the acceptance was made late, still the acceptance was made before midnight.
Dixon v. Clark (1847)
In this case, the Court held that merely because the payment was tendered and refused, it doesn’t mean that the debtor is discharged from the liability to pay the debt.
Vidya Vati v. Devi Das (1977)
The Supreme Court upheld the principle stated in Dixon v. Clark (1847) case and the apex Court said that the debtor won’t be discharged of his obligation to pay merely because his tender was refused.
Hungerford Investment Trust Ltd. v. Haridas Mundhra & Ors. (1972)
The Court held that if the contract doesn’t mention any specific time for the performance of the contract then in such a case the law will imply that the parties intended that the obligations mentioned under the contract should be performed within a reasonable time, and the question ‘what is a reasonable time’ is in each specific case is a question of fact.
Saraswat Trading Agency v. Union of India (2002)
In this particular case, the Court held that if a promise has to be performed within a certain time period as outlined in the contract then it should be performed any day before the lapse of the time.
Narayandas Shreeram Somani v. Sangli Bank Ltd. (1965)
In this case, the Supreme Court held that to support a plea of payment, it is not necessary to show that cash passed. For instance, the payment can also be made by means of transfer entries in the books of account.
Conclusion
The most common or natural way of terminating a contract is to perform it. The performance of a contract can be actual or attempted (also known as Tender). The expression performance in its true sense means the performance of a task or action. When a party to a contract offers to perform his promise as stipulated in the contract, and the other party refuses to accept it, the contract is discharged. Attempted performance or tender is equivalent to actual performance. The party who offered to perform is discharged from his obligation. The tender to be valid must be unconditional, made at the proper time, place and manner, made to the promisee or his authorised agent, and must be for the whole obligation.
Frequently Asked Questions (FAQs)
What are the different modes of discharge of a contract?
The different modes of discharge of a contract are as follows:
Discharge by performance;
Discharge by the impossibility of performance;
Discharge by agreement;
Discharge by breach.
The above-mentioned are the modes of discharge of a contract.
What do you understand by the performance of a contract?
The performance of the contract is the most common method of discharging any contract. The performance of a contract means that both the promisor and the promisee accomplished their respective legal obligations created under the contract within the prescribed time and manner (if any).
Who can demand the performance of the contract?
The performance of a contract can be demanded by the promisee only. In case of his death, his representatives can demand performance. Just in case of contracts of a personal nature, they should be performed by the promisor. In other scenarios, it may be performed by his agent, and in case of his death by his legal representatives.
What are the different kinds of discharge of contract by performance?
Discharge of performance may be:
Actual performance
Attempted performance
What is the difference between actual and attempted performance of a contract?
Actual Performance
When both parties accomplish their performance, then such a contract is said to be discharged. It must be taken into account that performance should be complete and precise according to the terms of the agreement. Most of the contracts are discharged by performance in this manner.
Attempted Performance
Attempted performance is only an offer to perform the obligation under the contract. When the promisor agrees to perform the contract but the promisee refuses to accept the performance, then in such case, it is termed as the discharge of contract by attempted performance or tender.
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This article has been replaced by Debapriya Biswas. The article explores the meaning and relevance of gender neutrality before diving into its impact on the current legal scenario and whether India has any such gender-neutral legal provisions as of now.
It has been published by Rachit Garg.
Table of Contents
Introduction
While the doctrine of the Rule of Law establishes that everyone shall be equal before the law, it is not quite so in practicality. Since society itself is quite biased, many communities have been marginalised for centuries. Legal provisions had to be introduced in their favour to protect them from further harm while giving them an equal footing with the other communities by levelling the playing field. This can be seen in the case of women, for whom gender-specific laws are made in almost all the nations around the globe.
However, with the changing times, gender-specific laws are becoming more and more restrictive. Thus, to counter it, gender neutrality is needed to promote further equality.
Origin behind gender-biased laws
The origin of law takes root within social customary practices in the ancient civilizations. These practices soon turned into strict rules to regulate the people within the community before evolving into laws of the land that prescribed punishments for those not following them. Many personal laws relating to marriage started as mere customs and traditions followed by certain communities for years before being acknowledged and followed as legal provisions. Meanwhile, legal provisions against the customs of the Sati system and caste system were framed as per the needs of society and its people.
In essence, one can say that laws have quite a social and historical background, which stands to be true. This is also one of the main reasons why many legal provisions are gender-biased — especially in India.
With the patriarchal mentality still running deep within the customs and traditions of India, many crimes are targeted more towards women than any other gender. Thus, to address such adversity, many legal provisions in India have been framed in a manner that can uplift the marginalised gender.
These legal provisions and policies, while discriminatory in nature, are placed to protect the genders which are most vulnerable to such crimes and social injustices; thus, they are known to be called ‘protective discrimination.’ Such policies can be commonly seen in the form of reservations as well as other more ‘biased’ laws, such as the Protection of Women from Domestic Violence Act of 2005, the Maternity Benefit Act of 1961, and the Dowry Prohibition Act of 1961, among many others.
However, with the changing times, the needs of society are also changing; what was protective before is slowly becoming restrictive now as many cases arise that challenge the very concept behind such gender-specific laws.
Thus, to counter such restrictions, laws should be framed in such a manner that they are gender-neutral in nature and can be adapted to any individual case without creating a bias against the victim or the perpetrator only because they are of a specific gender.
Meaning of gender neutrality
To better understand the concept of gender neutrality, let us first dive into the concept of gender and what exactly it stands for.
While one may think that the meaning of gender is equivalent to their biological sex, it is not quite so. Gender, or gender identity, as it is termed by many, is a term used to identify how an individual expresses themselves, which can be different from their biological sex.
Biological sex is usually referred to as the assigned gender at birth, which can be male, female, or intersex. However, gender identity, or gender, is the manner in which an individual expresses their personal sense of gender, which is not dependent on their biological sex.
In fact, gender is often referred to as a social construct or a label rather than a biological fact; such as blue being the colour of boys while only girls shall wear pink. Or only girls can have long hair, while boys only look suitable in short hairstyles. The list goes on, and everyone may have come across at least one such stereotype or social construct that society usually poses on certain genders.
Based on such societal constructs, some people connect with the pink part, while others connect with the blue. Then there are some that connect with an entirely different colour of their own, such as orange, yellow, or red. Since everyone’s personal sense of gender and its expression can be different from one another, the concept of gender identity lies on a spectrum that is not only restricted to males and females.
The term ‘non-binary’ is used to signify people with different gender identities than just males or females, with the transgender community being a part of this term, as they are the people who identify with a gender that is often opposite to their biological sex.
The term gender neutrality, on the other hand, refers to the practice of using terms that do not distinguish based on one’s gender identity or sex. In simpler terms, it is the etiquette of avoiding distinctions of language, activities, laws, policies, etc. based on the gender identity or sex of any individual with already formed prejudice or preconception.
In a nutshell, this term and the associated movement around it try to establish a system that does not restrict an individual merely based on their gender. The most common example can be seen through the usage of the pronoun ‘they’ instead of ‘he’ or ‘she’ or the usage of gender-neutral terms like ‘people’ and ‘other person’ instead of ‘man’ and ‘woman’ in many academic papers and articles.
Such gender-neutral language can help represent people with different gender identities and sexual orientations, as well as bring gender inclusivity into the legal provisions that are quite needed in the current times.
The usage of such gender-neutral language can also help promote equality among all genders without any bias or any separate introduction of legal provisions to do the same. In countries like India, where equality is still a work in progress, gender-neutral language in its legal provisions can be quite beneficial, as will be discussed in the next few sections of the article.
Need for gender neutrality in India
As touched upon earlier, gender neutrality is a concept that can be beneficial to the legal system of any country since it aims to provide equal protection to all genders without any distinction based on prejudice or preconceptions. Simply introducing gender-neutral laws can change the application and interpretation of the law a lot. Currently, while most of the Indian legal provisions are applied to all genders, there are many that are specifically framed to assume the gender of the victim as well as the offender.
These gender-specific laws, let it be laws on sexual assault, domestic violence, dowry death, etc., are protective for one gender, that is, women. They were framed to tackle the need of the time, and while the need still persists, the issue that arises due to their gender-specific framing is that the purview of protection of the law itself decreases.
In simpler terms, by assuming the gender of the victim and the perpetrator of a crime beforehand, the law is limiting its scope by dictating who can do the crime. Such limitations can result in many cases of a similar nature being ignored and going unreported only because the gender of the victim, the offender, or both differs from what the legal provisions provide for.
In addition to that, such gender-specific laws also create the misconception that the victim is always a woman, which has led to their widespread misuse. Many false cases of domestic violence or dowry have been reported to be lodged against the man and his family, resulting in malicious prosecutions that have lasted for months, if not years.K. Srinivas v. K. Sunita (2014) andMamta v. Pradeep Kumar (2023)can be held as examples of such cases where, in both cases, the wife was found to be harassing the husband and his family with false complaints of domestic abuse with no legitimate evidence. Based on such harassment, the husband had filed for divorce on the ground of mental cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955, which was allowed and decided in the favour of the husband in both cases.
Social perspective
With patriarchy still running deep within the roots of India, preconceptions like men are stronger than women are more common than not. Such preconceived notion leads to the belief that men cannot be victims of sexual assault or harassment, which leads to discouragement in official reporting of cases where such does happen. Even when cases with male victims are reported, they tend to be less believed or even investigated, especially in cases of adult male victims.
The situation becomes even more complicated if the perpetrator is a woman. In such a scenario, not only is the male victim discredited based only on their gender but also ridiculed for behaving in a ‘feminine’ manner or lying for attention with the assumption that the victim enjoyed being assaulted or harassed by the female perpetrator. In fact, the complete unawareness of the concept of men being raped or harassed by women is so widespread that the victim himself may not realize the situation. And if they do, such disregard may even cause him to doubt himself.
Moreover, homosexuality is still considered taboo amongst the public, despite being decriminalised for a good few years. If a man is sexually harassed or assaulted by another man, then it can be wrongfully interpreted as him being a homosexual and result in the ostracization of the victim, along with the unjustified ridiculing and shaming that may follow. This results in the male victims hesitating to disclose their grievances to anyone, let alone attempt to seek justice.
On the other hand, even if we take the case of both the victim and the perpetrator being women, such crimes would still be disregarded or go undetected due to such instances differing from the ‘traditional’ definition and notion of rape, which assumes that rape can only be committed through forceful penile-vaginal intercourse. Due to this biased assumption, victims of such situations would not be believed and might even be ridiculed or made to doubt their own minds.
Thus, it is not only the male victims who suffer through such disregard and scrutiny due to a lack of gender neutrality but also the female victims. Framing legal provisions in a more gender-neutral manner can be beneficial for all genders, including transgender people.
Legal perspective
Despite the significant progress India has made towards gender equality in the past few years, there are still many issues that persist that are not resolvable by making provisions solely to protect one gender. There is no denying that the concept of protective discrimination has helped a lot in uplifting the marginalised communities of society, but it is high time to take the next step towards gender equality by framing our laws in a more gender-neutral manner.
While some customs and laws may still remain gender-specific, such as the provisions against the Sati system or even the dowry system, other laws such as family law, civil law, and criminal law may benefit a lot from a more gender-neutral stance. It would not only make Indian legal provisions gender inclusive for all types of gender identity but also avoid the prejudice that may result due to the usage of gendered pronouns.
The system of ‘default’ genders in criminal and family laws limits the scope of application by creating a generalisation. This generalisation, in turn, results in the harm to those who are victims of cases differing from the ‘norm’ that is mentioned under the law and precedents. Thus, to counter such generalisation, there is a need to address through terms that do not distinguish gender; such as the usage of the pronoun ‘they’, as well as the usage of terms such as ‘people’ and ‘other person’ instead of gender-specific terms.
Usage of such terminology, especially in criminal legal provisions, can prevent the disregard of a lot of crimes merely on the basis of the gender of the parties involved. Specifically, in cases of sexual harassment and assault, where the offender and the victim are assumed to be male and female, respectively, by default. Thus, we are completely ignoring transgenders who identify by other pronouns, as well as male victims and female offenders.
Currently, Section 375 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) states the definition of rape or sexual assault, which has gone through many amendments to be inclusive of what may be identified as ‘rape’. However, while the definition has been framed to accommodate the changing times and its needs, it has still failed to protect anyone beyond the female victims and only from male offenders due to its rigid gender-specific language like ‘A man is said to commit rape…’
Despite the decriminalisation of homosexuality after the case Navtej Singh Johar v. Union of India (2018), the concept of sexual assault or rape by the same gender offender still seems to be a foreign concept as per the literal interpretation of Section 375 of the IPC. Ironically, while the IPC makes rape gender-specific, the POCSO Act protects children from sexual abuse regardless of their gender. In a nutshell, a minor male rape victim may get justice, but not an adult one, under the Indian legal system.
In addition to that, there is no provision criminalising marital rape in India only due to the fact that the perpetrator of rape is the victim’s husband. While it can be held as a ground for divorce under Section 13 (1) (ia) of the Hindu Marriage Act, there is no actual remedy beyond a divorce for such a heinous crime. In fact, even with divorce as the only remedy for marital rape, it can only be opted by women as a ground for divorce since the prejudice still persists that the victim of marital rape can only be the wife and not the husband.
Meanwhile, in family law, many personal laws on marriage, divorce, and adoption are still rooted in outdated beliefs that are often discriminatory in nature. This includes the belief that marriage can only be legalised between a ‘biological’ man and a ‘biological’ woman, which completely disregards not only the transgender community but also the same-sex queer couples.
In addition to that, many legal provisions dealing with succession and inheritance, such as the Hindu Succession Act of 1956, show a glaring bias towards male heirs. Even in the case of the inheritance of the wife, the legal heirs of the husband are given preferential treatment before the maternal family of the deceased wife, as per Section 16 of the previously mentioned Act. This is also the case for the Muslim personal law that is governed by the Muslim Personal Law (Shariat) Application Act of 1937, since it also discriminates heavily against women in the name of customs and traditions.
With such preferentially biased laws and skewed societal norms, there is a need for the introduction of gender-neutral laws to not only protect the people aggrieved by the gender-biased treatment but also to educate the general public about the same.
Judicial view on gender neutrality
The Indian Judiciary has acted as the most active advocates as well as critics of gender neutrality for quite a few years. With its progressive interpretations of the Constitutional philosophy, many judgements like the National Legal Services Authority v. Union of India (2014), where the rights of transgender were acknowledged as the third and separate gender, as well as the Navtej Singh Johar case, where homosexuality was decriminalised by the Supreme Court in 2018, have been made.
While this was not the first instance where the judiciary stepped up to promote gender equality, this is one of the more significant ones that opened a completely new arena in the Indian legal system, where previously the concept of gender or the love between them did not extend beyond a man and woman together. The concept of gender neutrality was pushed for even more after this development, given how many personal and family laws are distinguished based on the gender of the partners, as mentioned earlier.
Gender neutrality in legal provisions for Marriage
To tackle this gender-based distinction, the Supreme Court also formulated a Constitutional Bench to hear the petition filed for legalising same-sex marriages in the case of Supriyo v. Union of India (2023).The main arguments that were raised against this were the social instability, citing that India was not yet ready for such laws and that it may be against the culture that India stands for.
On the other hand, the arguments in favour of same-sex marriage contended that not allowing such marriages goes against Article 14 and Article 21 of the Indian Constitution, as well as several other precedents like Shakti Vahini v. Union of India (2018), in which the Supreme Court held that every adult has the basic right to choose whomever they wish to marry.
There were also many contemplations on whether a completely new and gender-neutral provision should be introduced for same-sex marriages. Many people even contended that maybe same-sex marriages can be legalised under the provisions of the Special Marriage Act of 1954, such as Section 4, if amended to be more gender inclusive.
However, as held by the Supreme Court in its recent judgement on 17 October 2023, legalising same-sex marriages is not something in the hands of the Judiciary since they cannot interfere with the workings of the Legislature. The Judiciary cannot make law or read the wordings differently than its intention. It can only interpret the law, not make the law. While the Court recognised that the right to marry or enter a union cannot be restricted on the basis of sexual orientation, the Judiciary cannot interpret law beyond its wordings. Thus, the broader interpretation of the Special Marriage Act to include same-sex marriages is out of the scope of the Judiciary’s power.
The Court urged the Centre to form a committee to address the concerns of same-sex couples and asserted that the Legislature needs to enact a law regarding same-sex marriages to address gender equality in marriages. In addition to that, the Court also asserted that unmarried couples, including queer couples, cannot adopt children. This ruling was asserted on the view that joint adoption without any legalised marriage is against the laws prescribed.
Thus, in a nutshell, India is still quite far away from legalising same-sex marriages despite the Judiciary supporting the ideology but lacking any actions behind the words.
Gender neutrality in rape laws
As mentioned earlier, this was not the first case where the judiciary talked about gender equality and neutrality. One of the very first cases where gender neutrality and the inclusivity of other genders were brought up was the case of Smt. Sudesh Jhaku v. K.C.J. (1996), where the Delhi High Court highlighted the need for protection of male rape victims under the IPC. The Court iterated that male victims were owed the same rights and protections as female victims for the same crime, without any distinctions to be made on the basis of their gender.
However, there were also cases like Anuj Garg v. Hotel Association of India (2008), where the judiciary stepped against the ideology of gender neutrality. In this case, the Supreme Court held that a woman cannot commit or be accused of sexual harassment since its legal definition at the time only restricted men to being convicted as the perpetrator. It was not until 2013 that the definition of sexual harassment was made more gender-neutral, allowing the purview to extend beyond the victim being female and the offender being male.
Similarly, in the case of Priya Patel v. State of Madhya Pradesh (2006), the Supreme Court held that under the purview of Section 375 of the IPC, only a man can commit rape and not a woman. Thus, as was in the present case, a woman cannot be convicted for gang rape under this Section no matter how much her contribution was towards such a heinous crime.
One can clearly observe the stark contrast between the judgements, where one talks about gender neutrality for the protection of male victims while the other reinforces the traditional ideology that only a man can commit rape or harassment and not a woman. There is a need for amendments in the definition of a few gender-specific laws, such as rape and domestic violence, to make them more inclusive for the protection of the victims as well as to hold every perpetrator accountable.
In fact, the definition of rape has been amended quite a few times earlier, with the most significant one being in the Criminal (Amendment) Act of 2013, which classified all types of penetration, let it be vaginal, oral, anal, etc., as sexual assault. Earlier, only penile-vaginal penetration was classified as rape. This amendment was brought in after the landmark judgement of Mukesh v. State for NCT of Delhi (2012), or the Nirbhaya case. Similarly, another amendment is needed to introduce gender-neutral language in the Indian criminal laws.
In another case, Sakshi v. Union of India (1997), the Supreme Court referred the matter concerning male rape victims and the gender-neutral application of laws to the Law Commission, which later found its way into the Law Commission’s 172nd Report. It eventually led to the introduction of the Criminal Law Amendment Bill of 2012 in the Lok Sabha, which was marked as a significant development for gender-neutrality in India. This Bill planned to enact more gender-neutral language for gender-specific laws like rape, sexual harassment, and domestic violence but was halted at that stage due to various issues.
With a similar agenda and goals, the Criminal Law Amendment Bill of 2019 was also attempted to be enacted with the aim of acknowledging and empathising with both transgender and male sexual assault/harassment victims. We will cover such gender-neutral Bills and policies in the next part of the article.
Current Indian provisions on gender neutrality
As mentioned earlier, India does not have a designated or specific Gender Neutrality Bill. However, despite that, most of the Indian legal provisions apply to all genders, and there are many legal provisions and policies advocating for gender equality as well as neutrality. Some of these provisions include:
Constitution of India
The Constitution of India (1950), while not explicitly providing for gender neutrality, covers many such provisions that promote equality while attempting to eliminate any discrimination based on religion, race, caste, place of birth, sex, or any of them. However, there are also provisions under the Indian Constitution that allow gender-specific policies to be framed for the uplifting of the marginalised genders.
Fundamental Rights
Article 14 of the Indian Constitution lays down the provision for equality before the law, which is based on the doctrine of the Rule of Law. According to this Article, every person is equal in the eyes of the law and shall have equal protection under such law within the territory of India. This fundamental right can be invoked by any person within Indian territory, regardless of whether they are a citizen or not. However, reasonable classification based on rational nexus and intelligible differentia is permitted. In simpler terms, any differentiation based on fair and reasonable grounds with a rational explanation behind such classifications shall be held legal and constitutional.
Furthermore, since the Article talks about equality before the law and equal protection under such laws, it can be interpreted to advocate for the right to equal treatment in similar situations regardless of the gender or sexual orientation of the individual. This shall be imposed for both the rights and duties conferred.
In the landmark judgement of the NALSA case, the Supreme Court recognized the adversities faced by the transgender community due to the non-recognition of their gender. The Court highlighted how this discrimination and prejudice based on gender is violative of Article 14 as well as Article 21 since it directly affects their dignity and personal liberty.
The Court held that the exclusion of transgenders from Indian policies and legal provisions denies them equality before the law and the equal protection of the law as conferred on the other genders. Such exclusion results in widespread discrimination against the transgender community, which could only be resolved by proper accommodation in the law through gender-inclusive language.
On the other hand, Article 15 of the Constitution prohibits discrimination in any manner, let it be on the grounds of religion, race, caste, place of birth, sex, or any of them. However, it also empowers the State under clause (3) to make special policies and provisions for the upliftment of the vulnerable sections of society, including women.
One may wonder if it is equality when the State is empowered to frame specifically favourable laws for some sections of society. Many arguments were also raised, questioning whether Article 15(3) is against equality before the law.
This question was answered through many judicial precedents, the most recent of which is Paramjit Singh v. State of Punjab (2009), in which it was held that the policies for the upliftment and protection of a certain gender or oppressed section of society are not discriminatory against the rest of society. They simply protect the interests of those who have been discriminated against and oppressed for far too long.
However, as held by the Supreme Court in the case of M.R. Balaji v. State of Mysore (1963), the interests of the weaker and marginalised sections of society should also be adjusted alongside the rest of society. Protective discrimination should not extend to preferential treatment.
Article 16 of the Indian Constitution deals with the fundamental right to equality in the context of employment. This provision specifically deals with public employment, mandating the State to provide equal opportunity to every citizen for the appointment or employment of any office under it with no discrimination except the required qualifications for the office or post. The selection can be done based on merit and qualifications but not on the grounds of religion, race, caste, sex, descent, place of birth, etc.
While not directly dealing with gender neutrality, Article 16 still ensures that there is no discrimination regarding employment in the public sector only due to one’s gender identity or sexual orientation. This makes the provision gender inclusive in nature.
Directive Principles of State Policy
Meanwhile, Article 39(a) of the Constitution states that every citizen of India, regardless of their gender or sex, has the right to adequate means of livelihood. Every individual has the right to get equal pay for the same or similar work done. Based on this Article, many legislations have been enacted to ensure gender equality as well as protection, especially in the context of livelihood and employment. Some of these provisions include:
Lastly, Article 42 of the Constitution empowers the State to make legal provisions for securing a proper working environment and conditions for women during maternity. Based on this Directive Principle, the Maternity Benefit Act of 1961 was enacted.
Beyond this, any situations or circumstances that are not covered by the above-mentioned Articles will be examined in light of Article 14.
Transgender Act, 2019
The Transgender Persons (Protection of Rights) Act of 2019, or the ‘Transgender Act’, is a piece of legislation that was enacted with the aim to recognize the rights of the transgender people and to establish provisions prohibiting discrimination against them. The Act also aimed to establish the National Council for Transgender Persons under Section 16, which would act as an advisor for the Government while framing policies or schemes addressing transgender issues.
The Transgender Act was passed with the intention of bringing gender equality by prohibiting discrimination against transgender people and providing them with equal opportunity as the other genders. However, the Act was hardly able to implement that intention effectively.
The Act, while it could be claimed as a good attempt, still failed to recognize and address the socio-legal issues faced by transgender people, which went beyond just discrimination. The Act specified that only after the registration of proof of gender reassignment surgery can a transgender person legally change their identity, which can be quite challenging in cases where transgender people do not have enough income to do so. It also fails to recognize that not all people who identify with the other gender may want such intrusive surgery on their bodies.
Furthermore, while the Act empowers the State to enact welfare policies for transgender people, there has been no such enactment or even clarity in regard to how such policies shall be implemented.
In addition to that, the Transgender Act also fails to outline the penalty for discrimination against transgender people under its provisions, despite it being one of the major objectives of the Act. In fact, even in cases of sexual offences against transgender persons, the penalty is given in the form of imprisonment for no less than six months, which could be extended to two years at most. Further fines could be included in the penalty as well, as prescribed by the Court.
In comparison to the provisions for sexual assault against women under the IPC, this penalty is significantly less. Section 375 of the IPC lays down the penalty for rape in the form of imprisonment for no less than seven years, which could extend to life imprisonment along with a hefty fine.
As said earlier, while an attempt was made with the Transgender Act, a lot still needs to be worked on to improve the glaring disparity between the genders that even the legal provisions showcase at times.
This Act was formed on the basis of the ‘Vishaka Guidelines‘ given by the Supreme Court in the landmark case of Vishaka v. State of Rajasthan (1997), which was the first case to highlight the issues faced by women in workplaces and the lack of remedy against such harassment. These guidelines, as well as the resulting Act, were drawn on the principles of equality given under Articles 14 and 15 of the Indian Constitution, along with other international conventions like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) that India is a part of.
As per the principles and guidelines that it is based on, the POSH Act defines the term sexual harassment at the workplace while also criminalising it. The Act also provides for the establishment of Internal Complaints Committees (ICC) that can handle such matters delicately and sincerely.
However, while the Act may seem more gender-specific with a heavy emphasis towards the harassment faced by women employees, many provisions under the POSH Act are gender-neutral in their application and can be interpreted as such for employees regardless of their gender.
Many provisions under the POSH Act, such as Section 14, which deals with the punishment of false evidence and malicious complaints, are gender-neutral in their terminology and protect the party from being falsely implicated. It also emphasises the obligation of the employer to prohibit workplace harassment and prevent it from happening further once discovered.
The Act also establishes a clear complaint mechanism to provide a fair trial and hearing for all the parties involved. Any non-compliance with its provisions would result in the employer paying for damages to the victims and, in the worst case scenario, revocation of their business licence.
POCSO Act, 2012
The Protection of Children from Sexual Offences Act of 2012, or the ‘POCSO’ Act, is a legislation enacted with the aim to protect children under the age of majority from sexual abuse and harassment. Its provisions cover a variety of offences including rape, pornography, harassment, and assault.
The language of the Act is gender inclusive, since it aims to protect children from exploitation regardless of their gender identity or sexual orientation. Section 2(1)(d) of the POCSO Act defines the term ‘child’ with a gender-neutral stance, allowing the protection of even minor males from sexual assault and harassment that even adult males don’t have explicit remedies for.
As held by the Delhi High Court in the case of Rakesh v. State of NCT of Delhi (2023), the POCSO Act is applicable to children of all genders, and claiming that it is being misused due to its gender-inclusive terminology is misleading. In the present case, the Applicant was accused of sexual assault and criminal intimidation of a minor girl who was merely seven years old at the time of the crime. The Applicant argued that he had only attempted to get his money back from the father of the victim (the complainant) by pressuring him and keeping a gun on his minor daughter’s shoulder. He contended for the testimony to be re-done before the Court.
The Delhi High Court found the wording of the petition insensitive and dismissed the plea for re-examination of the victim as a witness, stating that not only would it be a painful recollection for the minor girl but also not seemingly needed.
Criminal Law Amendment Bill, 2019
The Criminal Amendment Bill of 2019 is one of the most prominent attempts to introduce gender-neutral language in Criminal law. While it is not the first Bill to make this attempt, it is the first one to acknowledge and address the rights and issues of all genders in entirety, including male and transgender victims.
The Bill aimed to make not only the provisions of sexual assault gender-neutral but also other crimes such as sexual harassment, eve-teasing, stalking, domestic violence, and voyeurism. In addition to these, other omissions and amendments were stated to be made through the Bill.
The Bill was based on the principle laid down in the case of Criminal Justice Society of India v. Union of India (2018), where the Supreme Court discussed the need for gender-neutral legal provisions for rape as well as other crimes and asked for the Government to consider it once.
The Bill is also based on international conventions like the Universal Declaration of Human Rights, 1948 that aims to preserve all human rights pertaining to freedom and equality. With its borrowed principle, the Bill aims to make Indian criminal laws more gender inclusive and flexible to give justice to even the rarest of exceptions.
The aim of such reformation was to revamp the criminal laws of the nation in accordance with current times. Since the rapid development of technology, the scope of crime has increased much beyond physical means. This Bill recognises such e-crimes and addresses them within its provisions.
In addition to that, the Bill aims to make all its provisions more gender inclusive as well as introduce new gender-neutral provisions for offences that were previously discussed in the Criminal Amendment Bill of 2019. Currently, all three Bills have only been introduced and are yet to be discussed and enacted.
UCC
In India, all family and succession law is governed by personal laws that may differ as per their religion. However, most of these laws, as mentioned earlier in the article, are not gender-neutral in nature. In fact, many of these laws seem to be preferential towards one gender or the other depending on their provisions, while excluding transgender or queer people in most places.
Thus, to address this, the Government has proposed the Uniform Civil Code (hereinafter referred to as ‘UCC’) to replace the existing system of personal Civil laws and bring uniformity among the citizens while not differentiating on the basis of religion or gender. Article 44 of the Indian Constitution also empowers the State to enact a UCC to ensure justice for people deprived of the influence of religion. However, as of now, UCC has yet to be passed or enacted but has already been introduced in the Parliament as a private member bill.
The most glaring issue with the existing personal laws is that most of them do not account for same-sex or queer couples at all, due to their orthodox provisions that are directly based on traditions and customs. The enactment of UCC can lead to the accommodation of same-sex couples along with an easier way of legalising their marriage, divorce, and adoption of children. Transgender communities would also benefit from such changes, especially if the UCC uses more gender-inclusive language.
Other policies and provisions
Besides the provisions mentioned above, India also has other laws that are gender-inclusive in nature. Such as the Hindu Marriage Act of 1955, under which a wife as well as the husband can claim for maintenance and permanent alimony if they are unable to sustain themselves after or during the divorce. Section 25 talks about the alimony and maintenance part, while Section 24 provides for the maintenance of the fees of divorce proceedings, which can be opted for by either of the spouses.
In addition to this, India has also implemented reservation policies to help fill the gap caused due to gender disparity seen in the composition of political and educational bodies. By reserving seats for women and transgender persons, such policies aim to bridge the gap one at a time while also ensuring the participation of these marginalised groups so that they can get the means to raise their own views and issues.
From the reservation of seats for women in public colleges and universities to the reservation of women and transgender persons in the Panchayat, Lok Sabha, and other political bodies, all these attempts are made to uplift the other genders and their interests while accommodating them alongside the interests of society.
Other countries with gender neutral laws
With globalisation, many concepts like gender neutrality and feminism have reached the farthest corners of the world, spreading awareness of the need for such concepts as well as their application through the legal provisions of a nation. Even now, many countries in the world are opting for more gender-neutral laws and language to promote more gender inclusivity among their citizens.
More than sixty-three countries, including most of the countries in Europe and North America, such as the UK, Canada, Germany, Finland, Ireland, and Iceland, have enacted gender-neutral laws. Even many Asian countries, such as South Korea, Bhutan, and Kazakhstan, have modified their criminal laws in a more gender-inclusive manner. Many of these nations have done so to align with the international conventions they have ratified under the United Nations, which India has also been a part of for a long time.
However, just like India, there are still many countries that have not yet opted for gender neutrality in all their legal provisions. While many of the laws are gender-neutral around the globe, some laws that are made specifically for women or transgender people, whether for their upliftment or protection, still need to stand as they are due to the glaring disparity between the genders in many such nations.
While it is also true that many Nations have gender-specific laws that are more discriminatory in nature than protective, such as the criminalisation of homosexuality or gender reassignment, the countries that do have such laws are much farther from the idea of gender equality, let alone gender neutrality.
Thus, gender neutrality is a work in progress for not only India but also other foreign nations.
Different perspectives on gender neutral laws
Just like any concept that may exist, gender neutrality also has some people advocating it while others critiquing it. Let us go through the arguments in favour and against gender-neutral laws to get a better understanding of the public opinion surrounding them.
In favour
The first argument that is always highlighted in favour of gender-neutral laws is how these laws are the next step to gender equality and how they can bring a better sense of equality and inclusivity to all genders.
While gender-specific laws have also helped the promotion and upliftment of the oppressed genders by great strides, the discrimination based on gender and sex created due to such laws has resulted in generalisation that has caused quite a lot of harm. In addition to that, the prejudice and preconception due to these generalised laws have suppressed many cases only because the genders of the parties involved differ from the ‘default’ ones recognised under the law. The biggest example of this being the rape laws, which have generalised all the rape victims to only females and the offenders to males.
Due to a lack of awareness, many people fail to recognise that even if a problem is not being talked about or showcased in mainstream media, it does not mean the problem ceases to exist. For instance, sexual assault on men by women, while rarer than vice versa, still exists despite not being discussed openly.
The second argument that is often put forth in favour of gender neutrality is how such gender-inclusive laws could also bring awareness to the concepts of gender identity and sexual orientation. Since these concepts are still quite new in many nations, including India, gender-neutral laws could bring more light to them and help in building more understanding among the general public about such concepts. While the social aspects of gender-neutral legal provisions may be complex to understand, they can be simplified with enough time and patience.
The third argument in favour of the usage of gender-neutral language for the legal provisions of a State is that it not only eliminates all types of discrimination based on sex and gender but also addresses issues faced by all genders without disregarding any of them. Some of these issues include unequal pay of female workers, the false implications on men for harassment, the discrimination faced by transgender persons during medical treatment and procedures, etc.
By removing all the legal provisions that restrict the scope of their application by specifying the gender of the parties, we can create a more gender-inclusive and understanding society where no one has to disregard the injustice happening to them only because their gender is traditionally regarded as the perpetrator of the crime rather than the victim.
Against
Just as there are arguments in favour of gender neutrality, there are also arguments against it. The most common argument against it is that introducing gender-neutral laws could lead to the removal of laws protecting women, especially when patriarchal roots are still very evident in Indian society.
The slogan ‘Gender just, gender-sensitive but not gender-neutral rape laws,’ was chanted by many women activists and organisations after the Nirbhaya gang rape case in 2012. It happened almost at the same time as the Criminal Amendment Bill of 2012 was being introduced in Parliament, which talked about gender neutrality in the Indian criminal legal system.
The fear that gender neutrality could lead to widening the still persisting gender gap led to a lot of protests. Many protesters justified their points with the fact that most countries with gender-neutral legal provisions do not have the deep-rooted patriarchal thinking that can still be found in Indian society.
In such a scenario, if gender-neutral laws are introduced, then male offenders or their connections could use such laws to file counter-complaints to pressure the victims to withdraw their complaints. And fighting two cases may be quite excessive for families who cannot even afford to pay the fee for a lawyer. Thus, such gender-neutral laws may lead to more harm than good.
Most of the activists supported the idea of positive discrimination, stating that it helps to undo the social and financial backwardness caused by centuries of oppression faced by women. India is still quite far away from becoming completely gender-neutral, especially with how women are still oppressed and preyed upon in the country. If gender-neutral laws are used in such times, then it would only lead to misuse by giving leverage to the perpetrator and suppressing the marginalised genders like females again by blackmailing them through false counter-complaints.
The second argument that is often brought against the gender-neutral approach to legal provisions is that it is against the tradition and culture of many, especially when given in the context of family laws that are governed by the personal laws in India. Introducing gender-neutral terminology in marriage, divorce, and inheritance laws can be seen as challenging the traditional customs of many religions, especially when taken in the context of religions like Muslim law, the believers of which are quite particular about their customs.
These rigid conservative or traditional views held by a considerable segment of the Indian population led to gender neutrality facing a lot of resistance even at the simple mention of its concept. It is further hindered by those who are unaware of the issues faced by men and transgender persons, resulting in difficulty in the implementation of gender-neutral laws.
After all, if people are not even aware that men can be victims of rape too and women can sexually harass too, then how can such actions even be recognised as crimes, let alone be prosecuted and get justice? This is also the third argument put forth by many critics, stating that the general public of India is not even aware of gender identity or even its equality. In such a scenario, how could the implementation of gender-neutral laws be effective or even useful?
As argued by those opposing gender-neutral laws, with an unaware public that still has deep-rooted patriarchal beliefs, a gender-neutral approach towards legal provisions like rape and domestic violence would be ineffective at best and harmful at worst.
Analysis of gender neutrality and gender equality
At the current stage, most of the Indian legal provisions, except some criminal provisions and family laws, are applicable to every citizen, regardless of their gender. Some provisions and legislations are gender-specific, but they are enacted as per Article 15(3) of the Indian Constitution to help with the upliftment of women after years of oppression and objectification.
While the current times are indeed rapidly changing, the truth behind it is that we are still quite far away from a gender-neutral world since the society we reside in is still quite gendered at its core. In such a scenario, absolute equality for all genders could come off as a form of injustice, especially when genders like females and transgender persons are still marginalised.
While one may argue that gender neutrality could resolve the issues of both the marginalised genders while also addressing the issues of male victims, the danger of its misuse is much greater than its actual usage. However, it can also be argued that the gender-specific laws that are currently enacted are also misused, just as we fear that the gender-neutral laws will be done the same.
It is true that bringing a gender-neutral approach to the Indian legal provisions would not diminish the rights of the female victims but rather give protection and remedy to the other genders with similar experiences. However, the question that arises here is whether absolute gender equality through gender neutrality is advisable when even gender equality is not achieved completely.
Even now, a high ratio of crimes committed in India are against women, with a copious number of those heinous crimes being against women. At such a stage, are gender-neutral laws the right approach for gender equality?
However, if we assume that India is not yet ready for gender-neutral laws, then what shall happen to the victims who are suffering from the same crimes but are not protected under its provisions only because their gender differs from the ones mentioned in the law? Even if such cases are quite few in comparison to their counterparts, shall they be ignored only on the basis of that simple fact?
As held by Justice Sharma of the Delhi High Court in the recent case of Rakesh v. UOI, all laws have the ‘potential to be misused’, whether they be gender-specific laws or gender-neutral ones like the POCSO Act. These ‘misuses’ can be in the form of malicious prosecution, blackmail, intimidation, etc. However, that does not mean the Legislature should just cease to enact such laws. All laws are enacted to address the larger interests of society and give justice to those who have suffered due to such crimes.
While there is still a huge power imbalance between the genders due to centuries of oppression and marginalisation, that does not mean gender neutrality cannot be implemented. It is true that levelling the legal field by making it gender-neutral at a stage where the gap between the genders is still present might seem quite unjust. However, not doing so could also lead to injustice and unawareness to those who are suffering due to a lack of gender inclusivity.
The best way to tackle such a situation is by first acknowledging the arguments of both sides and spreading awareness about the issues raised by them. As mentioned earlier, the unawareness of the general population can stand as the biggest hurdle in the implementation of such legal provisions. Thus, the best place to start is by educating the masses about crimes that can be gender-neutral too.
Such awareness campaigns can help a lot in setting the stage for the next step in gender equality.
Conclusion
With the progression of time, the needs of the people are also evolving and changing. In such a situation, the legal provisions of a nation also need to be changed and amended as per the requirements of the public. In the current situation, India has made huge improvements in uplifting marginalised genders through its legal provisions. Now, the next step that is needed to further our goal towards gender equality is introducing gender-neutral language to our provisions to make them inclusive without any generalisation or prejudice.
Frequently Asked Questions (FAQs)
1. What is the difference between Gender Identity and Sexual orientation?
Gender identity is a term used to identify how an individual expresses their personal sense of gender, which is not dependent on their biological sex. Since gender is a social construct, whichever construct one identifies more with would be their gender identity. Sexual orientation, on the other hand, depends on which gender an individual is attracted to. If a man is attracted to a woman, he is straight. If he is attracted to a man, he is gay, and if he is attracted to both men and women, he is bisexual. Similarly, there are many other sexual orientations, just as there are many other genders.
2. What is the need for gender-specific laws?
Gender-specific laws, while discriminatory in nature, are enacted to protect the genders that are most vulnerable to such crimes and social injustices. They promote gender equality by uplifting the marginalised genders, such as women and transgender people. They act as a stepping stone to level the field for the genders that have been oppressed for years.
3. What are the drawbacks of gender-specific laws?
While gender-specific laws act as protective provisions for marginalised genders, many people also attempt to abuse and misuse them. This can be in the form of using these provisions to file malicious complaints against others and even blackmailing others to file such complaints if not complying with their demands. Furthermore, these gender-specific laws can often suppress the experiences of genders not mentioned under their provisions, such as male and transgender rape victims under Section 375 of the IPC.
References
M. Seervai, Constitutional Law of India, Universal Law Publishing Co., Reprint 2013.
M. Bakshi, The Constitution of India, Universal Law Publishing Co., 2014.
Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, Allahabad, 37th edition, 2001.
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The General Data Protection Regulation, being the gold standard for data protection and having placed a variety of restrictions and checks on the processing of personal data, does not prohibit the export of personal data of EU residents and citizens to a country outside the EU for processing, but the regulation definitely puts down a restriction on such a transfer of personal data. This restriction has its own tiered checkpoints since it is a known fact that in a global economy with diverse business needs, it is naïve to think and expect exclusive data-localization and to ban the cross border transfers of data.
Any personal data transfer to a “third country” where otherwise such a transfer is restricted by the GDPR is termed a “restricted transfer” and needs to be scrutinised and then performed. This barrier is simply to ensure the personal data shipped to such a non-EU region is protected in the same measure as is intended by GDPR.
Background of data transfer impact assessment
The mystery of what could happen to such personal data, whether in transit or at rest, needs to dissolve. And the bottom line is that there is no room for any mystery.
To give an example of the need for personal data transfer to other countries, HR is one of the largest domains that needs to transfer data (sometimes very sensitive data) to other countries for processing. This data export could be because either the parent company of the HR department or any subsidiary of the organisation resides in a country outside the EU and the HR department’s CRM or any of its SaaS system houses. Massive amounts of employee data need to be, at some point of time and for some meaningful purpose, exported to countries where either the parent organisation resides or a subsidiary organisation is based. As stated earlier, the organization’s specific business needs to command such a transfer of data from one geo-location to another, even though this might be invisible to a user of such data i.e., the HR department in layman’s terms.
Considering the tight control laid down on personal data movement, there has been much uncertainty regarding personal data transfer to third countries (countries outside the EU).
However, this is not to be thought of as an impossible task. That is, the captured or collected personal data can surely be taken to different longitudes and latitudes for the sake of processing to a good extent. For this to be a reality, there is an obvious need for a data-exporting organisation (which could be a data controller or even a data processor) to carefully assess its needs as well as the technical and organisational safeguards that must come into play for a cross border transfer of personal data on a case to case basis to ensure sufficient protection from unwanted and uncontrolled consequences.
What is transfer impact assessment
A ‘Transfer Impact Assessment’ (TIA) is a risk assessment performed when personal data from the EU is being thought of to be transferred to certain non-EU countries. As stated earlier, a TIA is conducted to make sure that when personal data of individuals in the EU is transferred outside of the EU, it is protected and safeguarded in the same manner as GDPR lays down.
Questions that come to the forefront while planning such a data transfer include:
What is the business justification for sending data to an organisation based in another country?
Which country/region is the personal data being sent to?
Do these countries/regions offer an adequate level of protection for the personal data being exported to them? If the country set to receive personal data is subject to an adequacy decision, this means personal data can be freely sent to such a country.
If such a country/region importing the personal data is not subject to an adequacy decision, then it needs to be seen whether appropriate safeguards such as binding corporate rules (BCR) or commonly used standard contractual clauses (SCC) have been put in place?
Does any other condition(s) apply as per the GDPR that would allow/hinder the data-exporting organisation from sending its personal data to those countries/regions?
If you determine that you need appropriate safeguards in place, such as SCCs, to govern the transfer of personal data outside of the EU, then it may be necessary to conduct a TIA.
TIA’s will also focus on whether the laws of the importer country would permit the recipient country’s government agencies access to the personal data.
TIA is mentioned in Clause 14 of Standard Contractual Clauses (discussed later in the document).
When and why is transfer impact assessment needed
A TIA may be performed whenever there is a need for performing a “restricted transfer.”
As per the Schrems II ruling, entities that need to transfer personal data to non-EU and non-UK countries must conduct TIA to verify if the laws of such an importing country would have any impact on the efficiency and efficacy of the Standard Contractual Clauses (SCC). The mere signing of the SCC does not ensure protections, enforceable rights or legal remedies that are even close to those conferred under GDPR.
Who performs transfer impact assessment
Any entity, whether a data controller or a data processor, that ships personal data to a region other than EU member states needs to carry out TIA in order to check if the relevant transfer of personal data will be safe or not. This assessment has GDPR as its benchmark as far as the broad requirements are concerned. This is no surprise, as GDPR is still the gold standard for personal data protection.
Transfers that are made under Article 46 GDPR are relied on only if the data exporter has undertaken TIA, ensuring that the personal data is protected and matches the standards of GDPR.
Therefore, in GDPR terms, any entity, whether it is the data controller or data processor, that needs to transfer data to a sub-entity (or rather, a processor) shall need to perform a detailed TIA.
What are the broad tasks in a transfer impact assessment
The European Data Protection Board (EDPB, as it is known) has taken the lead in outlining much of GDPR’s objectives. In pursuance of this, EDPB has made several recommendations related to TIA. It has laid down six steps for TIA that set the tone for a deeper need, which can evolve over a period of time as both technology and the internet advance.
The six steps are as follows:
Know your transfer- Where is the data being shipped and what is the purpose of it?
Verify your transfer tools- Does the importer country have an adequate decision in its favor or does a SCC or a BCR cover such a relationship?
Local country assessment- Check the national and local laws of the importer country to see if it in any manner has an undesired effect on the protection and safety of the personal data being exported to such a country, whether the data is at rest or in transit.
Identify supplementary measures- Consider measures that raise the protection levels when such a “third country” is the importer. Measures could include pseudonymization, anonymization, etc.
Formalise the supplementary measures- Use enforceable instruments to formalise the measures identified in step 4.
Re-evaluate- This is a constant and periodic exercise to perform as the importer country will undergo developments in legislation that impact the personal data shipped to it. Usually, it is convenient and doable to have a local lawyer assist in this task.
This is no surprise that there is no best way to conduct a TIA, but the organisations that have walked a longer path in the journey of GDPR compliance have developed their own TIA methodology based on experience, skill and best practises pouring in from limited thought leadership.
How can legal fraternity render help
Legal experts or lawyers who work in the GDPR space or data protection/privacy laws are a boon in these times and also for aiding TIAs.
The major challenge that these law experts can work on is pertaining to the local laws of the recipient country. Knowledge of these laws, being so vast and spread out, is not easily available on the internet and the sources of information may lack authenticity. It takes a lawyer to even interpret such laws to join the dots and come to a decision.
On the other hand, the organization’s information security team is technology and tool centric but lacks a legal perspective while taking action or even considering any action. With due respect to them, they are doing a terrific job at expanding technology and digital footprints beyond imagination. However, they do need guidance as to what data is to be seen in what manner and how to categorise the data; not every piece of data is to receive the same kind of protection as personal data. Additionally, the much-needed information to be sought from the likely importer of data is a result of the collaboration of the information security team and legal team.
Conclusion
To summarise, we need the collaboration of lawyers as well as information security teams or data protection teams in order to shape an effective TIA. The EU has clarity on which countries would be adequate and which would not. The changing business landscape and, hence, the need for cross-border processing of personal data is a reality no one can deny. Without lowering the guard and contravening GDPR, processes will keep evolving with time. TIA, too, is one of them.
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This article is written by Bogineni Naga Jyothi.It provides awareness about the prosecution of judges and public servants and discusses the need for Section 197 for the protection of judges and public servants under the Criminal Procedure Code, 1973, which was enacted in 1973.
It has been published by Rachit Garg.
Table of Contents
Introduction
Every Member of Parliament can get immunity from any prosecution against proceedings in any court against anything said or voted upon by any member of the Parliament or committee thereof. Article 105(2) of the Constitution of India, 1950, will authorise the members to get involved courageously in Parliamentary discussions, and the above-mentioned members require an extensive defence against all civil and criminal proceedings that support a consecution to their speech or vote in Parliament. Likewise, judges and public servants who act in good faith while discharging their official duties can get immunity under Section 197 of the Criminal Procedure Code, 1973 (“CrPC”), which ensures that they are not exposed to needless legal disturbance or harassment based on false accusations. Let us now see what exactly Section 197 talks about.
Section 197 : An overview
Section 197 of the CrPC defines that no court is capable of taking cases against public servants and judges in litigation against crimes committed except with prior sanction from the competent authority. This Section gives immunity to public servants who work for the people with good faith and not to those who pretend to be good public servants.
Under Section 197(1), When any person who is a judge, magistrate, or public servant not removable from his office saved with the sanction of the competent authority of the Government is accused of any offence alleged to have been committed by him while discharging his official duty, no Court shall take cognizance of such offence except with the previous sanction-
In case of a person who is employed at the time of commission of an offence that is correlated with the affairs of the central government under Section 197(1)(a).
in case of a person who is employed at the time of commission of an offence that is correlated with the affairs of the state government under Section 197(1)(b), where the offence is committed, look at the clause :
Under Section 197(2), no court shall take cognizance of any offence alleged to have been committed by any member of armed forces of the union while discharging his official duty, except with the previous sanction of the central government.
The State Government may direct that the provisions of Section 197(2) shall apply to the provisions of Section 197(2) shall apply to such category of the members of the Forces charged with the preservation of public order as may be mentioned therein, wherever they may be performing, and then the provisions of that sub-section shall apply to the expression “Central Government,” and the expression “State Government” shall be substituted under Section 197(3) by the official notification.
Under Section 197(3A), despite anything as inscribed in Section 197(3), no court shall take cognizance of any offence alleged to have been committed by any member of the Forces charged with the preservation of public order in a state while discharge of his official duty during the Proclamation issued under Article 356(1) of the Constitution of India was in force therein, except with the previous sanction granted by the Central Government.
Under Section 197(3B),however, anything against contained in this Code or any other law, it is hereby declared that any sanction granted by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of CrPC,1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period Proclamation issued under Article 356(1) of the Constitution of India was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.
Under Section 197(4), the State Government or the Central Government, may decide to specify the court before which the trial is to be held, the person by whom, in what manner, and the offences for which the prosecution of such a judge, magistrate, or public servant is to be conducted.
Powers of cognizance given to courts under CrPC
Cognizance means the court has a command to take notice of an offence from the police or by any private aggrieved party to initiate the proceedings against the accused. The court can exercise its power of cognizance after getting the information from the police department through an FIR or from the private aggrieved party through a private complaint. The judge can exercise the power of cognizance under CrPC. In the case of public servants, no court shall take cognizance of the alleged act done by the accused during the course of their official duty, except with the previous sanction of the concerned government.
Bar on jurisdiction on courts
Bar on jurisdiction means to prohibit entering into the jurisdiction of the court. These are certain situations that impose a bar on the jurisdiction of courts:
No civil court shall have jurisdiction over the matter relating to the tribunals.
According to Section 197(1), while discharging official duty in good faith, any public servant, judge, or magistrate is not removable from his office, and he is protected and accompanied by the sanction of the government, which is given by the President at the central level and the governor at the state level, and no court can take cognizance of such an offence except with the previous sanction. Further, under Section 197(2) of the CrPC, except with the previous sanction, any court shall not take cognizance of any offence allegedly evolved to be committed by any member of the Armed Forces of the Union, while discharged from his official duty.
What is meant by a sanction
Sanction means an official permission or an approval of the competent authority to the institution of prosecution for the public servant. The main objective of the sanction is to protect the public servants from malicious prosecution for the offences that happened during the course of their official duty.
Is sanction essential under Section 197 of CrPC when the sanction is granted under Section 19 of the Prevention of Corruption Act
Sanctions for the prosecution of the offences under the Criminal Procedure Code
Invoking Section 197 of the CrPC, the accused should be a government official, and the act should have been committed while discharging his official duty. There should be a reasonable nexus between the official duty and the alleged act.
Who is a Public Servant
Under Section 21 of the Indian Penal Code,1860 (“IPC”), a public servant means a person who is appointed through official notification or by the election process. The person could be a judge or magistrate, a member of the panchayat, an arbitrator and election commissioner, or a military officer.
Who is a competent authority to grant sanctions under CrPC
Here, the competent authority is the government. The President of India is the competent authority at the central level, and the Governor of the State is the competent authority at the state level to grant the sanctions. In cases where the accused is a judicial officer, prior permission is needed from the Chief Justice of the High Court before filing the FIR.
Illustration
The Governor is the competent authority to grant sanction for the prosecution of the Chief Minister of the state for the offences committed under the Prevention of Corruption Act, 1988.
Duty of the sanctioning authority
After the relevant documents and records and all the appropriate materials are sent by the prosecution to the sanctioning authority, the sanctioning authority has to study all the relevant materials given by the prosecution before granting the sanction by paying attention to it. Without any bias, the sanctioning authority should issue the sanction only on the basis of whatever documents are produced by the prosecution. The sanctioning authority can grant the sanction after his satisfaction. Such satisfaction is totally based on the materials produced by the prosecution.
What happens if the sanction is granted by an incompetent authority
If the sanction is granted by an incompetent authority, it becomes null and void.
Duty of the prosecution
The prosecution has to submit all the relevant documents and records, charge sheets, and FIR to the sanctioning authority for granting sanction after the verification of all the documents and records. The records and the documents are different from case to case, so the prosecution has to provide the relevant documents that are related to such a case.
Categories of person protected under Section 197 CrPC
According to Section 21 of the IPC, the list of persons given below are the public servants who are protected under Section 197 of the CrPC.
A political official,
An officer of the court,
Election commissioner,
Any arbitrator,
Military officer,
Officers appointed by the state or Central Government for remuneration,
Any judge or magistrate,
An assessor (he could be an evaluator, surveyor, examiner, reviewer, supervisory body, etc.),
Member of Panchayat,
Any person who is commissioned under the Armed Forces, etc.
Difference between a public servant and a government servant
A government servant is an employee of a specific government organisation or department. They are responsible for carrying out the policies and programmes of the government. A public servant is someone who serves the public; these include government employees, non-profit organisations, and charities that provide services to the public. To be a government servant, you need qualifications and experience. But, for the public servant, there is no need for qualification or professional experience.
When can a court take cognizance under Section 197 CrPC, if at all
Sanction is not required under Section 197 of the CrPC to prosecute the accused, a person who is a public servant, for various offences punishable under the IPC. The court can take cognizance without previous sanction to prosecute the accused for the offences punishable under the IPC.
Illustration
Sanctions are not required for the prosecution of a minister after his resignation.
Sanction for the prosecution of a public servant is not required for the offences under Sections 409, 420, 467, 468, and 471 of IPC.
Under the Prevention of Corruption Act, 1988, the Special Judge can take cognizance of a complaint by a private person.
Sanctions against the retired public servant are not required.
Judicial pronouncements
D T Virupakshappa v. C Subash (2015)
Facts of the case
The appellant in the present case is a police officer who is accused of an offence under the private complaint given by the respondent before the civil judge in Chikkanayakanahalli, Karnataka. The learned Magistrate took cognizance, registered the case under Sections 114, 120, 323, 324, 326, 341, and 506 read with Section 149 of the IPC, and issued summons to the appellant by complaint given by the complainant.
The appellant went to the Karnataka High Court under Section 482 of the CrPC, which was dismissed and challenged by the High Court. The facts and reasons for the impugned order are that, after reviewing the accusations made under the complaint, the sworn statement of the complainant and his witnesses go to show that the complainant was taken away from his garden at 10 a.m. on 06-06-2006 and further accusations made by the complainant were that he went to the police station on the next day evening and was detained until 10 p.m., and the accused ordered that he should not be let out until the complainant confesses his involvement in Sannamma’s murder. These accusations in the complaint are further confirmed in the affidavit to the statement of the complainant and his two witnesses.
At this stage, the High Court of Karnataka considered the sworn statements given by the complainant and the witness. The sworn statement given by the complainant and his two witnesses clearly outlines the offences alleged against the accused.
Issues
Whether the appellant can get immunity under Section 197 of the CrPC?
Whether the merits of the case can be discussed before the Supreme Court or not?
Contentions of the appellant
According to the accused, the statements made by the complainant are false and fatuous. The main argument of the accused is that the Magistrate could not have taken cognizance of the offence, registered the case, and issued proceedings against the appellant without sanction from the State Government under Section 197 of the CrPC. Because of that reason, the High Court dismissed the appeal. Aggrieved by it, the appellant went to the Supreme Court to seek justice.
Contentions of the respondent
According to the complainant, the statements made by them are true and accurate, and they want the accused to be penalised.
Judgement
Here, the accused assaulted the complainant to get some valuable information relating to the criminal case. The alleged behaviour of the accused has a relation to the discharging of the public duty.
The judgement is in the favour of the appellant, and the Honourable Supreme Court set aside the High Court’s impugned order and the proceedings instituted by the civil judge at Chikkanayakanahalli, Karnataka. Here the issue is about the sanction, so there is no discussion about the merits of the case, and the accused applied for the sanction before the state government, and that was produced before the Magistrate, and the Magistrate may proceed with the case in accordance with the law. Section 197 of the CrPC is to protect the sincere public servant who works for society and not for corrupt officials.
Inspector of Police & Anr. v. Battenapatla Venkata Ratnam & Anr.
Facts of the case
In this case, the District Registrar of Vijayawada lodged a complaint to the Police, CBCID Vijayawada, on July 7, 1999, against the respondents. The cause of action arose while the respondents were working as sub-registrars in the various offices of the state of Andhra Pradesh. The respondents conspired with the stamp vendors and the document writers for their own financial benefit and manipulated the registers, which are under their control, to obtain the registration of the documents with the old values of the respected properties. They have cheated the government and the public. On the complaint of the appellant, the complaint was filed under Section 173(2) of the CrPC against the respondents, and the report of the complaint was submitted before the Chief Metropolitan Magistrate, Vijayawada. The respondents objected that there was no sanction under Section 197 of the CrPC.
Issues
Whether the respondents can get immunity under Section 197 of the Criminal Procedure Code?
Contentions of the appellant
The misappropriation and fabrication of records do not fall under the discharging of official duty and the respondents are not eligible for immunity under Section 197. The fabrication of records leads to a loss of revenue for the government.
Contentions of the respondent
The respondent’s plea is to quash the petition filed by the appellant and they want to get immunity from the accusations made by the appellant.
Judgement
After the proceeding, the learned Magistrate gave an order on 03-07-2007 which is favourable to the appellant and the accused, and stated that the respondent has performed illegal acts beyond discharge of his official duty; there is no correlation between the acts committed and their official duties at this stage. Aggrieved by it, the respondent went to the Honourable High Court and filed a quash petition under Section 482 of the CrPC. Unfortunately, the High Court missed the important aspects of the given case and has given the judgement in favour of the respondents.
Aggrieved by it, the complainant approached the Supreme Court for justice. The appeal was allowed by the Supreme Court of India. The Honourable Supreme Court held that the cheating and creation of illegal records and misappropriation of the records cannot be discharged of their official duty as public servants. Their official duty is not to fabricate records or escape payment of taxes, and that leads to a loss to the Department of Revenue. Public servants who work honestly and in good faith to protect the welfare of the people are protected under this Section, the same cannot be preserved as a shield to protect corrupt public servants.
Sambhoo Nath Misra v. State of U.P. and Ors. (1997)
Facts of the case
The facts giving rise to the revision petition are that Shamboo Nath Mishra, here the applicant, has filed a complaint under Section 409, 420, 465, 477-A, 109 of the IPC against R.D. Thripati, the then chief medical officer, before the Chief Judicial Magistrate of Ballia. As per the accusations of the complaint, the complainant has been working as a class III employee, i.e., a vaccinator, since 1963, while Thripati has been working there from 1986 to 1988. On 08-11-1988, an application was made to the Chief Medical Officer for the disbursement of the salary arrears. A reply was received on the perusal of the records; it appears that the arrears were disbursed to the complainant, but those were not disbursed to the complainant. The records of the salary were under the control of the Thripati. He has forged the signature of the complainant along with the stamp of the amount received and collected for the arrears of the complainant’s salary, and the date of the disbursement is not mentioned in the record. As per the averments of the complaint, the accused has committed the offences of cheating, forgery, and misappropriating the amount due to the complainant. The 1st Additional Chief Judicial Magistrate granted the application despite the accused’s objections under Section 197 of the CrPC and dismissed the complainant’s complaint. Aggrieved by it, the complainant filed a revision petition before the hon’ble High Court of Allahabad.
Issues of the case
Whether fabrication of records and misappropriation with the records of the public done during the course of employment by the public servant would come under the discharge of the official duty of the public servant?
Contentions of the appellant’s counsel
The second respondent and the cashier fabricated and forged the salary records and forgery does not come under the discharging of the official duty of the public servant.
Contentions of the respondent’s counsel
The maintenance of the records is only the official duty of the respondent, and the preparation and payment are not the respondent’s duty. That is done only by the cashier, and the respondent has committed no offence.
Judgement
This does not fall under official duty. The performance of official duty under camouflage of public authority cannot be concealed to commit crime. If he is acquitted under Section 197 of the CrPC, the public duty may provide him with the possibility of committing a crime. The appeal was allowed by the Hon’ble Supreme Court, which dismissed the order given by the mMagistrate and directed the Magistrate to proceed with the case in accordance with the law and deal with the case on its merits.
Indra Devi v. State of Rajasthan and Another (2021)
Facts of the case
In this case, an FIR was filed against the public servants for alleged imperfections and irregularities at their command. This process was done without the prior sanction of the competent authority. A total of three members are alleged in this case. But, out of the three accused, two were given immunity under Section 197 of the CrPC. The remaining accused kept an application under Section 197 of the CrPC and that was dismissed by the trial court. The grounds for the dismissal are that the accused failed in his duties in describing the asymmetry to his superiors.
Aggrieved by the order, the respondent has filed the Crl. Misc. Petition before the Honourable High Court of Judicature at Jodhpur and that was allowed by the High Court. Aggrieved by the judgement of the High Court, the appeal is filed before the Supreme Court of India.
The examination of the Court in the given case is as follows:
Section 197 of the CrPC is to shield the public officers who are executing their duties with good faith, not the corrupted public servants.
Whether the acts of the accused come under the scope of discharge of official duty.
The other public servants are shielded under Section 197 of the CrPC, so why was his application dismissed by the trial court?
Issues of the case
Does the accused have a chance to get protected under Section 197 of the CrPC?
Do the acts done by the accused fall under the purview of the discharging of the official duty?
Contentions of the appellant
The fabrication of records does not come under the purview of the discharging of official duty and respondent no. 2 is in collusion with the executive officer and Megharam in the fabrication of records. Fabrication of records is not discharging official duty and the respondent does not get immunity under Section 197 of the CrPC.
Contentions of the respondent
The name of respondent no. 2 was not mentioned in the FIR and was mentioned as the concerned clerk and respondent no. 2 has done his duty by obeying official orders so he can get immunity under Section 197 of the CrPC.
Judgement
After observing the facts and situations of the case, the Honourable Supreme Court held that sanction is required before initiating the proceedings against the public servants.
Conclusion
The public servants and the judges work for the welfare of the public and society, and such people should work properly, which means they should be given similar security while discharging their official duty with good faith. Other than this clause, it amounts to the implementation of the prosecution. Under Section 197 of the Criminal Procedure Code, public servants are protected from the intentional false accusations and dishonour of a public servant, and they are treated as a special category to protect from hostile or frustrated prosecution; the same cannot be treated as a shield to protect corrupt officials.
Frequently Asked Questions (FAQs)
What is the time limit for the sanction under Section 197 of the CrPC?
The Karnataka High Court has said that the competent authorities shall decide the case within six months after receiving the request from the investigating agencies under Section 197 of the CrPC for the prosecution of public servants.
Do Public Sector Undertakings come under the purview of Section 197 of the CrPC?
The public sector undertakings do not come under the purview of Section 197 of the CrPC, according to the verdict inBSNL v. Pramod Samant (2019).
What is the difference between Section 197 of the CrPC and Section 19 of the Prevention of Corruption Act, 1988?
Section 197 of the CrPC defines the prosecution of judges and public servants, whereas Section 19 of the Prevention of Corruption Act, 1988 defines that the sanction is required only when the offence is punishable under Sections 7, 10, 11, 13, and 15 of the PC Act, 1988.
Is sanction mandatory for Public Servants?
It is not mandatory for the offences committed in cases of crime under the Indian Penal Code. But the sanction is mandatory to obtain for the prosecution of a public servant for the offences committed under the PC Act, 1988.
Is a sanction required for the prosecution of the minister after his resignation?
Sanction is required for the prosecution of a minister under Section 19 of the Prevention of Corruption Act, 1988, as long as he continues as a minister. But, after his resignation, no need for sanction was required, according to the judgement of M.P. Special Police Establishment v. State of M.P. & Other (2004).
Is sanction required against retired public servants?
No sanction is required for the prosecution of the retired public servants because their public official duties have expired. So, he can’t get the benefit under Section 197 of the CrPC.
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This article has been written by Ashutosh. This article exhaustively talks about various skills that a lawyer must learn to develop a successful legal career in India.
It has been published by Rachit Garg.
Table of Contents
Introduction
It is so difficult to find competent young lawyers who can draft contracts, I find it frustrating. We are always on the lookout for people who can draft good contracts. We offer salaries above 70k INR per month in remote roles and still cannot find competent contract drafting professionals. The ones we like usually have a salary bracket of over 1.5 lakhs per month and above!
If you are stuck in a low paying job, including in litigation, just become good at contract drafting, it will immediately put you in a different league as far as income is concerned.
Recently, my father referred his friend’s daughter to me to help if I can. This girl studied law and graduated from a local law college in Kolkata. She has spent 3 years working under a senior and still earns about 10k INR per month as a stipend.
She is allowed by her senior to take her own work if she can get any, and occasionally she gets some small matter from which she makes 5-10k INR in one shot.
However, she recently got married and does not find it worth the earning to spend 6 hours per day running around in court, followed by another 6 hours in the chamber drafting and researching for the senior.
The request was simple: can I help her get a law firm or company job where she can get paid above 50k INR per month?
I really felt this girl had passion and seemed to be intelligent and hard-working.
The first question I asked her was: “Can you draft commercial contracts?”
Great, but what about commercial contracts? Can you draft an investment agreement, or a software development agreement, a franchisee agreement or, say, an IP licensing agreement?
Silence.
No worries, tell me whatever agreement you drafted recently. Give me examples of some important clauses.
The conversation led to the realisation for me that whatever contracts she even drafted, she was basically editing templates she found. She did not have a deeper understanding of any of the clauses or their business impact.
Soon she admitted – “my senior does not do much contract related work, so I did not get to learn about this”.
Now, the problem is that at most law firms and in-house counsel jobs, contract drafting is a very basic requirement.
If you can do contract drafting and compliance, you can easily get a job. If you have experience with litigation, it will be considered an added advantage in that scenario. If you can’t do contract drafting, you are already at a huge disadvantage. Only litigation or compliance skills may not see you through for the vast majority of jobs. You will not even be considered for the interview.
The good news is that you can learn commercial contract drafting in a few months if you put in consistent effort.
I explained to her that she could turn her situation around by learning contract drafting. In Kolkata itself, I know three software services companies that are looking for lawyers who can draft their contracts for a reasonable retainership fee right now! But can she help any of them?
“Just give me a chance, I will prove myself” is unfortunately not something that inspires faith in a business, even if they feel your pain. They have a responsibility not to jeopardise the interests of their own stakeholders!
Life is giving you chances right now, seize them. Don’t wait for an employer to bet on you despite your lack of a proven track record.
I told her that she needed to learn three things to get the kind of work she wanted:
You need to be able to draft commercial contracts from scratch (and that does not mean changing names, address or some details in a template)
You need to have drafted some contracts before – which means you need to have a track record. If you have to draft your first 10 commercial contracts for free, do it, but get great testimonials and referrals. If nothing else, you can now tell future employers about 10 real contracts you drafted, the situations and challenges you faced along the way, and what happened in the end. This is what shows a potential employer or a prospective client that they can trust you.
Please build your outreach. Make sure people know about your skills and track record. One on one networking is fine, and it is also fine to use social media. Just share your stories, your frustrations, your experiences, and the fun moments about your work on social media, but do it responsibly. It will be a game changer.
Once you learn how to draft contracts, the sky’s the limit.
You can then easily learn in another 6 months how to draft cross-border contracts, US contracts, and Dubai contracts and earn even 10x more!
You could learn how to get international clients remotely!
But let’s not build castles in the air.
It all starts with building that one skill: contract drafting.
I am trying to help my father’s friend’s daughter learn contract drafting. I have no doubts that she will absolutely crush it in the professional world once her contract drafting skills begin to mature, given the hustle and drive she has.
If you are a lawyer, and you are not awesome at it already, you should learn contract drafting. It will help you in ways you cannot imagine.
You will be able to earn more by drafting contracts, finding contract drafting clients is much easier than finding other kind of legal work.
New clients will test you by giving simple contract drafting work because it is low risk to try you out compared to giving you litigation work.
Even if you want to become a litigation lawyer, contract drafting will help you because when contracts you draft land up in litigation, you will be called upon to help.
I hope I gave you enough reasons to learn contract drafting.
Respond and let me know how you have been learning contract drafting and what challenges you faced along the way.
Drafting contracts is generally considered the most useful skill that every lawyer must know, but there are several other skills that are also very essential for a lawyer. Learning and mastering these skills can take you to a great height and can increase your potential ten times more than what you are.
Don’t worry if you don’t know which skills you need to master if you are in the legal field. I have listed below the top ten skills every lawyer must learn if he wants to be successful in the legal field.
Must have skills to get a good legal job in India
To become a successful lawyer or have a good legal career, every individual has to master some of the most essential skills that are highly looked for in this profession. Here is the list of some of the most crucial and important skills that every lawyer or law student must possess.
Drafting skills
Drafting is the most essential skill that every lawyer must possess, irrespective of their area of specialisation. It is a skill which is used in all fields of law, and no legal work can move forward without drafts such as draft of bail petitions, written statements etc. If a lawyer or law student wants to become successful in his/her life, the first thing they should learn is to draft all kinds of agreements and contracts. In India, most of the lawyers don’t have expertise in drafting contracts, and because of this, they lack behind and don’t get much work from the clients. This is because they don’t get proper training and exposure.
Drafting skills alone can take a lawyer to great heights. Even if you are a law student and have drafting skills, you can easily earn a good amount of money, which will be more than the salary of most lawyers. But learning and developing expertise in drafting takes patience, hard work and a good source (either through a senior lawyer or by taking any drafting course). If you are someone who is willing to become an expert in contract drafting, and you don’t know how or when to start, then you can look up for a drafting course that covers all the aspects of drafting.
How to improve or develop drafting skills
Everyone knows that drafting is one of the important skills that a lawyer needs for his/her career, but it is even more important to understand how one can develop this skill. We have listed below a few of the most important tips that are required to master the art of contract drafting:
Understand the Purpose
Before starting the drafting of any document, the lawyer must be clear on the purpose for which the document has to be prepared. This will help in preparing the clauses that are in the interest of your client. Thus, before beginning the drafting process, collect all the information, such as parties involved, desirable goals of the client, facts of the case, legal issues involving the same, etc.
For example: Drafting a partnership agreement have a purpose to settle a conclusive terms and conditions of partnership. Similarly, drafting a will deed also have a purpose of making an enforceable will for the client.
Take help from samples
If one is not well versed in how to structure the content of the draft, it is always advisable to seek help from already present samples. These samples will not only help you form the structure for the present draft, but will also help in creating drafts in the future. You can easily find samples of multiple drafts such as contracts, agreements, civil and criminal drafts etc.
Note: it is always the drafter’s wit that does justice with the draft, so, it is not advisable for the young drafter to completely rely on the sample drafts. Every draft is unique owing to unique circumstances.
Create an outline
An outline is basically the skeleton of your draft, which you will use to prepare the main body. An outline helps the writer/drafter organise his thoughts and arrange the important points in a systematic manner.
For example: suppose you are drafting a bail application then you should first prepare the introduction part in which you will be mentioning the name of the court, appellant etc, then you will move forward with the facts of the case, grounds for granting bail and so on.
Use correct punctuation and professional language
It is very important to use correct and proper punctuation while making a draft because wrong punctuation can completely change the meaning of the sentence, and this may have some adverse effect on your client’s interest. At the same time, one must try to use professional terms; this does not necessarily mean that you have to use complex words or jargon. It simply means that the language used in the draft must reflect your legal knowledge on the topic, and the draft must have a neutral tone without any biassed sounding clauses.
For example- Do not use any biassed sounding clauses such as racial bias, gender bias etc. like “the respondent is a very strong man, and he won’t run away”, this will give a presumption that every man is strong, and they don’t run.
Take feedback from seniors
Good legal drafting has a lot to do with experience. You might be following all the steps, tips and what not, but your draft might lack in one aspect or another. This is nothing to worry about, because drafting only keeps getting better with experience and practice. Meanwhile, if you have just started drafting, try to get your draft reviewed by your peers and seniors and get constructive feedback from them. This one tip will help you a lot with every aspect of your legal journey.
Re-read, edit and repeat
Once you are done with the final draft, you must proofread it with fresh eyes, as it will help you find out the tiny mistakes that you might have left out. Make the changes in the document and repeat this process once more to make sure that your draft is perfect!
Mistakes to avoid while drafting
A tiny mistake in a legal document can have major repercussions. Hence, it is very important to know about the common drafting mistakes so that you can avoid the same:
Use of complicated language
Usually, lawyers believe that the use of complicated words and language in the draft will make their document very impressive. But this is not the case, fancy words only make the language of the document complex, so it is always advised to use simple but clear language while making the draft. Collecting all the important data before making the draft also makes the task easier.
Not mentioning the correct breach and termination clause
Termination or breach clauses are a very critical aspect of any contract because they lay down certain important details which eventually prevents any kind of breach of the contract or a complete termination of the same. Before making a draft, drafters must talk to their clients and note down under what circumstances they would like to get the contract terminated. The drafter must include such a breach or termination clause along with the clause of due notice.
Not mentioning dispute resolution clauses
In every contract, parties get into disputes over any small or big issue, and It is the work of the drafter to talk to his client and the issues that his client is facing, and contemplate such issues and mention them along with a resolution procedure because termination of the contract for every little dispute is not possible. Mediation or arbitration is usually the most commonly used dispute resolution clause in contracts.
To know more about dispute resolution clauses, clink here.
Not checking for errors
One of the common mistakes that drafters commit is not checking and rechecking the draft after completing it, as it may seem like a boring task. But many times, tiny errors like typos, grammatical mistakes, etc. get skipped, leading to an ambiguous clause or contradiction in the draft. This can be avoided only by proofreading, editing and re-reading.
Not adding Schedules in the draft
A schedule is a list of important documents that goes at the end of a contract and contains all essential parts of the same; skipping out schedules in a contract may make the contract look defective. Thus, drafters must try to incorporate Schedule at the end of a draft.
The basic purpose of the schedule in any draft is to provide relevant and essential information such as list of all the documents used, references to all kinds of information, and other important data.
Reading skills
To become a successful lawyer and to develop a career in law, a law student or lawyer should possess strong foundations of skills and knowledge. And one of the most important skills that every individual who is in the law field should possess, is the reading skills. Because reading is something which we are often required to do whether it be reading judgements, arguments etc. here are some tips through which you can increase and polish your reading skills.
Tips to improve reading skills
Follow these tips to enhance your reading skills.
Read consistently- If you want to develop reading skills, then the first and foremost thing you should do is to remain consistent and read regularly. Reading consistently will help you in increasing the depth of your knowledge, and you will also remain updated on the legal development happening in the country.
Use reading tools- There are various kinds of tools and resources available online that can help you in reading more effectively and efficiently, tools like flashcards, summarization tools are a game changer when it comes to reading. With the helps of these tools, you can read faster, and you will also be able to acquire more knowledge in a short span.
Read beyond the law- Most of the lawyers and law students make a common mistake, and that is, they only read law books and stuff related to law. But to develop exceptional reading skills it is very important to read beyond law, such as reading politics, history, economics etc. because by doing so you will be able to have knowledge of other subjects too, and you will be able to understand legal issues with better understanding.
Negotiation skills
Negotiation is also an important skill that every lawyer must learn. Lawyers use their negotiation skills to settle the disputes of their clients peacefully without making any arguments. Negotiation is an art, and lawyers use it every day to settle the disputes of their clients. Other than drafting document skills and arguing for their clients, lawyers also need to have negotiation skills in their skill box.
While carrying out a negotiation, lawyers perform three steps, namely-
Preparation– It is the first step of negotiation in which both the parties prepare themselves and determine what they want from this negotiation.
Information exchange– In this step, both the parties exchange their initial places and share their underlying interest and concerns, and convey what their aim is.
Explicit bargaining- This the main step of negotiation in which both the parties give counteroffers to one another and manage their concessions. During this step, it is very necessary for both the parties to remain confident and keep their emotions in check.
What is the importance of negotiation skills for lawyers
There are multiple scenarios in which negotiations have proved to be a game changer in settling disputes between parties. Negotiations are used as a tool to settle the disputes arising in a personal relationship or business peacefully and with a motive to protect the relationship between both parties and to successfully close a deal with mutual cooperation. Other than that, there are various other things that prove the importance of negotiation, such as:
Good negotiation skills can help you have a successful career. Because there is a lot of growth and scope in this field. If you develop good negotiation skills, you will be able to settle disputes and protect the relationship with your client, which in turn will provide you with long-term clients. Even though there is a dispute or difference in the opinion of parties. Negotiation skills help in settling those differences through a mutual decision by providing a good solution that focuses more on protecting the relationships and creating goodwill.
If you are a lawyer, then you must learn negotiation skills and add them to your skill set, because this will provide you with a guarantee of increase in salary and profit. Also, it increases your reputation, and because of this, you will be treated as the first preference when it comes to negotiations.
Learning negotiation skills will help you overpower and dominate the other party’s lawyer in all the disputes. Unlike litigation and any other method, negotiation provides the best solutions to all the conflicts, and the procedure of negotiation is also not hectic and difficult. Negotiation provides for long-lasting solutions because both parties involved in a dispute make a concession only when they mutually agree on a satisfactory solution.
Through negotiation skills, you can not only solve the disputes of your client but also handle all the workplace conflicts, which in turn will increase your respect in front of all your colleagues. Negotiation brings both parties to a mutual decision, which decreases the chance of having future conflicts between both parties.
Good negotiation skills lead to successful negotiation, and if any business is able to successfully negotiate with the other party, then they will be able to easily accomplish the goals and targets of their business. Thus, it will also result in the success of their business and will also help the business retain its clients and customers for a longer period of time.
How to improve negotiation skills
It is very essential for every lawyer and law student to improve and work on their negotiation skills. If you are not sure how to do it, then read below to learn how you can improve their negotiation skills.
Attend workshops and conferences related to negotiation- One of the best ways to improve your negotiation skills is by attending negotiation workshops and conferences. These workshops and conferences will provide you with knowledge about various practical skills involved in the negotiation process. You will also get to meet a lot of experienced negotiators during these conferences and workshops.
Get mentorship from experienced or senior negotiators- Experienced negotiators who have been practising for several years hold immense knowledge. Thus, if you get to work with a senior negotiator, you will get to learn from their guidance. Senior lawyers will also help you polish your negotiation skills.
Do regular practise– If you are a lawyer, then it is very necessary that you keep regularly practising all your skills. Regularly practising your negotiation skills will build up your confidence, and you will be able to deal with the issues of your client without hindering their relationship with the other party.
Become a member of a negotiation organisation or negotiation club– If you become a member of negotiation clubs and organisations, then you will get a chance to take part in various negotiation activities conducted by that organisation. You will also get to meet new and experienced people who are highly skilled in negotiation and know all about the negotiation process.
Doing internships at law firms that specialise in negotiations- If you are a law student and want to develop excellent negotiation skills, then one of the next ways through which you can improve your negotiation skills is by getting an internship opportunity at a law firm that deals with the negotiation process. This will provide a lot of practical experience and knowledge related to negotiation.
Conflict resolution skills
Conflict resolution skills are one of those skills that law schools do not teach you, and you only get a hang of it when you enter the practical legal world. As a lawyer, you will need these skills either to solve the conflicts that occur between you and your client or, mainly, to solve the conflicts that your clients face. In either type of conflict, you will have to make sure that you come to a cordial solution by applying your conflict resolution skills and interests.
While different lawyers have different approaches to managing a conflict, all the approaches are based on the same basic conflict management skills. Thus, when you are finding solutions to any conflict, make sure that you keep the following skills or tips in mind and apply the same:
Listening
When you go for conflict resolution, make sure that the first thing you do is actively listen to the concerns of your counterpart. In doing so, you will have to try to not defend yourself against each point that is put forward by the other party, but rather try to ask them questions to understand the core issues. Only after having understood the perspective of the opposite party should you start making your points. This will help you have an overview of problems from both sides.
Analytical skills
If you develop your analytical skills, you will be able to evaluate complex information and identify the significant issues in a conflict, through which you can compare all the weaknesses and strengths of arguments of both parties. If you develop analytical skills, then you will be able to terminate the legal principles and facts very easily.
Communication
Communication is the key to reaching a resolution in a conflict. As an attorney for your client, you should make sure that you put the concerns of your client before the other party so that there is no room for misunderstanding and the resolution is carried out smoothly.
Grip on legal knowledge
In order to carry successful conflict resolutions, you should have a strong grip on all kinds of legal knowledge to resolve the disputes and issues of your clients. You can improve your legal knowledge by understanding and learning various statutes, relevant laws and regulations. Having a strong grip on the principles of tort law, contract law, and several other law subjects will give you the ability to apply legal reasoning in various scenarios. This will also help you to make efficient and fair resolutions of disagreements following the relevant framework.
Come to joint solution
Lawyers should follow a different approach in conflict resolution because it is not the same as litigation, where one party has to win against the other and disprove the point of the other party. In conflict resolution, lawyers must try to come up with a solution that will satisfy the concerns of all parties, rather than a solution that is one-sided.
Address Multiple Issues
Parties in conflict resolution must put forward all their issues rather than arguing only on a single issue, as it will help in finding other opportunities for trade-offs and will also prevent stagnation of arguments.
Communication Skills
Good communication skills are vital to a successful lawyer. No matter whether you want to become a criminal lawyer, corporate lawyer, tax lawyer, environmental lawyer or any other kind of lawyer, good communication skills are going to take you to great heights. Law schools mostly focus on the theory part and only teach the basic communication skills by means of moot court competitions or other such competitions.
However, these skills are not enough in practical situations. Also, as a lawyer, when you communicate with anybody, you must reflect your knowledge of the law and not only stick with irrelevant facts. As a lawyer, a person needs to communicate with clients, associates, magistrates, partners, etc. Thus, having a good communication skill as an attorney is very crucial because it lets you keep your point with confidence and influence other people in your favour.
Why are communication skills important for a lawyer
communication skills are an essential skill that is required in every field. If you are not good at communicating, then you won’t be able to handle your clients or customers. Because if you are not good at communicating, then you won’t be able to convey your motive to your clients, which will lead to an improper connection between you and your client, and because if this happens, your client will have difficulty trusting you or building a relationship with you.
On the other hand, if you are a good communicator, and you are able to assure your client that you are capable of settling their disputes, then they will easily build their trust in you and will consider you a skilled professional who can handle their problems. Communication is an art, and lawyers are artists; a lawyer’s profession is all about effective communication with his clients and other individuals.
If a lawyer has good communication skills and is able to effectively communicate with his clients, then he can easily build great trust in himself. Having communication skills is very essential because if you are a good communicator, you will be able to build a strong relationship with your client, and in turn, you will provide satisfaction to your clients through your words and services.
How can lawyers improve communication skills
If you are a lawyer or even a law student, you already know the importance of communication in your profession. For all lawyers and attorneys, communication skills help in articulating their ideas confidently and clearly while representing their clients, resolving disputes and also settling negotiations. In all these things, communication plays a vital role.
Since communication is such a crucial thing for all lawyers, here are some tips on how to improve your communication skills as a lawyer.
Be a good listener first- To be good at communication, the first thing you need to do is have listening capacity, because If you listen carefully, you will be able to tell if that person is speaking lies or truth through facial expressions, tone, and language. And if you listen carefully, then you will be able to question properly, because asking the appropriate questions can make a huge difference in the results. Thus, in short, asking correct questions and listening carefully can help you effectively represent your client.
Be attentive and focused- As a lawyer you need to remain attentive during the whole conversation happening between you and the other party or party’s representative to focus on their mistakes and faults. And giving attention can also help in conducting your research and documentation work. Thus, if you remain attentive, then you will be able to properly interpret, analyse and defend the case of your client by preparing the best arguments.
Take communication training– There are few skills that are not taught in law schools, and one such skill is communication. But for a law student, communication is a very crucial thing. Thus, every law student must spend money on good communication training if they are not good at it. As a law student, communication skills can help you a lot in your law school when you participate in moot court competitions or several other competitions.
Understand the language of your client- Listen to what your client is trying to convey and focus on the tone, voice and body language. Be vocal with your client and make them feel comfortable so that they are able to communicate everything with you. Explain to them about all the things that you would do to resolve their dispute, and if you think your client is in confusion, explain things again and again to your client.
Talk confidently- Clients hire lawyers because of their reputation, and they remain confident going with someone who has a good reputation. Thus, as a lawyer, talking confidently is one of the most crucial things that can help in retaining their client’s trust in the whole process, because if you are not able to build a relationship of trust with your clients, you will not be able to make them feel confident, and one of the ways through which you can do that is by speaking confidently with your client.
Openness– Be open with your client and don’t hesitate to ask questions because you don’t know whether they are speaking truth or not. So be open with your client and make him feel that he can speak to you openly about everything. Being open also means coming up with creative ideas to resolve the issues of your clients. Creatively considering different strategies, options, ideas and other courses of action.
Networking
Networking is one of the most powerful skills of a lawyer. In comparison to other professions, networking is much more important to lawyers, and legal networking is also different from ordinary networking as it does not merely include simple conversation, but it also includes making a bond with the other person. If you’ll talk to any successful lawyer about how he/she built practice, their reply will definitely include the point about networking and relationships. The success of a good law practice depends on the relationships that one builds during their career.
Reasons why networking is beneficial for lawyers:
By now, we know that networking is very important for lawyers. The potential benefits of networking for a lawyer are given below:
Getting clients
If a lawyer has networking skills, and he knows how to build strong relationships with other people, then he will be able to easily pull up multiple clients through referrals of other individuals with whom he has created a bond.
Scope of winning increases
Networking is not only limited to knowing people; it also extends to building long-lasting relationships. Knowing the right people in the right field can sometimes help a lawyer win or lose a case. For example- if a lawyer has just started practising and does not have much knowledge, winning a case for such a lawyer might be difficult. Having a connection with an experienced lawyer in the concerned field will help a lot in articulating the arguments.
Sharing of Knowledge
Law is all about knowledge, and with the evolving times, laws and the approach towards them also keep changing. Thus, interacting with peers from various fields helps in the exchange of crucial knowledge.
References
One of the greatest advantages of having connections is that you can request that they refer you to their company or law firm for internships or job interviews. This helps a lot in at least getting your CV/resume reviewed by the institution and getting an opportunity to work for your dream firm.
Tips for strong networking
Here we have mentioned some Tips and tricks that will help you in achieving great networking relationships, read below to know all the useful tips for string networking.
Efficient use of social media- In the era of social media platforms, the approach of lawyers towards networking has also changed. Networking has become much easier due to the presence of platforms like LinkedIn. One can easily connect with their peers in their desired field of interest and even interact with them on the same platform.
Follow Ups- Follow up swiftly after your networking events. Contact all the legal professionals that you met during those events, send emails or texts to show your gratitude and keep your conversation going.
Active participation- Participating actively and being in regular contacts showcase your interest and respect towards those people. Keep asking your questions and doubts with your networking connections and actively listen to the things they say, this will help you in building more authentic relationships in the future.
Building a rapport– Find individuals who have common interests and connect with them and build a friendly relation while networking. Being friendly and attentive with your connections will help you a lot in your long run.
Commercial awareness
This is also one of the most important skills that lawyers should have. In simple words, commercial awareness means having knowledge of all the developments happening in national, local and world business, specifically those things that impact a law firm and all its clients.
The legal field is all about understanding the businesses of clients and providing viable solutions to them. Thus, it is very important to have in-depth knowledge of all the current events to fully grasp the context of the work that you are working on as a lawyer.
A client goes to a firm and expects that the associates and lawyers of that firm will understand their business and will protect them from any kind of political, social and economic issues. Clients expect their lawyers to be more than mere legal advisors. So as a lawyer, you need to understand the nuances of all the social, political and economic landscapes, how all this is affecting your client and his business, and what steps you can take to protect your client’s business.
How to improve commercial awareness
These are the steps you need to follow to improve your commercial awareness.
Getting Practical experience- The best way to develop or improve commercial awareness is by getting work experience, because through this way, one can understand the minute details of a business and even give advice. It is difficult for law students to get jobs or work in any company during their law school, but they can take up internships in various law firms, companies, or startup firms to get a rough understanding of the business world. And as a lawyer, one can apply to their targeted firms or companies in their area of interest to get experience as well as get paid for it.
Connecting with Industry Experts– Before trying to get into the practical work, you should try to get into contact with the experienced or senior members of the industry who will help you get a better understanding of the practical aspects. This will also help you determine whether or not you have an interest in the particular field. The best way to connect with industry experts in this technological era is to approach them on LinkedIn, or you can even secure connections with your peers during the internship. Having conversation with the experts will help you a long way in your career, like bagging interviews, securing internships, etc.
Following the financial/ commercial news– As the name suggests, commercial awareness means being aware of the latest news in the business world. One of the best ways to do so is by following the business section of the renowned newspapers and trying to focus on the legal aspects of such news.
Join commercial organisations and get exposure from places like bars, shops, law firms or call centres.
Listen to podcasts which talk about business strategies and businesses.
Watch television programs which talk about business related stuff like shark tank etc.
Join any committee and become a member of society or university club
Attend seminars and other conferences with business professionals and get enough exposure from there.
Technological skills
Today, when everything has become digital, having technological skills is very important. Whether you are a teacher, doctor or advocate, you need to have some technological skills required in your field. Similarly, advocates and lawyers need certain technological skills to make their work faster and easier. In current times, a lawyer who does not have technology skills is lagging behind other lawyers, no matter how experienced or old he is. With the development of artificial intelligence and some other software, learning technological skills has become very crucial.
Lawyers not only need technological skills for their work, but also for resolving the issues of their clients. Several people nowadays are falling for online scams and are becoming victims of cyber crimes. Thus, to deal with cybercrime, a lawyer must have sufficient knowledge about technology law and possess certain crucial technology skills.
Gaining expertise in technology law and skills can take you places; you can land a high paying job in law firms and companies. You can also start your own practice and work for your clients.
Why a lawyer needs to learn technological skills
Widespread use of technology in legal profession post COVID-19 era
The recent pandemic, which struck the whole world, taught us the need for technology skills. All the lawyers and judges have used technology for carrying out their work, from e-filings to virtual hearings. Everything was done with the help of technology. Thus, someone who was not skilled in using technology and didn’t have sufficient technology skills suffered a lot during the pandemic.
We cannot predict anything, and the recent COVID-19 outbreak has proved it, because in the recent pandemic we witnessed online hearing of cases that happened on virtual platforms such as Zoom and Google. And in such situations, technology has proved to be extremely useful.
Rise in cybercrimes
The wide use of this technology has brought with it several mischiefs and offences, and to deal with these mischiefs and offences, we require technology law such as Information Technology Act, 2000 (IT Act)
Since the number of cyber crimes and online frauds has also increased with the increase in the use of technology, it is important to know how todeal with all these crimes and frauds, and that’s where technology law comes into picture.
Softwares for technology lawyers
There are multiple software that have come into the market to make the work of a lawyer easier and faster, some of those softwares are listed below:
Document management software– Lawyers use this software for the collection of data. This software helps them to store, organise, share and access all the documents with ease. Through this software, lawyers can easily store all their confidential files on cloud storage, and after that, they can access them from their smartphones and tablets anytime.
Accounting and finance software– This software is used by lawyers to make their work simpler and easier by managing and tracking all their profits and losses. Through this software, lawyers can also monitor their financial performance.
Billing software- This software is used to track the time a lawyer he/she spends on a case.
Customer relationship management software- This software is mostly used by law firms. This software is very important for businesses as it assists in keeping company data in one place. With the help of this software, law firms can easily send bulk emails to all their clients; they can easily access the data of their customers, and they can also send multiple invitations and newsletters to their clients and customers.
When does a lawyer needs technology skills
Technology plays a vital role in a lawyer’s life and there are multiple reasons why a lawyer should learn all the technological skills, because the need of technological skills for a lawyer can arise at any moment, such as:
Registering a cyber complaint– Lawyers in the field of technology law must also know how to easily register a cyber complaint, because it is the first step through which you can help your client. If your client has become a victim of any cyber crime, then you will have to register a cyber complaint for his protection. And so it is very necessary to learn how to register a cyber complaint; if not, then you will end up losing your client.
Drafting a cyber complaint- If you are a technology lawyer, then you must know how to draft a cyber complaint. In the field of technology law, most of the cases that come up are related to cyber crimes and offences. Thus, to earn more money and attract more clients, you must develop the skill of drafting cyber complaints.
Researching skills- Nowadays, most lawyers use online resources and databases such as Manupatra and SCC for their research purposes, and this makes the work of lawyers very easy. With the help of these softwares, you can easily look for references and get relevant case laws for your research work.
Better resource management- Earlier, junior lawyers were used to perform odd tasks like gathering, managing, storing and processing titles. With the help of technology and technological skills, all such work can be easily done without the help of any other person. Lawyers can easily store their data at one place and easily manage all their documents.
How to learn technological skills
Learning technology skills is not a difficult task; anyone can learn technology skills just by using their phone or laptop. We have mentioned a few things that you can do to develop or improve your technology skills.
If you are a law student, then join any law firm that specialises in the field of technology law. Through this, you will be able to learn all the practical technology skills that associates and lawyers use in their daily lives.
Get access to Manupatra, SCC or any other legal resource and perform all your research activities on those resources.
Research online and get a good technology law course that covers several important aspects of technology law.
If you are someone who is interested in making a career in technology law, then go through this article and explore the opportunities available for technology lawyers.
Organisation skills
Lawyers perform multiple tasks in their working hours, whether it be drafting documents, examining witnesses, going to court hearings, typing, dealing with clients, managing case files, or networking with other advocates all in a single day. Thus, it is very necessary for a lawyer to divide his time mindfully and keep everything in an organised manner so that he doesn’t end up losing anything. Organising all these things is not an easy task, and not everyone is able to do it. But people who have organisation skills and people who know how to use their time can handle it very easily.
For lawyers, time, and organisation are everything because lawyers are paid for their time, and time is the most valuable thing for lawyers. Thus, developing organisational skills is crucial for a lawyer to become successful in his/her future.
Why are organisational skills important for lawyers
The profession of lawyer is filled with many challenging tasks, and one of them is handling multiple tasks at once. And to manage multiple tasks in a limited time is very essential for a lawyer to remain organised and keep everything ready. If a lawyer is not organised and lacks organisational skills, he/she will not be able to build a successful career in the field of law.
He will not be able to handle all the tasks that he is required to perform and will end up losing his clients. Thus, developing organisational skills is very important for a lawyer. Following are some specific reasons to gain organisational skill-
Long-term career goals- Organisational skills can help a lot in achieving your long term career goals, because if you are skilled in organising your work then you will be able to manage your work and time which will help you in developing your career overall.
Creating positive reputation- Being organised and keeping your workplace organised will help you in creating a good reputation among all the members and juniors around you. Because if you keep your workplace organised and do all your tasks in an organised manner, then you will save a lot of time, and you will not bother anyone while you are doing your work. Thus, everyone will see you as a capable lawyer who handles all his work in an organised and neatly.
What are the types of organisational skills
There are two types of organisational skills,
Internal organisational skills; and
external organisational skills.
Internal organisational skills are related to the mind, and they help you analyse all the complex issues so that you can create and come up with solutions. Some of the main examples of internal organisational skills are strategic thinking, creative thinking, etc.
Whereas external organisational skills are those skills that are related to your physical capacity and include physical work. Like keeping your desk clean and tidy so that you can easily complete your tasks and locate your important documents. It’s basically how you set timelines for your goals, how you break down your goals into manageable tasks, how you coordinate and how you communicate with others.
Having both of these organisational skills will make you a team member and will allow you to become successful in your legal field.
How to develop/improve organisational skills
It is very important for every individual to develop organisational skills to do great in their workplace. Being a lawyer or a law student, you can easily develop these skills through regular practice, self-discipline, and determination. Therefore, to make it easier for you guys, we have enlisted four ways through which you can easily improve your organisational skills.
Maintaining a tidy workplace- It is one of the easiest ways to enhance your organisational skills, just by keeping your desk clean and your files in one place. This will help you locate your files in no time, saving you the time you will waste searching for your files. You can achieve exceptional organisational skills just by arranging all your items and prioritising them based on their value and importance. However, by arranging all your items and documents, you will also know what documents are important and what documents are of no use. Once you start doing these things, you will observe an increase in your productivity.
Make your to-do List– Lawyers need to perform various tasks in their daily lives. And to make it easier to handle all the tasks, making a to-do list is very essential. Note down all the tasks you need to perform in a day so that you can keep track of all the tasks that you have done and the tasks that are pending. Note those tasks first that are more important and need quick action.
Coordinate with your co-workers– The skills of coordinating and communicating with your co-workers are very necessary in a lawyer’s life, especially if you are practising in a law firm or a senior lawyer’s office. Through coordination, you can build up your networking skills, which will help you in the long run.
Time management- Time is the most valuable asset that lawyers have; they get paid for the time they give to their clients. Thus, one of the most important organisational skills that every lawyer must have is time management. Planning, setting your goals and making decisions accordingly are the most important parts of time management.
Case management skills
Case management is a very essential skill that every lawyer must have. This is the skill that will help you successfully win your case. Lawyers who are experienced or who have been practising for more than a decade handle an average of 10 to 20 cases, and this is only possible through correct case management.
There are certain things that you should keep in mind to improve your case management skills. We have mentioned some tips below that will help you improve your case management skills.
How to improve case management skills
Here we have mentioned some of the tips through which you can improve your case management skills. Follow these tips to have effective case management skills.
Organise all your case files– As soon as you begin with a new case, the first thing you should do is organise and keep all the files in one place. One of the most important benefits of arranging your case files is that you will be able to locate your files easily, and you will know if any file is missing or has been lost. Through this, you will be able to save a lot of time for yourself, and you will also be able to prevent any future mishaps.
Prioritise your task by your case– Lawyers have a long list of tasks they need to perform in a single day, and when you have so much work, it is important to give priority to those tasks that need quick action or those that are more important and urgent. For example, if you have two tasks from two different cases, but one case is going for a trial and in another case you just have to submit a document, in such a case you will prioritise your first case that is going for a trial.
Schedule your tasks– To make sure that you don’t miss any of your tasks, delegate your tasks to other people who can help you out. Track the deadlines of your tasks and schedule them accordingly. Schedule those tasks at first that are very important or whose deadlines have come really close.
Why does lawyers need case management skills
Every other lawyer and law firm nowadays is using case management software to keep themselves ahead of others and save time and energy. There are various reasons why you should use these case management skills and software for case management; some of those reasons are listed below.
Increase in effectiveness- If you are a lawyer who works in a law firm, then these case management skills can help you a lot in increasing the effectiveness of your firm because all the associates of the firm will remain updated with all the information of a case, and with the help of case management software, they can easily access all the information from their own devices.
Helps in completing deadlines- If you have case management skills, then you will never miss any of your deadlines, because if you are managing your case in a correct manner, then you will know about all the deadlines and important dates of your case.
Saves time- One of the greatest advantages of case management skills is that they help you save a lot of extra time, which lawyers often waste while looking for their case files, which are lost in their office. But if you have case management skills, and you arrange files in the correct sequence and according to the deadline, then you will be able to save a lot of time for yourself, which you can spend on any other important task.
Advantages of case management
There are multiple benefits of case management skills, and some of the most prominent skills of case management are listed below.
Case management helps you in increasing your productivity as well as profits. Lawyers who have a plethora of cases and who need to perform multiple tasks daily use the case management software to make their work easier and faster.
Case management software helps a lawyer in keeping all his crucial information safe at one place. With the help of case management softwares you will never lose any important data related to any of your cases.
Case management softwares also makes it easy to share and transfer all kinds of data and essential information to clients and team members.
Social media skills
Social media is a great blessing for all professions if used correctly; similarly, for lawyers as well, social media platforms can be very effective and can increase their reach and network all over the world. Thus, currently, having social media skills are very necessary for every individual and businesses if they want to expand their work.
With the help of social media, you can showcase your talent on social media platforms, you can speak about legal issues that are affecting society, and through these things, you can attract multiple clients who come across your videos or posts on any social media platform. Many young and budding lawyers are using these social media platforms to build their brand online, and it is helping them a lot in carving out a successful legal career.
LinkedIn for lawyers and law student
LinkedIn is one of the most important social media websites that every law student and lawyer must use. LinkedIn can help you in getting internships, Jobs, Necessary information and several other important things. There are multiple tricks and tips which every lawyer and law student must know to use LinkedIn at its best. If you want to learn those tips and tricks, then keep reading.
Tips for using LinkedIn effectively
Create a Professional personal page on LinkedIn, and upload all your achievements, because it will build a better impression.
Connect with professional and other high profile individuals of the legal industry.
Try to regularly post and remain active on LinkedIn, post blogs and articles that you feel are worthy of reading and will catch the eye of other people.
Follow all the important and famous legal organisations and law firms, and keep yourself updated with the opportunities they post on LinkedIn
Explore all the job and internship opportunities available on LinkedIn, and keep applying for those opportunities.
Why do lawyers need social media skills
Social media is a very powerful tool that every lawyer can use to promote their services and get more clients. Other than this, there are multiple other reasons why lawyers should have social media skills, such as:
Networking- One of the biggest advantages of using social media skills is that it helps all the lawyers increase their network and allows them to connect with multiple experienced professionals and get valuable insights from them. Lawyers can use their social media skills to reach out to a large number of people and create a network with people of the same passion.
Increases engagement- With the help of social media platforms, lawyers can increase their engagement and preach their words and work to a larger number of people. Lawyers can respond and help other individuals by answering their questions and helping them out. And these social media skills can also increase the relationship of trust between a lawyer and his client.
Monitoring of reputation– A lawyer gets clients through his reputation, and social media platforms are one of the greatest methods through which lawyers can build their reputation, and they can know what people talk about him and his work. Social media platforms help lawyers monitor their reputation online and respond to all kinds of positive and negative comments made about them.
Keep you updated with industry trends– Lawyers use social media skills to remain updated with all the legal trends happening in the legal industry. Lawyers can get access to all kinds of legal materials and resources on all the emerging issues, current affairs, and legal challenges by various legal organisations, blogs and other influential lawyers.
How can lawyers improve their social media skills
If you are a young lawyer or a law student, then you already know how to use social media platforms, but there are a few things through which you can enhance your social media skills and make the most of them.
Making good quality content– The first and the most important thing that a lawyer can do to improve social media skills is to learn how to create quality content that provides enough information to the audience.
Getting reviews– No one is perfect, and no work can be done perfectly, everything has some flaws which can be fixed. Similarly, you can know the shortcomings of your content that you upload on the social media websites by getting the review of viewers, and after that you can work on those things where you were lagging behind.
Being consistent– In order to improve social media skills, one of the most important things a lawyer can do is to remain consistent and regular because consistency is the key to master any skill. Similarly, if you remain consistent and post regularly on social media you will get to know a lot more about social media and how it works, and your skills will become more polished.
Understand the algorithm- All the social media platforms have some kind of algorithm; observe the legal contents that are posted on these platforms and see what kind of content is being promoted the most. If you make video content, then focus on the quality of your videos and use a hook at the start of your video. Post informational and quality contents that would attract other people.
Get a setup- If you want to become a legal content creator, then invest some money and prepare a setup of a camera and other useful tools. With the help of this setup, you will be able to make good quality content, which will ultimately receive greater reach.
Invest in social media training classes– When it comes to learning social media skills, there are several things that we normal users don’t know about and that you can only learn with the help of a professional. Thus, if you really want to have exceptional social media skills, then invest some money in a good social media course that will teach you about all the whereabouts of social media.
Advertisement skills
Generally, any type of solicitation or advertising is prohibited for lawyers. But they can set their website which indicates their name, address and area of practice. To take their legal career to a whole different level if they have the correct advertising skills. Nowadays, everything has become digital, and people spend more time on screens than on anything. Thus, if a lawyer advertises or promotes his services online in a smart indirect manner, he can attract a huge base of clients. All you need to have is the skills of indirect advertisement, and you should know how and when to promote your services.
How can a lawyer improve advertisement skills
There are multiple ways through which a lawyer can improve his advertising skills, and some of the best ways are:
Social media platforms– If you are a lawyer and want to promote your services, then create a professional profile for yourself on all the social media platforms, especially LinkedIn. LinkedIn is one of the best social media platforms to advertise your services and skill set. Make a profile on LinkedIn, give a brief description of yourself and the services you provide, mention your skills and achievements, and that will help you attract more clients. Stay active on these social media platforms and keep posting about your achievements, skills, and the service you provide.
Networking- Networking is another best method through which lawyers advertise their services. They meet and build a network with several individuals, and they let them know about the services they provide. Through this method, a lot of references are given to them, and through this, they are able to land new clients.
Internships and courses- If you are a lawyer who wants to advertise his services, then you can simply provide internships to law students, and you can also create your own courses. Because a lot of law students look for legal internships, and if you give legal internships to law students automatically, your name and services will be advertised on multiple platforms.
YouTube- Being a lawyer, you can also promote and advertise your work on platforms like YouTube by creating information videos for law students and lawyers. This will help you in showcasing your talent and knowledge to other people.
Seminars and webinars- You can easily promote and advertise your work if you conduct seminars and webinars in collaboration with other institutes. You can talk about your area of specialisation in law and how everyone can become good at it. You can have discussions with other people in the same field and everyone will get to know about your services and specialisation.
Document review skills
Document review is one of the most important skills that a lawyer must have. Lawyers review their documents to make sure that all the information provided in them is correct and there is no mistake present. Other than lawyers, there are other people who do the job of document reviewing, and they are known as document reviewers.
Document reviewers are hired by lawyers and law firms to verify all the documents, contracts and other paperwork and make sure that everything is up to par. If you have sufficient document reviewing skills, then you can also get a job reviewing documents at any law firm.
How to improve document reviewing skills
Attention to detail- If you want to improve your document review skills then the first thing you should keep in mind is attention to detail and you have to check even the minor mistakes present in the document. Because if you don’t pay enough attention to their minor mistakes, then it can lead to significant consequences.
Understanding of legal knowledge– If you want to become skilled in document reviewing, then one of the most important things that you should learn is the procedures of courts and how they work. Knowing the stages of a lawsuit is crucial to becoming a skilled document reviewer.
Subject matter expertise- You must have enough knowledge about the subject related to the document. For example, if you are checking a will or a lease deed, then you must have enough knowledge of property law and family law, respectively.
Technical skills- Technology plays a very important role in the reviewing of documents. If you have technological skills and know how to easily use all the legal software, you can easily review multiple documents without any difficulty.
Fluency in language- In order to become a document reviewer, you should also be fluent in the language in which you review the documents. It is also one of the most crucial things for document reviewing, because if you are not fluent enough in the language, you will take a lot of time reviewing a single document, and if you have enough fluency, you will be able to easily review all the documents and make all the corrections.
Conclusion
The legal profession is full of challenges, but you can overcome all the challenges if you have the required skills. If you are highly skilled and have enough expertise in the field of law, then you can easily make a successful legal career. In this article, we have talked about several crucial skills that a lawyer must have. We hope that you have gone through all the skills, and now you are ready to work on the skills you lack for a better legal career. Thus, if you are a lawyer, then you must try to achieve all the skills that are mentioned here, because these skills will help you remain ahead of other lawyers, and you will also be able to land several clients for yourself.
Frequently Asked Questions (FAQs)
When should we start developing legal skills?
There is no time period on when to start, but it would be best if you start as early as possible. If you start developing legal skills during your college time, then you will have less difficulty in finding clients once you get into the legal profession.
What is the most important skill that every lawyer must have?
The most important skill that every lawyer must have, no matter in which field he is working, is the skill of drafting contracts and agreements.
How to learn drafting skills?
The best way to become skilled in drafting all kinds of contracts and agreements is through getting an online course of drafting that provides in depth classes and assignments related to drafting. Along with that, one could also work under a senior to brush up the drafting skill they learnt in drafting courses.
Does a lawyer need negotiation skills?
Yes, a lawyer definitely needs negotiation skills, because with the help of correct negotiation skills a lawyer can easily represent his client in front of another party, and close the deal mutually without disturbing the relationship between both the parties.
What is the importance of networking skills in a legal career?
Networking plays a very important role in the life of lawyers and law students, because networking is one of the best methods through which they get clients. Even if a lawyer doesn’t possess other skills, but if his networking is strong, he will get more clients than the client who’s got more skills.
Are communication skills important to have a good legal career?
Just like any other skill as mentioned above, communication skills are equally important for lawyers to have a successful career. In fact, communication skill is one of the most important skills that a lawyer can have as it helps in building many other skills such as conflict resolution skills, client counselling, arguing skills etc.
How can I develop reading habits as a lawyer?
Reading is one such skill which can enrich the knowledge of any person, be it lawyer, businessman or any other ordinary person. A lawyer must develop a habit of reading good articles from standard sources, Live Law or Bar and Bench. You can start by reading one article per day and slowly increase the number to 3–4 articles per day. This will also help in enhancing legal knowledge of the readers.
When should a law student start working on developing their legal skills?
There is no hard and fast rule as to when a law student should develop their legal skills, but to form a strong base, a law student must start working on their soft legal skills such as communication and networking, starting from the first year itself. And they can start working on other legal skills from second year onwards.
As a law student, how can I learn contract drafting skills?
Law students usually find less learning opportunities to hone practical skills in their law schools. But as a law student, one can easily learn drafting skills, by taking up online drafting courses and taking up internships in law firms.
How can I start networking with legal fraternities?
The best way to make connections in this technically advanced era is through the LinkedIn platform. Apart from that, a law student can make connections/relations with the lawyers, associates they intern under. Cold emailing is another option.
Weaker sections of society were victims of cruelty and exploitation. They were treated inhumanely in ancient times. The government, NGO’s, and many other organisations have put forth efforts to eradicate these differences but have not attained much success. Manual scavenging is one of those atrocities that took the lives of many scavengers. Manual scavenging is a deeply troubling and inhuman practise that continues to persist in various parts of our country. It perpetuated the cycle of discrimination, poverty, and health hazards. Various legislative and constitutional provisions provide protection against such activities, such as Articles 14, 15, 16, 17, 19(1)(g) and the Prohibitionof Employment as Manual Scavengers and Their Rehabilitation Act, 2013 (MS Act, 2013). In this article, we will discuss the historical background, reasons for doing manual scavenging, reasons for death in Tamil Nadu, and legal provisions available to them.
Meaning of manual scavenging
Manual scavenging refers to the practise of cleaning septic tanks, dry toilets, open drains, gutters, and sewers manually. This activity can take place at private homes, buildings, offices, individual or community toilets, and toilets maintained by municipal authorities. It is a highly degrading and hazardous activity. Scavengers clean those toilets and sewers with bare hands, using brooms, small tin plates, and/or woven baskets. Proper safety and cleaning equipment are not available to them.
History of manual scavenging
India is a diverse country; it has various castes and religions. Manual scavenging was prevalent in India about three thousand (3,000) years ago and has continued till now. In India, castes have been divided into four strata: Brahmins, Kshatriyas, Vaishyas, and Shudras. In Rig Veda’s Purushsukta (Tenth Mandala), it can be traced that the four varnas have emerged from the body of the divine being. It says that Brahmins emerged from the head, Kshatriyas from arms, Vaishyas from the belly, and Shudras from the feet of the divine being or God. Shudras were considered the lowest category of people who would be artisans and labourers. Shudra varna is further divided into various status groups. These groups are categorised as “clean” and “unclean”. Where the clean group included people who were dominant, the unclean groups included washers, tanners, shoemakers, sweepers, and scavengers. They were considered untouchables.
Manual scavenging saw a rise with the invasion of Muslims into North India. They also brought women who wore burkas. During that time, special indoor toilets were made for them. The hostages were forced to clean these indoor toilets.
Manual scavenging in Tamil Nadu
In the beginning of the 19th century, the British government opened administrative vacancies for Indian men in Tamil Nadu. Most of these jobs were offered to Tamil and Telugu Brahmin men. As Brahmins had access to education and were proficient in English, they could obtain these jobs easily. 75% of Tehsildars in the Madras presidency were Brahmins, and 93% of engineering students in engineering colleges were also Brahmins. According to a report, since 1993, 323 deaths have been reported of people engaged in manual scavenging, out of which 144 were from Tamil Nadu. Tamil Nadu government data shows that 11 deaths were recorded in the year 2016. However, the members of an NGO named Safai Karamchari Andolan said that the real number of deaths was 294. A total of 400 people died between 2017 and 2022. According to Union government figures, Tamil Nadu ranked highest amongst all other states with a death rate of 56. Three communities, i.e., Pallars, Parayars, and Chakiliyars of Dalits in Tamil Nadu, are engaged in manual scavenging. Districts like Chennai, Tiruchirapalli, Thanjavur, Nagapattinam, Pudukottai, and Ariyalur have a large number of manual scavengers.
According to some Rajya Sabha sources, 58,098 manual scavengers were identified following the criteria of the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013. Out of 58,098 scavengers, 42,594 belong to scheduled castes, 421 belong to scheduled tribes, 431 belong to OBC, and 351 belong to other categories. According to another report, in May 2023, five people lost their lives in manual scavenging within 18 days in Tamil Nadu.
Reasons for doing manual scavenging
There are various reasons to do manual scavenging, including:
Financial issues
One of the major reasons people engage in manual scavenging is because of their weak financial conditions. To fulfil their family financial requirements, they need employment to earn money; therefore, they indulge in such work to earn their living.
Inadequate sanitation infrastructure
In some areas of Tamil Nadu, especially in rural and economically disadvantaged regions, there is a lack of proper sanitation infrastructure, including sewage systems and flush toilets, necessitating manual cleaning of dry toilets, open drains, and septic tanks, increasing the need for manual scavengers.
Lack of opportunities
Many manual scavengers have limited access to education and job opportunities, which limits them to changing their family occupations and pushes them into manual scavenging as a means of livelihood, even though it is hazardous and demeaning.
Casteism
As we have seen, the division of people based on caste strata has been present since ancient times, when Dalits were doing cleaning jobs, and they have been engaged in the same jobs since then. It became a social stigma that made it difficult for them to come out of it.
Family occupation
Manual scavenging sometimes becomes a family occupation, as sons follow the occupation of their father. They are sometimes excluded in rural areas from other jobs because they are prejudiced based on their father’s profession.
Availability of cheap labour
Another major reason for the increasing rates of manual scavenging is the availability of cheap labour. The contractors easily hire labourers for such work at cheap rates, and scavengers do these jobs because of the lack of availability of other opportunities to earn a living.
Expensive equipment
There are reportedly about 15 innovations developed across the country to replace manual scavenging.States like Hyderabad and Kerala have jetting and robotic machines for cleaning sewers, but Tamil Nadu does not have such machinery. These machines are too expensive, and contractors can only provide them to workers unless the government and corporations make a provision for a subsidy.
The pandemic
Many of the manual scavengers were engaged in this work during the coronavirus pandemic, as there was a complete lockdown in the country and no provisions for earning a living were available to them.
Reasons for death during manual scavenging
There are various reasons for the death of manual scavengers, including:
Toxic fumes
Manual scavengers are exposed to a range of hazardous substances while cleaning septic tanks and sewers, including human waste, toxic gases, and chemicals. These substances lead to various health problems, such as respiratory problems, skin diseases, and gastrointestinal disorders. It may lead to death if not treated within time.
Lack of safety equipment
Contractors do not provide proper protection equipment to manual scavengers, such as gloves, masks, bodysuits, etc. The absence of such equipment makes scavengers do the job manually, which increases the risks of disease and death.
Lack of proper medical care
Manual scavengers often have limited access to healthcare facilities. Even when they fall ill due to their work, they may not receive timely or adequate medical care, leading to the worsening of their health conditions.
Untrained workers
Many manual scavengers lack proper training in safety procedures and emergency responses. They may lack knowledge of the risks associated with the work.
Laws governing manual scavenging
There are various laws that protect the interests of manual scavengers. They are:
Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013
This Act prohibits persons, contractors, local authorities, or agencies from employing people as manual scavengers from and after December 6, 2013. Such an action is punishable under this Act. The offence is made cognizable and non-bailable. It also provided rehabilitation facilities for them and their families, including the provision of one-time cash assistance, subsidies, and loans for an alternative livelihood. It made it mandatory for the local authorities and other agencies to conduct a survey of manual scavengers in their jurisdiction and publish the results.
Constitutional provisions
Constitutional provisions safeguard the fundamental rights of manual scavengers, strive to provide dignity and equality in all aspects, and protect them from any kind of exploitation.
Article 14 gives equality before law and equal protection of law to everyone.
Article 15 forbids discrimination, and it does not exclude any state from establishing particular provisions for the advancement of socially and educationally disadvantaged groups or for SC and ST groups.
Article 17 forbids untouchability and its practises. This constitutional provision has helped to improve the conditions of Dalits, Shudras, and all other deprived people.
Article 19(1)(g) guarantees the right to choose and adopt any profession. Manual scavengers are often subjected to restrictions on their movement, prejudiced for doing unclean work, and rarely given any other opportunity to work. Therefore, manual scavengers can seek protection and support to transition to alternative occupations.
Article 21 guarantees the right to life and personal liberty. Manual scavenging is a practise that deprives individuals of their dignity and endangers their lives. The sufferers can receive protection and rehabilitation.
Article 46 Manual scavenging can be reduced or eliminated by implementing this. Promoting educational and economic interests among SC, ST, and OBC’s helps manual scavengers take on other jobs.
Article 338 safeguards all matters of SC, ST, and OBC’s by appointing special officers to investigate the matters.
The National Commission for Scheduled Castes (NCSC) protects the interests of scheduled castes in India. It monitors, investigates, and inquires about all matters relating to scheduled castes, safeguards their rights, and makes recommendations.
Whether compensation can be awarded to the father of the deceased
Decision
After considering the facts of the case, the court ordered respondents number one (the Chief Secretary) and number two (the District Collector) to pay compensation of ₹5 lakh to the petitioner. The chief secretary and district collector are open to recovering this amount from the third respondent (the Jenni Residency Club), according to law.
A. Nagarajan v. Union Of India
Facts of the case
This case includes three writ petitions inter-connected with each other.
The first petition was a public interest litigation asking the court to order respondents 1 to 17 to recognise all the workers who clean human waste in various public and government sectors as manual scavengers and to order respondents 1 and 13 to set up national, state, and district level committees to monitor and prevent the practise of manual scavenging.
The second petition was a request to the court to order the respondents to issue identity cards to the workers who have been identified as manual scavengers by the petitioner’s committee so that they can get the benefits of rehabilitation under the law and also to form survey and vigilance committees as per the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013.
The third petition was a plea to the court to order the respondents to consider his suggestions and implement the rules as prescribed in the Act.
Decision
In response to this, some directions were issued to the respondent authorities to take stringent actions to avoid manual scavenging, including providing protective and safety equipment, mechanised cleaning of septic tanks abiding by the rules of the Act, paying compensation to victims, etc. for strict compliance, so as to eradicate manual scavenging in entirety.
B.Panju Selvarani v. The Secretary To Government
Facts of the case
In this case, the Supreme Court in Safai Karamchari Andolan v. Union of India directed the government to pay compensation of ₹10 lakhs to the wife of the deceased manual scavenger. A value of 3 lakhs was paid to her, but the remaining amount was not being paid. So, she applied for a writ appeal challenging the denial of interest on the delayed payment.
Issue
Whether interest should be paid to the sufferer’s family on the amount of compensation that is delayed and pending or not
Decision
Therefore, the writ was allowed, and the second respondent was directed to pay the interest at the rate of 8% per annum on ₹7 lakhs from the date of filing the petition.
Conclusion
Finally, the condition of the poorer segments of society engaged in manual scavenging serves as a sharp reminder of the social and economic inequities that continue in our country. Individuals are not only robbed of their dignity, but their health and well-being are also jeopardised, often leading to untimely deaths. It reflects a larger societal issue entrenched in caste-based discrimination, poverty, and a lack of access to education and work prospects.
Governments, civil society organisations, and communities must all work together to eliminate manual scavenging. This includes enacting and enforcing anti-slavery legislation, providing alternative economic possibilities, and investing in sanitation facilities to minimise the need for manual cleaning. Furthermore, there is an urgent need to change public attitudes and overcome the stigma connected with this activity.
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This article is written by Rachna Kumari. This article provides an in-depth analysis of the conflict between fundamental rights and DPSP by discussing the origin, nature, purpose, scope, and landmark judgments of fundamental rights and DPSP.
It has been published by Rachit Garg.
Table of Contents
Introduction
The Constitution of India derives a holistic approach to civic life in a democratic polity. Some rights are guaranteed in the constitution, known as fundamental rights. Article 13 of the Constitution of India gives teeth to the fundamental rights and makes them justiciable, which empowers the citizens to move the court in case of infringement of their fundamental rights.
On the other hand, the Constitution also includes certain directive principles of state policy that aim at realising the high ideals of justice, liberty, fraternity, and equality enshrined under the preamble of our Constitution. They embody the concept of a ‘welfare state’ that seeks to establish not just social but economic democracy in the country. DPSP was framed as the constitution framers aspired for our nation to reach its fullest potential. As our society advanced, conflicts started to arise regarding the superiority of DPSP and FRs. It was on the court to decide which of the two prevailed over the other. We shall understand the same in detail with the help of landmark judgments and recent case laws.
Conflict between fundamental rights and DPSP
Meaning
Fundamental rights and DPSP are the liberties of citizens and directives given to the State for safeguarding the interests of individual rights. Fundamental rights act as a shield against unreasonable actions of the State, whereas DPSP acts as guiding principles to ensure that the state is acting in accordance with the vision of our forefathers to strengthen the country from its core.
Fundamental rights
Fundamental rights are a set of essential, basic, natural and inalienable rights that all human beings have, irrespective of gender, caste, race, religion, etc., and are considered universal and sacrosanct.
According to natural law philosopher John Locke, man is born “with a title to perfect freedom and an uncontrolled enjoyment of all the rights and privileges of the Law of Nature” and he has by nature a power “to preserve his property, that is, his life, liberty and property, against the injuries and attempts of other men”.
During British rule, the basic fundamental rights of Indians were jeopardised to inhumane extents, which led to the discussion of including fundamental rights in the Constitution of India. The need to have fundamental rights was accepted by each and every member of the Constituent Assembly. The question was not even pondered upon as to whether to incorporate fundamental rights into the Constitution or not; rather, the debate all along was to minimise the restrictions being imposed on them. The effort was to keep fundamental rights as broad as possible. The denial of rights during the British era led to the inclusion of fundamental rights in Part III of the Constitution under Articles 12 to 35. The concept of fundamental rights was borrowed from the Constitution of the USA.
DPSP
DPSP are a set of guidelines and principles mentioned in the Constitution of India that make it an obligation on the part of the State to function in such a manner that it is in favour of the citizens. These are the constitutional recommendations given to the State in legislative, executive and administrative matters. The DPSP resembles the ‘Instrument of Instructions’ specified under the Government of India Act, 1935. The DPSP constitutes a very comprehensive list of economic, social and political recommendations for a modern democratic State. They aim at achieving the ideals of justice, liberty, equality, and fraternity enumerated in the Preamble of our Constitution. They incorporate the concept of a ‘welfare state’, which establishes not just social, and political but economic democracy as well.
In the words of Granville Austin, DPSP is aimed at furthering the goals of the social revolution or fostering the revolution by establishing the conditions necessary for its achievements. In Constituent Assembly debates, Dr. B.R. Ambedkar said that “It is the intention of this Assembly that in future both the legislature and the executive should not merely pay lip service to these principles enacted in this part, but that they should be made the basis of all executive and legislative action that may be taken hereafter in the matter of the governance of the country.”
In Charan Singh and Ors v. State of Punjab and Ors (1974), the Supreme Court held that the government, as enjoined under Article 46 of the Constitution and the Directive Principles, particularly Articles 38 and 39(b) and the Preamble of the Constitution, requires economic and social justice to be done to the weaker sections of society, in particular to the Scheduled Castes and Scheduled Tribes, and to prevent them from social injustice and the prevention of all forms of exploitation.
Origin of the concepts of fundamental rights and DPSP
The origin of the fundamental rights and DPSP can be traced back to various sources, historical influences and experiences that our country went through. One of the most influential documents for the adoption of fundamental rights is the US Constitution. Other than that, the British legal system that governed India during the colonial period influenced the Constitution makers to adopt concepts like the rule of law and the protection of individual rights. The concept of DPSP was adopted from the Irish Constitution. It provided a framework for social and economic justice, which was crucial to address the socio-economic problems in post-independent India.
Fundamental Rights
The King of England, John, was facing significant challenges during his reign. Due to his arbitrary decisions and the imposition of heavy taxes on his barons and subjects, the king faced backlash and opposition from the barons. Fearing a civil war, the King issued the Magna Carta, also known as the “Great Charter”, in 1215. It has a significant historical origin with respect to the fundamental rights of individuals, as it laid down the principle that even the king was not above the law and his authority was also limited by the rule of law. It was a crucial document in the development of constitutional principles that continue to influence recent concepts of the rights of individuals and the rule of law. Some of the key provisions that laid down the foundation of fundamental rights include protection from arbitrary arrest, recognition and protection of property rights, limitation of the king’s authority over individuals, access to justice, etc.
Although the Magna Carta was a product of mediaeval feudal society, its principles have had an everlasting impact on the development of constitutional law. The principles of the Magna Carta served as a model for future developments in the acknowledgement of the protection of individual rights, for example, the Constitution of the United States and the Universal Declaration of Human Rights.
The formulation of the US Constitution also serves as a source for the Indian Constitution. Though at the commencement of its Constitution, the U.S. did not contain a specific bill of rights, later on, a series of amendments were made to include individual rights, which is famously known as the Bill of Rights. These amendments enumerate the rights Americans have against the government. It guarantees civil liberties and rights to individuals such as freedom of speech, press and religion, right to keep and bear arms, right against unreasonable search and seizure, right against self-incrimination (in American dramas, a lot of times we see the accused saying, “I invoke the fifth!” This “fifth” refers to the Fifth Amendment, which states that people have the right against self-incrimination and cannot be imprisoned without due process of law (fair procedures and trials). After getting independence from the British, the framers of the Constitution soon enough realised the importance of securing some rights for individuals, which even the State cannot take away. Resultantly, the Bill of Rights and Magna Carta had a significant impact on the Constitution of India, which is evident in the form of Part III of the Constitution, which guarantees fundamental rights to the citizens of India.
DPSP
Directive principles of state policy are mentioned under Article 36 to Article 51 in Part IV of the Constitution. The idea of DPSP is borrowed from the Irish Constitution. The framers of our Constitution realised at an early stage that without economic democracy, there is no use of political democracy. To further that vision, some directive principles were made that promote the prosperity and well-being of the people. DPSP strengthens and promotes the concept of a welfare state by laying down certain socio-economic goals that the government strives to achieve. Broadly, we can say that DPSP is based on the maxim endorsed by Hobbes, Salus Populi Suprema Lex which literally means that the welfare of the people is the supreme law and enunciates the idea of law. The concept of DPSP in the Constitution of India is largely influenced by the Irish Constitution, which has adopted the same from the Spanish Constitution.
Nature of fundamental rights and DPSP
The DPSP and fundamental rights are two crucial components of our constitution that outline the rights of individuals and the obligations of the State. The justiciable nature of fundamental rights and the non-justiciable nature of DPSP are the aspects that set both of them apart. Justiciable means that these rights are protected by the Constitution and can be enforced by approaching the courts.
Fundamental Rights
Fundamental rights are justiciable in nature, which means that they are enforceable in a court of law. In cases where an individual’s rights are violated by the actions of the State or a government authority, the individual has the right to approach the judiciary for relief. Fundamental rights protect citizens from the arbitrary actions of the State. The judiciary acts as a guardian of fundamental rights and is empowered to strike down any government action that violates the rights of an individual. In a nutshell, the justiciability of fundamental rights means that these rights are legally binding and enforceable in the courts.
For example, freedom of speech and expression is a fundamental right under Article 19(1)(a) of the Indian Constitution. After the abrogation of Article 370, the right to speech and expression was compromised as Internet services were shut down in Kashmir. The 4G internet was completely shut down for six months. Later on, 2G services were allowed on some whitelisted sites. On August 4, 2019, after a period of shutdown on 4G services for 18 months, the administration stated that 4G internet was restored on February 5, 2021. In the case ofAnuradha Bhasin v. Union of India (2020), the Supreme Court declared that access to the internet is a fundamental right and the government cannot deprive citizens of fundamental rights except under certain conditions explicitly mentioned in the Constitution.
Similarly, the Right to Life is an integral part of the Constitution under Article 21. Prior to the case of D.K. Basu v. State of West Bengal (1997), many cases of custodial violence and death were reported. Even though compensation was provided, there was no mechanism to hold the police accountable. The Hon’ble Court laid down guidelines to govern arrest and specified the custody procedures required by the police to follow.
DPSP
While fundamental rights create negative obligations on the state, i.e., the state is bound to refrain from doing something, DPSP creates positive obligations on the state, and the state is not answerable in court for not acting in accordance with DPSP. The non-justiciable nature of the DPSP simply means that it is not legally enforceable by the courts for its violation. Therefore, the government cannot be compelled to implement them. However, Article 37 of the Constitution itself says that these principles are fundamental in the governance of the country, and it shall be the duty of the state to apply these principles while making laws.
The enactment of the Right to Education Act, 2009 is a solid example of implementing DPSP to provide free and compulsory education for children aged between six to fourteen. Prior to the enactment, Article 45 and Article 39 (f) of DPSP, had a provision for state funded as well as equitable and accessible education. The 86th Constitutional Amendment, in 2002, provided the Right to Education as a fundamental right under Article 21A of the Constitution.
The Mid-day meal scheme is another example of the implementation of DPSP under Article 47 to improve the level of nutrition of individuals.
Further, the welfare schemes such as MGNREGA are examples of DPSP being implemented in the form of welfare schemes. Article 41 provides for the right to work under DPSP.
Purpose of fundamental rights and DPSP
Fundamental rights and DPSP are part of the Indian Constitution. But they are incorporated for different purposes, as stated below. Before that, it should be noted that despite having conflict on the basis of different purposes they sought to achieve, they do have a common purpose of achieving the welfare of the citizens because India is a welfare state.
Fundamental rights
Fundamental rights are a crucial part of the Constitution of every democratic nation. The purpose of fundamental rights is to safeguard the liberty, dignity, and equality of individuals, which promotes a just and harmonious society. In the case of Maneka Gandhi v. Union of India(1978), the Hon’ble Supreme Court has given a wider interpretation to Article 21 and reiterated that the right to life isn’t just about survival; it extends beyond mere animal existence. The fundamental rights ensure that people are treated equally, fairly and respectfully in society. They give us the liberty to express ourselves and practise our beliefs without unreasonable intervention by the State or individuals. FR’s give everybody a chance to contribute to the community to their fullest extent.
DPSP
DPSPs are the guiding principles that aim to guide the government in its policy formation and decision-making processes. The basic purpose of DPSPs is to create a framework for a just and equitable society. DPSPs guide the government to work towards reducing inequalities and providing opportunities to every section of society.
In his book, ‘An Ambassador Speaks’ while talking about the applicability of DPSP MC Chagla (former Chief Justice of India), he stated that “If all these principles are fully carried out, our country would indeed be a heaven on Earth. India would then not only be a democracy in the political sense but also a welfare state looking after the welfare of its citizens”. These principles facilitate stability and continuity in domestic and foreign policies in the political, economic and social spheres in spite of the changes in the party in power. They also serve as a crucial test for the performance of the government. Citizens can examine the policies of the government, keeping the DPSPs in consideration.
Scope of fundamental rights and DPSP
The scope of fundamental rights and DPSP defines their extent and applicability. The scope of fundamental rights is centred on the protection of individual liberty, whereas the scope of DPSP is broader as it focuses on social and economic welfare and puts an obligation on the State to continuously work towards the welfare of society.
Fundamental rights
Fundamental rights include a wide range of individual liberties and protections. They include the right to life, liberty, and freedom of religion and ensure that everyone is protected from the arbitrary actions of the State. In A.K. Gopalan v. State of Madras (1950), the Supreme Court took a narrow interpretation regarding the scope of fundamental rights and focused only on the physical liberty of citizens, ignoring the other aspects that contribute to a meaningful life, such as the right to live a dignified life, right to privacy, freedom of speech and expression, etc. This case highlighted the need to broaden the scope of fundamental rights beyond the literal interpretation and inculcate purposive interpretation.
Further, in the case of Kesavananda Bharati v. State of Kerala (1973), the Supreme Court reinforced the principle of basic structure and held that although the Parliament has the power to amend the Constitution, while doing so, the basic structure cannot be altered. This case also reaffirmed that fundamental rights form an essential part of the basic structure. Further, in the case of Maneka Gandhi v. Union of India (1978), the Apex Court significantly expanded the scope of fundamental rights, and the Hon’ble Court ruled that Article 21 cannot be limited to mere existence but includes the right to live with dignity.
These cases reiterate that the Constitution is dynamic in nature and that its interpretation evolves with contemporary times. The expanded view taken by the Supreme Court in recent judgements assures that fundamental rights cannot be curtailed unreasonably.
DPSP
The scope of DPSPs incorporates multiple dimensions, such as socialistic principles that reflect the ideology of socialism. They direct the State to promote the welfare of society by securing a social order permeated by justice and reducing inequalities. To secure the right to adequate means of livelihood for all citizens (Article 43), prevent the concentration of wealth [Article 39(c)], equal pay for equal work for men and women [Article 39(d)], promote equal justice and provide free legal aid to the poor (Article 39-A) inserted by the 42nd Constitutional Amendment Act, 1976, to make provisions for just and humane conditions of work and maternity relief (Article 42), are all examples of the expanded scope of DPSPs.
These guiding principles also take inspiration from Gandhian ideology. Organising village panchayats and endowing them with necessary powers (Article 40), promoting the educational and economic interests of SCs, STs, and other underprivileged sections of society, etc. (Article 46), are representative of programmes enunciated by Gandhi during the National Movement against Britishers. Other than that, DPSPs also inculcate liberal principles such as securing for all citizens a Uniform Civil Code throughout the country (Article 44), providing early childhood care and education for all children under the age of six years (Article 45) substituted by (86th Constitutional Amendment Act, 2002), promoting international peace and security, maintaining just and honourable relations between nations, etc. (Article 51).
Classification of fundamental rights and DPSP
The fundamental rights provide civil, political, social, economic, cultural and educational rights to individuals, whereas the DPSP obligates the State to work towards the social, democratic, and economic welfare of the people of the country.
Fundamental Rights
The Constitution provides six fundamental rights to the citizens of India, which are as follows:-
Right to equality (Article 14– 18): The right to equality ensures that all citizens are equal before the law. It prohibits discrimination on grounds of religion, race, sex, or place of birth. It includes the right to equality of opportunity in public employment and the abolition of untouchability.
Right to freedom (Article 19–22): This right includes freedom of speech and expression, freedom of assembly and association, freedom to move throughout the territory of India, and right to reside and settle in any part of the country.
Right against exploitation (Article 23–24): This right aims to prevent the exploitation of vulnerable groups/sections of society, such as children, women, the elderly, etc. It prohibits human trafficking, forced labour, and employment of children in hazardous industries.
Right to freedom of religion (Article 25–28): This right guarantees freedom of conscience and the right to profess, practice and propagate any religion. It also protects the right of religious denominations to manage their own affairs without the intervention of the State. However, the State has the right to regulate or restrict some religious practices that disrupt public order, morality, and health.
Cultural and Educational Rights (Article 29–30): These rights protect the interests of minorities by allowing them to conserve their language, script, and culture.
Right to constitutional remedies (Article 32): This right is referred to as the “Heart and Soul of the Indian Constitution” as it empowers citizens to approach the Supreme Court for the enforcement of their fundamental rights. The court is empowered to issue writs for the protection of these rights.
It is pertinent to note here that the right to property was one of these fundamental rights prior to 1978, but after the 44th Amendment, this right was deleted from the list of fundamental rights and was made a constitutional right under Article 300-A of the Constitution.
DPSP
The constitution of India does not contain any classification with regard to directive principles. However, based on their content and direction, they can be broadly classified into three categories, such as socialistic, Gandhian and liberal-intellectual.
Socialist Principles
These principles reflect the ideology of socialism. They lay down the idea of a democratic socialist state that aims at providing social and economic justice to its citizens and sets the path towards a welfare state. Some of the examples of these principles that are enshrined under Part IV of the constitution are as follows:-
Article 38 – This Article is incorporated to promote the welfare of the people by securing a social order permeated by justice-social, economic and political and to minimise inequalities in income, status, facilities, and opportunities.
Article 39- To secure the right to adequate means of livelihood for all citizens, the equitable distribution of material resources of the community for the common good, prevention of concentration of wealth and means of production, equal pay for equal work, etc.
Article 39A – To promote equal justice and to provide free legal aid to the poor.
Article 41– To secure the right to work, education and public assistance in cases of unemployment, old age, sickness, and disability.
Article 42 –To make provision for just and humane conditions of work and maternity relief.
Gandhian Principles
Article 40 – To organise village panchayats and endow them with the necessary powers and authority to enable them to function as units of self-government.
Article 43 – To promote cottage industries on an individual or cooperative basis in rural areas.
Article 46 – To promote the educational and economic interests of SC, ST, and other weaker sections of society in order to protect them from social injustice and exploitation.
Article 47 – To prohibit the consumption of intoxicating liquor and drugs which are injurious to health.
Liberal-Intellectual Principles
Article 44 – To secure for all citizens a uniform civil code throughout the country.
Article 45 – To provide early childhood care and education for all children until they complete the age of six years.
Article 48 – To organise agriculture and animal husbandry on modern and scientific lines.
Article 48A – To protect and improve the environment and to safeguard the forests and wildlife..
Article 49 – To protect monuments, places, and objects of artistic or historic interest which are declared to be of national importance such as the Taj Mahal, Red Fort, Ajanta Caves etc.
Article 50 – To separate the judiciary from the executive in the public services of the State.
Article 51 – To promote international peace and security and maintain just and honourable relations between nations, to foster respect for international law and treaty obligations, and to encourage settlement of disputes by arbitration.
Position of fundamental rights and DPSP during Emergency
The position of fundamental rights and DPSP during an emergency is a crucial aspect. During an emergency, some of the fundamental rights can be subjected to suspension, whereas the Constitution does not provide for suspension of DPSP even during an emergency. The State must aim to strike a balance between maintaining law and order viz-a-viz upholding socio-economic ideals.
Fundamental rights
Fundamental rights, being an integral part of the Constitution, cannot be taken away easily. However, during unprecedented times, the President of India can suspend the fundamental rights on the declaration of emergency. Under Article 359 of the Indian Constitution, the president has the power to suspend the FRs during internal and external emergencies. During an emergency, FR’s mentioned under Article 19 are suspended automatically, but Articles 20 and 21 cannot be suspended even during an emergency.
A few examples of when FRs of individuals were curtailed are:-
COVID-19: The right to move freely was compromised during COVID-19 to avoid the spread of coronavirus.
Abrogation of Article 370: When Article 370 was suspended, the emergency was declared by the President, and hence the fundamental right to freedom of speech and expression was compromised.
Telecommunication services are often terminated temporarily in areas where situations of internal disturbance and aggression arise, such as Manipur violence, Nuh violence, etc.
DPSP
Even though DPSPs are not legally enforceable, they must be protected for the overall development of our country. Some steps by which protection of DPSPs can be ensured by the government include taking proactive steps in reviewing the various policies and tracking their implementation. During an emergency that is declared under Article 352 of the Constitution, the DPSP is significantly impacted. During a national emergency, the President has the authority to suspend certain fundamental rights guaranteed under Part III of the Constitution. However, the DPSP doesn’t suspend automatically during an emergency. As, during an emergency, the focus of the government is more on maintaining law and order and safeguarding the security of the nation, it is probable that DPSP can be affected.
Enforceability of fundamental rights and DPSP
The enforceability of fundamental rights and DPSP differ significantly. Fundamental rights are legally enforceable and capable of providing relief to individuals when violated. On the other hand, DPSPs are moral and political guiding principles that are not enforceable in court.
Fundamental rights
Since FRs are legally enforceable in court, individuals whose FRs are violated can initiate legal proceedings against the State. One of the fundamental rights of citizens is the right to constitutional remedies under Article 32. This right enables citizens to move to the Supreme Court for enforcement of their rights. Article 32 confers citizens with the right to approach the Supreme Court for constitutional remedies when their fundamental rights are violated. The Supreme Court can issue writs such as Habeas corpus, certiorari, Prohibition, Mandamus and quo warranto to question the authorities. In cases of violation, the courts can grant orders of compensation.
Notably, Article 226 (not a fundamental right) empowers the High courts to issue writs. This article gives the High Courts of India a similar power to issue various writs in cases of violation of fundamental rights or legal rights.
In the case of the Secretary, Ministry of Defence v. Babita Puniya & Ors. (2020), the women officers were being discriminated against as they were inducted into the army only through the Short Service Commission, which deprived them of benefits like pensions and promotions that male officers used to get because of their induction through the Permanent Commission. The State argued that granting a permanent commission can result in mismanagement, as women would claim for maternity leave, etc. The court rejected the State’s contention and held that the actions of the State were violative of Article 14 of the Constitution and it directed the State to grant permanent commission to women officers as well.
In the case, Young Lawyers Association & Ors. v. The State of Kerala & Ors. (2018), famously known as the Sabarimala Temple case, the Supreme Court held that restricting the entry of women aged between 10-50 into the Sabarimala temple is unconstitutional and violative of Articles 14, 15, 19(1), 21 and 25. The court allowed the entry of women of every age group.
DPSP
DPSP are a set of non-justiciable principles, which means that they are not legally enforceable by the courts, in cases of violation or non-fulfilment. In the case of UBSE Board v. Hari Shankar (1979), the SC reiterated that the DPSP are not enforceable in courts as they do not create any justifiable rights in favour of any person.
Article 37 of the Constitution states that the provisions contained in Part IV of the Indian Constitution shall not be enforceable by any court, but the principles that are laid down are crucial for good governance in the country, and it shall be the duty of the state to apply the given principles while making laws for the country. In the constituent assembly debates, while talking about the importance of DPSP, Dr. B.R. Ambedkar categorically mentioned that “a government which rests on popular vote can hardly ignore the directive principles while shaping its policy. If any government ignores them, it will certainly have to answer for that before the electorate at the election time.”
As the DPSP are non-justiciable, the Constitution makes it clear that ‘these principles are important for the governance of the country, and it shall be the duty of the state to implement these principles in making laws’. Thus, they impose a moral obligation on the state for their implementation.
Even though the DPSP are non-enforceable, the State can endeavour to make these non-enforceable principles into enforceable law by converting them into legislation. Some of the directive principles which are incorporated in legislation are as follows:-
Summarising the difference between fundamental rights and DPSP
Serial No.
Basis of Difference
Fundamental Rights
DPSP
Definition
Rights granted to citizens by the Constitution guarantee freedom to an individual and other bundle of rights.
Principles and guidelines for the government to follow while making laws for the Country.
Constitutional provision
FRs are guaranteed under Part III (Article 12-35) of the Constitution.
DPSP is enshrined under Part IV (Article 36-51) of the Constitution.
Nature
FRs are negative in nature as they prohibit the State from taking certain actions.
DPSP are positive in nature as they require the State to take certain actions.
Justiciability
They are justiciable. In case of violation, a person can directly approach the court of law.
They are non-justiciable which means that in case of violation, they are not legally enforceable by the courts.
Aim
They aim to establish political democracy in the country.
They aim to establish social and economic democracy in the country.
Sanctions
They have legal sanctions.
They have political and moral sanctions.
Scope
As they promote the welfare of an individual; they are considered personal and individualistic.
Since they promote the welfare of the whole society; they are considered societarian and socialistic.
Implementation
They are automatically enforced and do not require any separate legislation for their implementation.
They are not enforced automatically and require legislation for their implementation.
Role of Judiciary
If a law is violative of the fundamental rights of an individual, the courts are bound to declare that law unconstitutional and void.
If a law is violative of any directive principle then courts cannot declare that law as unconstitutional and void. However, they can uphold the validity of a law on the basis that it was framed to give effect to a directive principle.
Adoption
FRs as a feature were borrowed from the US Constitution.
DPSP as a feature was borrowed from the Constitution of Ireland.
Example
E.g. Right to Equality, Right to Freedom, Right against exploitation
E.g. Organisation of village panchayats, Promotion of cooperative societies etc.
Landmark judgments surrounding fundamental rights and DPSP
Champakam Dorairajan case
State of Madras v. Srimathi Champakam (1951) is a landmark case that dealt with reservations in India. The judgement in this case led the parliament to amend the Constitution of India for the very first time. This case started the discussion of introducing reservations in educational institutions, employment, etc. for the marginalised sections of our society. This case also demonstrated that while both fundamental rights and DPSP are integral parts of the Constitution, a harmonious interpretation of the provisions is necessary to ensure that the state’s efforts to promote social, economic and political justice do not infringe on the rights of the individuals.
Facts
In 1927, the Province of Madras issued a government order ‘Communal G.O.’, which reserved seats in four medical colleges of the State for different castes. A total of 330 seats were available for students at those four colleges. The distribution of seats was such that six seats were reserved for non-Brahmin Hindus, two for backward Hindus, two for Brahmins, two for Harijans, one for Anglo-Indian Christians, and one seat for Muslims.
In 1950, Champakam Dorairajan, a Brahmin woman, filed an application to the Madras HC under Article 226 of the Constitution of India, stating that her fundamental rights under Article 15(1) and 29(2) had been infringed. Article 15(1) states that ‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them’. Article 29(2) states that ‘No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them’.
Issue
Whether the communal G.O. of 1927 that reserved seats for admission in educational institutions on the basis of caste, religion, race etc. was violative of fundamental rights guaranteed to the citizens under Article 15(1) and 29(2) of the Constitution of India.
Judgement
K. Kuttikrishna, the then Advocate-General of Madras, argued that according to Article 46, the State has a duty to promote the educational and economic interests of the underprivileged sections of society, especially Scheduled Castes and Scheduled Tribes. He also stated that Article 46 is a part of Directive Principles of State Policies, which are fundamental for good governance in the country.
The Hon’ble SC held that the communal G.O. is based on caste, religion and race, which is discriminatory in nature and is violative of fundamental rights guaranteed by Part III of the Constitution. Reserving seats for individuals on the basis of religion, race, or caste is against the Constitution. The SC also held that the DPSPs are unenforceable in court. Part IV has to run as a subsidiary to Part III of the constitution. In case of any conflict, the Fundamental Rights shall prevail over the DPSP.
Golaknath case
After India gained independence from British rule, the newly formed constituent assembly drafted the Constitution of India. In the 1950s and 1960s, many states in India started implementing land reforms for the redistribution of agricultural land from large landlords to small landless farmers. These land reforms often placed a cap on the maximum land one person could own. I.C. Golaknath v. State of Punjab (1967)is significantly important in the legal and constitutional history of India. It dealt with a key question of whether the parliament had the power to amend the FRs that are guaranteed under Part III of the Constitution of India.
Facts
One Henry and William Golaknath possessed five hundred acres of land in Jalandhar, Punjab. The Punjab government passed the Punjab Security and Land Tenures Act, 1953 (hereinafter referred to as PSLTA, 1953). As per the Act, a person could own only 30 standard acres (or 60 ordinary acres) of land. As a result, the Golaknath brothers were asked to forgo the surplus land they owned. They challenged the validity of PSLTA, 1953, on the ground that it was violative of Article 14 and Article 19(1)(f) and deprived them of their fundamental right to possess property. Additionally, they urged the court to declare the 17th Constitutional Amendment, 1964 (which placed PSLTA, 1953, in the ninth schedule) unconstitutional and ultra vires. Basically, the 17th Constitutional Amendment amended Article 31A and extended the definition of ‘estate’ to include ryotwari and agricultural lands. Further, the Ninth Schedule was also amended by inserting the Mysore Land Reforms Act, 1961 and the Punjab Security of Land Tenures Act, 1953. This amendment saved the two Acts from being declared unconstitutional on the grounds that they are inconsistent with the fundamental rights (Articles 13, 14 or 31) provided under the Constitution.
Issue
Whether the parliament has the ultimate power to amend the fundamental rights guaranteed by Part III of the Constitution of India?
Judgement
With a ratio of 6:5, the SC held that the Parliament has no right to amend the fundamental rights. As per Justice Subba Rao, the 17th Amendment violated the fundamental right to acquire land and engage in any lawful profession. However, because the doctrine of prospective ruling was applied, the Supreme Court decision had no bearing on the constitutionality of the 17th Amendment or the PSLTA of 1953. Justice Subba Rao emphasised that the Parliament does not have the power to amend Part III of the Constitution. The Supreme Court’s historical decision led to the 24th Constitutional Amendment in 1971. This amendment empowered the Parliament with the power to amend any part of the Constitution, including Part III, which was further challenged in the Kesavananda Bharati case.
Kesavananda Bharati case
Kesavananda Bharati v. State of Kerala (1973) is one of the most landmark and consequential cases in the constitutional history of India. This case is remarkable in itself as it shows the tussle between the scope of parliamentary authority viz-a-viz the safeguarding of fundamental rights guaranteed to citizens by the Constitution of India.
Facts
Kesavananda Bharati (hereinafter referred to as the petitioner) was the head priest of a religious sect of the Edneer Mutt with its main office in Kasaragod, Kerala. The petitioner had certain land areas of the sect registered under his name. There were some disagreements going on between the state government and the members of the sect regarding the ownership of the land. The state government of Kerala introduced the Land Reforms Amendment Act, 1969, which entitled the government to acquire the sect’s land. The petitioner moved the SC under Article 32 of the Constitution for infringement of his fundamental rights under Article 14 i.e., right to equality, Article 19(1)(f) i.e., freedom to acquire property; Article 25 i.e., Right to practise and propagate religion, Article 26 i.e., Right to manage religious affairs and Article 31 i.e. compulsory acquisition of property.
As the court entertained the petition, the Kerala government introduced the Land Reforms Amendment Act, 1971. After the case of I.C. Golaknath v. State of Punjab (1967), the government made several amendments, such as
25th Constitutional Amendment (1972) specified that the state government is not responsible for equally compensating the owner of the property if his private property is taken by the government, and
29th Constitutional Amendment (1972) – The Kerala Land Reforms Act (hereinafter referred to as ‘Act’) was inserted into the 9th schedule, which brought the matters related to the Kerala Land Reforms Act outside the purview of the judiciary,
The provisions of the ‘Act’ along with the 24th, 25th and 29th Amendments were challenged in court.
Issue
Whether the 24th Amendment is constitutionally valid or not.
Whether the 25th Amendment is constitutionally valid or not.
Whether Parliament can amend the Constitution or not.
Judgement
The pivotal question was answered by the Hon’ble Supreme Court with a paper-thin majority of 7:6. The Hon’ble Court held that Parliament can indeed amend any provision of the Constitution, provided that the amendment shall not alter the ‘Basic structure’ of the Constitution. The court upheld the constitutionality of the 24th Amendment Act. Regarding the second issue, the court found the 2nd part of the 25th Amendment to be ultra vires (beyond the scope of legal power/authority). It was held that the doctrine of ‘Basic structure’ has to be followed by the parliament while amending the Constitution.
Minerva Mills case
Minerva Mills v. Union of India (1980) is a landmark decision that safeguarded the ‘fundamental framework’ of the Constitution, which was amended by the Parliament. This case also highlights the equilibrium that is to be maintained between the parliamentary authority and the fundamental rights of individuals.
Facts
To serve the interests of the general public, the Parliament came up with a plan that involved reconstructing the poor assets of those companies/ enterprises that are of public importance. Consequently, parliament passed the Sick Textile Undertakings (Nationalisation) Act, 1974, to work towards its goal of securing the enterprises.
Minerva Mills was a textile company in Karnataka that produced silk clothes. The government was of the opinion that Minerva Mills is a sick company (a company that has faced losses equal to or exceeding its entire net worth at the end of any financial year) and needs intervention in its affairs. So, the government set up a committee under Section 15 of the Industries (Development and Regulation) Act, 1951 and authorised the National Textile Corporation Ltd. to manage the affairs of the company.
Through the 39th Constitutional Amendment, 1975, nationalisation was included in the 9th schedule, which was outside the realm of judicial review. Thereafter, the company was taken over according to the provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974. After the case of Indira Gandhi v. Raj Narain (1975), to gain an upper hand and ultimate power, the Parliament passed a 42nd amendment, which amended Article 31C. Additionally, Section 55 of the 42nd Constitutional Amendment Act, 1976, which stated that “No amendment of the Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground” amended Article 368 of the Constitution. The said amendment to Article 31C stated that no legislation that gave effect to the DPSP could be held unconstitutional and be struck down by the court on the basis that it is violative of Article 14 or Article 19 of the Constitution. To neutralise the decision given in Kesavananda Bharati v. State of Kerala, Parliament made an amendment to Article 368 by adding two clauses that declared that any amendment (including Part III) made under Article 368, whether before or after the enactment of Section 55 of the Amendment Act, 1976, shall not be called into question in any court on any ground, and there shall not be any limitation on the power of the parliament to amend any provision of the Constitution.
The petitioners challenged the validity of various provisions of the Nationalisation Act, 1974, Sections 4 and 55 of the Amendment Act, 1976, the order of the government to nationalise Minerva Mills, and the priority given to DPSPs over FRs.
Issue
Whether amendments to Articles 31C and 368 are constitutional or not.
Whether DPSPs can be preferred over FRs or not.
Judgement
The Hon’ble Court made its decision with a ratio of 4:1. The court held that the parliament has the power to amend the Constitution, but the basic structure of the Constitution cannot be amended. The amendments made in Article 368 were held unconstitutional as they hampered the basic structure and also barred the court from its power of judicial review, which is against the spirit of the Constitution.
Regarding Article 31C, the court held that prioritising Part IV over Part III would destroy the basic structure. The very basic and fundamental rights, such as the Right to equality and Freedom of Speech and Expression are subjected to vulnerability, which is very problematic. The Court also relied on the significance of the Golden Triangle, i.e., Articles 14, 19 and 21. The court added that Article 31C robbed two sides of this triangle.
In case of conflict, which one shall prevail
The justiciable nature of FRs and the non-justiciable nature of DPSPs have caused a conflict between the two since the inception of the constitution. Until the judgement of the SC in the case of State of Madras v. Srimathi Champakam (1951), there was a constant conflict between FRs and DPSPs on which of them shall prevail over the other. The SC settled this question in this case by ruling that in cases of conflict between FRs and DPSPs, FRs shall prevail. It held that DPSP has to comply with FRs and run subsidiaries for them.
Further, in Minerva Mills v. Union of India (1980), the SC held that fundamental rights “are not an end in themselves but are the means to an end.” The end goal is mentioned in the DPSP. It was also held that the FRs and DPSP together “constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution”. The Constitution of India is founded on the bedrock of the balance between the FRs and DPSPs. They are similar to the two wheels of a chariot that shall go together for a smooth journey. Giving superiority to one over the other will disrupt the purpose of the Constitution. The balance between both is an essential element of the basic structure of our constitution.
In State of Kerala v. N.M. Thomas (1975), the SC held that the DPSP and FRs should be construed in harmony with each other and that every attempt should be made to resolve any apparent inconsistency between the both.
In the case of Gujarat Mazdoor Sabha v. State of Gujarat (2020),the SC mentioned that the Constitution is a charter that solemnises the transfer of power. However, the constitutional vision of Swarajya transcends the devolution of political power. The fundamental rights and directive principles of State policy present a coherent vision of a welfare state that contemplates social, political and economic justice. Granville Austin, in his seminal work on the Constitution of India, has described FRs and DPSP as “the conscience of the Constitution which connects India’s future, present, and past by giving strength to the pursuit of social revolution in India”.
Conclusion and way forward
A conflict between fundamental rights and DPSP can arise due to tension between individual liberties and the collective welfare of society. For a harmonious society, it is essential to find a balance between them. Courts need to adopt an approach of purposive interpretation when a conflict arises between FRs and DPSPs. The government should frame policies in such a way that the objectives of FRs and DPSPs are met and conflict is minimised.
Over the years, the Supreme Court has reiterated the fact that fundamental rights and Directive Principles of State policy should go hand in hand and both must coexist harmoniously. Efforts should be made by the State to achieve the goals set in the DPSP without compromising the fundamental rights of individuals. The Supreme Court has restated the importance of balance between FRs and DPSP in the case ofI.R. Coelho v. State of Tamil Nadu (2007). The Hon’ble Court held that as DPSPs are negative and positive obligations on the State, the constituent assembly has imposed a duty on the government to adopt a middle ground between the liberty of the citizens and the welfare of the people. FRs and DPSP should be balanced with an inclination towards the public good. However, this balance should not take precedence over the fundamental rights of individuals.
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This article is written by Devansh Sharma, Nikunj Arora and has been updated by Naincy Mishra. This article deals with a detailed explanation of Article 15 of the Constitution, its various aspects, evolution and related judicial pronouncements.
It has been published by Rachit Garg.
Table of Contents
Introduction
The Constitution of India guarantees various rights to its citizens, including no discrimination on account of religion, race, caste, or place of birth. Part III of the Indian Constitution establishes this right under the heading of Fundamental Rights. In India, religion and caste-based discrimination have existed for a very long time. In every part of India before independence, discrimination was evident, whether through untouchability or the division of upper and lower castes. Discrimination still exists today; however, the consequences of such discrimination are much more severe and punishable.
According to the 8th Schedule of the Constitution, India recognises a total of 22 languages. But in reality, there are more than 1,500 languages spoken in India other than the official languages of Hindi and English. The Hindi language is spoken by roughly 44.63 percent of the Indian population. Diversity often leads to differences of opinion, and those differences of opinion sometimes lead to discrimination. A major source of discrimination in India is caste discrimination, which still occurs in some parts of the country. Traditionally, the general divide in society was between the lower castes and the upper castes. There had been untouchability for the lower castes. India has now outlawed this rule because it is so unacceptable.
The stories of women being beaten up for drawing water from wells, people being harassed if their shadow falls on other men, devotees being stopped from entering the temple, and being beaten up for touching idols of gods have become a common affair in newspaper headlines whenever I go through one. It seemed to me like a nightmare that has compelled me to look into the provisions in force that prohibit such differentiation.
A number of cases involving discrimination are based on a variety of variables. Caste and religion have been the major causes of discrimination in India for most of its history. The practice of discriminating on the basis of gender is not new either. This includes discriminating against women as well as LGBTIQA+ individuals. Decriminalising Section 377 of the Indian Penal Code, 1860, in 2018 marked the first step in recognising the LGBTIQA+ community. A discriminatory act causes emotional pain, mental distress, and social isolation. Article 15 of the Constitution has been widely needed and has existed ever since it came into force. There are five clauses in Article 15 that specify types of discrimination that are strictly prohibited.
This article examines the provisions of Article 15 of the Indian Constitution, which protects its citizens from discrimination of any kind. Considering India has so many religions, beliefs, languages, cultures, etc., and has such a diverse population, there is no doubt that discrimination can occur in such a country. Thus, the purpose of Article 15 is to protect the rights and interests of citizens.
Scope of the word ‘discrimination’
Discrimination occurs when you are distinguished or treated in a less favourable manner than another person under similar circumstances, or if you are disadvantaged by being placed on equal footing with another under different circumstances, for example, because you are disabled or pregnant. This action cannot be reasonably and objectively justified.
Article 15 restricts discrimination on the grounds of:
Religion – It means that a state or any group cannot discriminate against a person on the basis of religion from accessing any public place or policy.
Race – A person should not be discriminated against on the basis of his/her ethnic origin. For example, a citizen of Afghan origin should not be discriminated against by those of Indian origin.
Caste – It prohibits the discrimination on the basis of caste. Generally, it is to prevent atrocities committed by the upper caste.
Sex – No individual should be discriminated against on the basis of their gender. For example, discriminating against females, transgenders, etc.
Place of birth – The place where an individual is born should not become a reason for discrimination.
Often, the word ‘Discrimination’ is perceived to be contrary to the principles of equality. Individuals tend to confuse discrimination with a breach of equality. Can something that is disadvantageous and against the general classification of the individual be taken as discrimination? The answer remains ‘NO’. The Supreme Court has observed in the following cases that every classification does not constitute discrimination in the first place.
In the case of Kathi Raning Rawat v. State of Saurashtra (1952), special courts under the Saurashtra State Public Safety Measures Ordinance 1949 were set up by the state of Saurashtra to adjudicate on the matters of Section 302,Section 307and Section 392 read with Section 34 of the Indian Penal Code (IPC), 1860. The contention brought before the court was that these provisions are discriminatory for the residents depending upon the territory.
The court stated that all kinds of legislative differentiation are not discriminatory. The legislation did not refer to certain individual cases but to offences of certain kinds committed in certain areas, and hence it is not discrimination.
In another significant case of John Vallamattom v. Union of India, (2003), the petitioners were prevented from bequeathing property for religious and charitable purposes by the Indian Succession Act 1925. The petitioner contended it to be discriminatory against the testamentary dispositions by a Christian.
The Supreme Court stated that the Act was to prevent people from making injudicious death-bed bequests under religious influence but had a great impact on a person desiring to dispose of his property upon his death. Hence, the legislation is clearly discriminatory, as the properties of any Hindu, Muhammadan, Buddhist, Sikh, Jain or Parsi were excluded from the provisions of the Act. Further, the respondents could not provide any acceptable reasoning as to show why the provision regulates religious and charitable bequests of Christians alone.
When the concept that a reasonable classification can never amount to discrimination is clear, we suddenly get stuck by the idea of reservation. Is it not discriminatory to differentiate between two candidates who are appearing for the same post or exam with the same qualifications? What allows provisions for such differentiation to be made?
Overview of Article 15 of the Indian Constitution
In India, Article 15 protects citizens from racism, untouchability, and various forms of discrimination based on religion and gender. In India, caste discrimination is the type of discrimination that is most prevalent. Discrimination and untouchability are a result of caste division. Untouchability is now an offence in India; however, in some areas due to a lack of legal awareness and caste beliefs, people still face untouchability. It is assumed that those born in lower castes are considered lower than those born in higher castes, and this leads to discrimination against them. Such discrimination is described as an offence in Article 15 and those found guilty of the offence are punished. In order to facilitate the economic advancement of the socially and economically backward sections of India’s citizens, the Constitution of India provides reservations to the Scheduled Castes, Scheduled Tribes, and Other Backward Classes.
Interestingly, in 2019, the Central Government introduced the 124th Constitution Amendment Bill (2019)in Parliament in order to provide reservations to economically weaker sections (EWS). The bill was intended to provide a 10% reservation in higher education and government employment to EWS. Consequently, the Constitution (One Hundred and Third Amendment) Act, 2019was passed and thus, Article 15 was amended to include clause (6). This was done to provide equal opportunity to EWS, as they had been disadvantaged economically and socially due to pre-independence discrimination and difficulties.
Besides discrimination on the basis of backwardness, Article 15 also addresses gender-based discrimination. For a long time, women have been fighting for their rights and opportunities, and slowly, these provisions are gaining recognition despite the fact they have existed since the 1950s. Thus, the scope of this article extends to women too, which provides them with special protection in order to achieve the aforementioned objective of equal rights.
Clause 1 of Article 15 of the Indian Constitution
As stated in Article 15(1), there shall be no discrimination against any citizen of India on the basis of religion, race, caste, gender, or place of birth. Despite the fact that castes are divided into scheduled castes/tribes, backward classes, no one should be discriminated against. As a broad term, discrimination has many aspects, and it is unjust. People of lower castes, like Dalits have been the target of unjust treatment in numerous instances. Based on the survey by the Hindu, there has been an increase of 6% in unfavourable bias towards Dalits since 2009.
There are laws to protect them, including the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, but still, cruelty occurs towards the SCs/STs in certain parts of the country. In some situations, the lower caste people face many troubles, such as women being raped and people being killed as a result of protests and caste-related conflicts. In September 2020, a gang rape case took place in Hathras, a district in Uttar Pradesh, in which a 19-year-old Dalit girl was raped (Satayama Dubey & Ors v. Union of India, 2020).
Additionally, Dalits are also often targeted for atrocities for no apparent reason. For example, there was a case where the houses of 18 Dalits were set on fire in April 2010. The incident occurred because of a dog barking at a higher-class man. Several laws have been passed over the years to protect the rights of people, but discrimination still exists. One of the major reasons for this can be a lack of appropriate punishments and an inability of people to adapt. Only when people agree completely with what is enacted in law will we be able to end discrimination against them.
The scope of this clause is very wide. It is levelled against any State action in relation to the citizens’ rights, be it political, civil or otherwise. The prohibition of discrimination on grounds such as religion or caste identities does not deny the pluralism of Indian culture but rather preserves it.
Religion
Article 15(1) ensures that religion shall not be the ground for any disqualification or discrimination in any public matter. In State of Rajasthan v. Pratap Singh (1960), an order under Section 15 of the Police Act 1861 was under question, which declared certain areas as ‘disturbed areas’ and made the inhabitants of those areas bear the cost of posting additional police. It was held that the provision violates Article 15(1) insofar as it exempts the ‘Harijan’ and ‘Muslim’ inhabitants of those areas from such liability, without assigning any reason for the exemption.
In Danial Latifi v. Union of India (2001), the Apex court upheld the validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, holding that the liability of the husband to provide “reasonable and fair provision and maintenance” under Section 3(1)(a) of the Act is not limited to the exact period. If it is permitted to be so limited, then the Act would violate Article 15 as it excludes the Muslim women alone on the basis of their religion from getting maintenance in reasonable provision from their divorced husband.
Race
Due to the vast geographical diversity in India from north to south and from east to west, certain regions of the country face discrimination based on their race or ethnicity. The first step towards abolishing racial discrimination was taken by the passing of the Criminal Law (Removal of Racial Discrimination) Act 1949 on the eve of the commencement of the Constitution. By this Act, the privileges which were enjoyed by the Europeans and Americans under the British regime, relating to matters of criminal law and procedure, were taken away.
In Sanghar Umar Ramval v. State of Saurashtra (1952), a law of Saurashtra was under consideration which restricted the movement of certain communities by insisting on their reporting to the police daily. It was held to be invalid because it was a discrimination based on race.
Caste
The word ‘caste’ is not an indigenous Indian term. It comes from the Portuguese word ‘casta’ which has various meanings. In the Indian context, it may be taken to mean a ‘Jati’ i.e., a group having a common name, common origin, hereditary membership and which is linked to one or more traditional occupations. It imposes certain obligations and restrictions on its members in matters of social intercourse and demonstrates having a more or less determinate position in a hierarchical scale of ranks. In Ashok Kumar Thakur v. Union of India (2008), it was held that ‘caste’ is often used interchangeably with the term ‘class’ and it can be called one of the basic units in the social stratification.
In Balaji v. State of Mysore (1963), it was held that where the persons in whose favour a discrimination is made as to belonging to the backward classes under clause 4 of Article 15, the discrimination will be void if it is solely based on caste consideration and not on economic or social backwardness. Moreover, in Rajendran v. State of Madras (1968), it was held that if the members of the caste as a whole were socially and educationally backward, then the reservation in favour of a caste under Article 15(4) would not be unconstitutional.
Gender
The Article guarantees that the State shall not discriminate between citizens only on the grounds of sex while simultaneously retaining an exception in Article 15(3) to enable the State to make ‘special provisions’ for women. It is important to note that neither a male nor a female can be discriminated against, as per the general law under Article 15(1). In the case of Rani Raj Rajeshwari v. State of UP (1954), a provision under the UP Courts of Wards Act (1879) was under question wherein, a male proprietor could be declared incapable of managing the property on five grounds mentioned therein. Moreover, he was also given an opportunity of showing cause as to why such a declaration should not be made, while a female proprietor could be declared incapable of managing her property on any ground, and there was no opportunity to even show cause. This provision was held to be discriminatory.
In Navtej Singh Johar v. Union of India (2018), Justice DY Chandrachud noted that Article 15 prohibits discrimination, direct as well as indirect, which is founded on a stereotypical understanding of the role of sex. It was observed that the usage of the word ‘sex’ in Article 15(1) encapsulates stereotypes that are based on gender. It was observed that sexual orientation is also covered within the meaning of ‘sex’ in Article 15(1) because (i) non-heterosexual relationships question the male-female binary and gendered roles that are attached to them; and (ii) discrimination based on sexual orientation indirectly discriminates based on gender stereotypes, which are prohibited by Article 15. Therefore, a law that directly or indirectly discriminates against an individual based on sexual orientation is constitutionally suspect. It was also pointed out that the common thread that runs through the grounds mentioned in Article 15 is that they impact the personal autonomy of an individual.
Place of birth
This ground in effect declares ‘provincialism’ to be unlawful. It says that in no public matter, there can be discrimination by any authority against a citizen of India on grounds of his birth in any particular part of India. In State v. Husein (1951), Section 27(2A) of The Bombay Police Act (1951) was held to be violative of Article 15(1) and thus void on the ground that it discriminates between persons born in Greater Bombay and those born outside Greater Bombay.
Clause 2 of Article 15 of the Indian Constitution
Under Article 15(2), it is prohibited for an Indian citizen to discriminate against another Indian citizen on the grounds outlined in Clause (1). Article 15(2)(a) provides that citizens should not be prevented from accessing public places, such as shops, restaurants, hotels or any other place which is open to the general public solely because of their religion, race, caste, gender, place of birth, or any other similar basis.
Article 15(2)(b) states that no individual can restrict another individual on the basis of religion, race, caste, gender, or place of birth from using septic tanks, wells, roads, or any other public facility maintained by the state funds or specifically designated for public use. This provision explains how discrimination should be prevented instead of being practiced. Any discrimination mentioned above shall be prohibited and unlawful. It is illegal and unjust to restrict or prevent access to a public place established by the state exclusively for public use.
Clause (2) of the present Article is levelled not only against the State but also against the private individuals who may be in control of the public places mentioned in the clause. It is worth noting that Article 15(2) is not self-executing, i.e., the provision will remain nugatory unless legislation is made in order to make it operative. Importantly, the Protection of Civil Rights Act 1955 has made a violation of Article 15(2) punishable only if exclusion from such places by a private individual is committed on the ground of untouchability. Thus, it is unknown what will happen if a citizen is excluded on the grounds of his race, caste or sex from using a well dedicated to the public by another private person. Moreover, an action under Article 32 is also difficult to succeed because the Apex Court has held that remedy is only against State action and not against private individuals.
Clause 3 of Article 15 of the Indian Constitution
Article 15(3) provides that the state may continue to make laws that provide special provisions for women and children. In Yusuf Abdul Aziz v. State of Bombay (1954), an adultery charge was filed against the appellant under Section 497 of the Indian Penal Code, 1860. In this case, the main issue was to determine whether Section 497 of the Indian Penal Code, 1860, is in contradiction with Articles 14 and 15 or not. This case presented the argument that Section 497 of the Indian Penal Code, 1860, dictates that adultery can only be committed by men and that women cannot even be punished as abettors. As a result of this argument, there was a contradiction with regard to whether this was in violation of Article 15, which prohibits discrimination based on gender. However, it was further stated that Clause (3) of Article 15 clearly states that nothing contained in Article 15 limits the state’s ability to make special provisions for women and children.
Additionally, it was argued that Article 15(3) should not shield women from the threat or commission of crimes. Additionally, in this case, the appellant was not even a citizen of India. Thus, the appellant, in this case, could not invoke Articles 14 and 15 because the fundamental rights can only be granted to Indian citizens. Therefore, the appeal was dismissed.
Further, in Paramjit Singh v. State of Punjab (2009), the petitioner was elected as a Panch for a seat that was reserved exclusively for the women of Scheduled Castes. The petitioner challenged the election of respondent number 5 as Sarpanch, on the grounds that she was not eligible to contest for the elections of Sarpanch which were reserved for the SCs and not SCs (women), because the respondent was elected as Panch for Gram Panchayat only against the reserved seat for SCs (women). It was ruled that, if the seat of the Sarpanch for a village was reserved for Scheduled Castes, then both men and women belonging to those categories could stand for election for the Sarpanch’s post because the eligibility was basically being a Scheduled Caste and representing the constituency as Panch.
This clause is in the nature of an exception to clause (1) and provides that notwithstanding clause (1), it would be permissible for the State to make “special provision for women and children”. This exception is not confined to beneficial provisions only and any special provision that the State considers necessary in the interest of women, whatever its nature may be, would be valid under this clause. Thus, Article 15(3) can be considered a charter for affirmative action in favour of women and children.
In Govt. of A.P. v. P.B. Vijaykumar (1995), it was held that Article 15(3) also sustains reservation for women because it is a special provision to support women with a view of promoting equalisation of their status. In this case, a provision relating to the Andhra Pradesh State and Subordinate Service Rule, 1996 was under question which provided that in cases where women and men are equally suited, preference is to be given to the women, ‘other things being equal’ in order to select for direct recruitment to an extent of at least 30% of certain specified posts.
National Commission for Women – By the National Commission for Women Act 1990, the Indian Government has set up a Commission to examine and report on “all matters relating to the safeguards provided for women under the Constitution and other laws”, including suggestions for improving the existing safeguards.
Special provision for Women and Children
The thought of this legislation being carte blanche (complete freedom to act as one wishes) to impose differential benefits ostensibly to the advantage of women at the cost of burdening men may ponder in your mind. But it is justified as it compensates for the early injustice met by women and children at the hands of a male-dominated society. Right to free and compulsory education for children under the age of 14 years, Section 56 of the CPC 1908, the Maternity Benefit (Amendment) Act 2017, etc. are some of the best examples of such provisions.
50% of the candidates to be selected shall be from the Science stream,
50% from the Arts stream,
further 50% would be female candidates,
And the other 50% would be male candidates.
This reservation format was contended to be arbitrary and violative of Article 15. The Apex Court held that the reservation format introduced was not warranted by the provisions of the Indian Constitution, being over and above the constitutional reservations in favour of backward classes.
Whereas in Union of India v. K.P. Prabhakaran (1997), the railway administration took the decision to appoint enquiry cum reservation clerks in four metropolitan cities, i.e., Mumbai, Delhi, Kolkata, and Chennai. The decision stated that the post would be held by women only. The court rejected the contention of the government, urging that this provision is protected under Article 15(3). It said that Article 15(3) cannot be read as a provision or as an exception to what is guaranteed underArticle 16(1)(2).
These cases clearly explain the applicability of the phrase ‘Special provisions for women and children’ in matters ranging from reservation to education and employability. But what if there are laws that differentiate or prefer women over men? Can it be called discrimination?
In the case of Girdhar v. State (1953), the petitioner was convicted underSections 342and 354 of the Indian Penal Code. The petitioner claimed that, as there are no provisions relating to assault against men with the intention to outrage his modesty, providing such laws for women is discriminatory. Section 354 is contrary to Article 15(1). The petition was dismissed, stating that the law was in consonance withArticle 15(3).
In Choki v. The State of Rajasthan (1957), Mt. Choki and her husband conspired and murdered their child, the application for bail was presented on the plea that she was an imprisoned woman, with no one to look after her young son. The judge rejected the application saying that there were no extenuating circumstances and the Constitution has no provisions under which leniency could be shown to women on account of their sex. The same was challenged before the Supreme Court.
It was held that Article 15(3) talks about special provisions for women and children. And under the light of this provision, Mt. Choki was granted bail as she was a woman and there is a young child dependent on her; thus, it became necessary for the state to protect the rights of the child.
Women and sexual harassment under Clause 3 of Article 15 of the Indian Constitution
Clause 3 of Article 15 also allows the government to frame special laws regarding the protection of women and the abolition of sexual harassment. Sexual harassment is a clear violation of the fundamental rights of equality guaranteed underArticle 14(2)and Article 15(3). The sexual harassment of women that had become a frequent story of everyday newspapers was dealt with by the Supreme court in the famous Vishaka & Ors v. State Of Rajasthan (1997) and this case led to the formulation of what we call as the Vishakha guidelines.
Clause 4 of Article 15 of the Indian Constitution
Article 15(4) stipulates that nothing in Article 15 or Article 29(2)prevents the state from creating special provisions for socially and educationally backward classes of citizens, or the STs/SCs. There were two major instances that motivated the inclusion of such a clause in Article 15. First, in the State Of Madras v. Srimathi Champakam(1951), it was the government of Madras that issued an order setting out how seats would be allocated in medical and engineering colleges based on a student’s community and caste. Upon examination, it was determined that the order violated Clause (1) of Article 15 which stated that seats were allotted based on castes of students and not merit. The seven-judge bench then overturned this order that allotted seats based on caste and not merit.
Secondly, in Jagwant Kaur v. State of Maharashtra(1952), the construction of a colony solely for Harijans was considered to be violative of Article 15(1). Clause (4) under Article 15 was thus introduced for the purpose of helping the socially and educationally disadvantaged citizens without violating any other provisions.
Furthermore, Article 29(2) [which is also mentioned under Article 15(4)] indicates that no citizen of India is discriminated against when applying for admission to a state-run educational institution or receiving financial aid out of state funds based on their religion, caste, race, or language. Therefore, Article 15(4) is not an exception but rather a special provision for socio-economically and educationally backward sections of society.
It was held by the Supreme Court in A. Periakaruppan v. State of Tamil Nadu(1971)that classifying socially and educationally backward classes on the basis of caste was in violation of Article 15(4). According to the Court, it was, however, necessary for the conditions of such a class of people to change, as that was the main reason for providing them with a reservation. In Balaji v. State of Mysore(1963), the Mysore Government issued an order and decided to provide 68% reservation for students belonging to backward classes for their admissions in medical and engineering colleges. The government left only 32% of reservations for students getting admission on merit. Because of this reservation, students with higher marks than those in the reserved category failed to obtain a seat. In the opinion of the Court, the categorisation of backward and even more backward classes was not justified under Article 15(4). In order to be considered ‘backward’, both socially and educationally backward can be included. Clause (4) of Article 15 does not talk about caste but class. Additionally, the Court stated that reserving 68% of seats in medical and engineering schools would constitute constitutional fraud, as Clause (4) of Article 15 prohibits exclusive provisions for backward classes. Therefore, reservations could not exceed 50%.
The Supreme Court in State of AP v. USV Balaram(1972)held that caste should not be a determining factor in whether a person belongs to a backward class. The backward class shall be defined as an entire caste that is both socially and academically backward. Further, the Supreme Court stated that in the event a backward class improves educationally and socially to such an extent that it no longer requires special aid from the state, the list of backward classes will automatically be updated.
In the State of UP v. Pradeep Tandon(1974), the Apex Court held that providing reserved seats to students who live in rural areas was unconstitutional. It cannot be justified under Clause (4) of Article 15. In this case, the state of Uttar Pradesh was providing reservations in medical colleges to students from rural areas, hilly regions, and students from Uttarakhand. According to the Supreme Court, reservations for students from hill regions and Uttarakhand were valid since the people from these areas are socially and educationally backwards due to a lack of awareness and inadequate facilities for education. The Court stated that the rural area does not represent a backward social or educational status, and poverty does not equate to backwardness in rural areas.
Clause (4) provides for ‘special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes’. Article 15(4) was inserted by the Constitution (First Amendment) Actin the year 1951. The amendment was introduced in order to enable the government to make special provisions for backward classes. The special provision may be by way of reservation of seats in public educational institutions. This amendment brings Article 15 and Article 29 in line with Articles 16(4), 46 and 340.
This clause strengthens the concept of promoting the socio-economic empowerment of the disadvantaged. Social equality is realised through the facilities and opportunities given to them to live with dignity and equal status in society. Economic equality also gives empowerment as a measure to improve excellence in every walk of life. This being the objective, what is required to be kept in mind while adjudging the constitutionality of the scheme/rule of reservation is the equality and adequacy of representations as per the percentage prescribed by the rules or administrative instructions.
Clause 5 of Article 15 of the Indian Constitution
Article 15(5) states that nothing in Article 15 or Article 19(1)(g)prevents the government from making special legal provisions to improve the lives of socially and educationally backward citizens, as well as those from Scheduled Castes and Scheduled Tribes. In some cases, special provisions may apply to the admission of backward classes, SCs, and STs in educational institutions, either private or public, with or without state funding, except for those minorities identified in Article 30(1). Under Article 19(1)(g) of the Indian Constitution, every citizen of the country is free to follow any profession, trade, business, or occupation of their choice. There is a provision in Article 30 that expresses the right of every minority in India to establish and administer schools of their choice, regardless of whether the minority is religious or linguistic. The Supreme Court decided that Article 15, Clause 5, did not violate Article 14 of the Constitution. Indian citizens are guaranteed equality before the law and equal protection within the territory of the country under Article 14.
This clause was inserted by virtue of the Constitution (Ninety-Third Amendment) Act 2005. The constitutionality of this amendment was challenged in the Ashok Kumar Thakur case (supra), and the Apex Court upheld the amendment so far as it relates to the State maintained institution and aided educational institutions. It was further declared that backward classes falling under the “creamy layer” would not benefit under the amendment, and the state was directed to remove the “creamy layer” backward classes from the ambit of Article 15(5).
It was also observed that the classification on the basis of caste in the long run has the tendency of inherently becoming pernicious, and hence the test of reasonableness has to be applied. It was held that when the object is the elimination of castes and a society free from discrimination based on caste, judicial review within permissible limits can’t be ruled out.
Clause 6 of Article 15 of the Indian Constitution
In 2019, the Parliament enacted the Constitution (One Hundred and Third Amendment) Act, which inserted Clause 6 in Article 15, enabling the State to make special provisions for the advancement of any economically weaker section of citizens, including reservations in educational institutions. It states that such reservations can be made in any educational institution, including both aided and unaided private institutions, except minority educational institutions covered under Article 30(1). It further states that the upper limit of EWS reservations will be 10%.
In the case of Janhit Abhiyan v. Union of India (2022), the Supreme Court, with a 3-2 majority, upheld the 103rd Constitutional Amendment providing EWS reservation. With this, the Court extended the net of reservation benefits to include solely economic backwardness.
Affirmative action
“Affirmative Action” is a phrase that refers to attempts to bring members of underrepresented groups, usually groups that have suffered discrimination, into a higher degree of participation in some beneficial programme. Affirmative action includes some kind of preferential treatment. Another term often associated with affirmative action is “reverse discrimination” which means “a difference in treatment that reverses the pattern of earlier discrimination”.
The principle of affirmative action, also called reverse discrimination, was established and general guidance is provided in Article 46 of the Indian Constitution under Chapter IV (Directive Principles of State Policy). Article 46 directs the State to promote the educational and economic interests of the weaker section of the people with special care, in particular the SC and ST. Moreover, it directs the state to protect them from social injustice and all kinds of exploitation.
The ruling of the Hon’ble Supreme Court in the Champakam Dorairajan case (supra) as discussed above, was reversed by the Constitutional First Amendment of 1951. Regarding ‘affirmative action’, it was held in the case of Indira Sawhney v. Union of India (1992) that, among others, the concept of equality before the law contemplates minimizing inequalities in income, status, facilities and opportunities, not only amongst individuals but also amongst groups of people, securing adequate means of livelihood for its citizens and ensuring the constitutional direction as given in Article 46. Thus, to bring about equality among the unequal, it is necessary to adopt positive measures to abolish inequality. The equalising measures will have to be the same tools by which inequality was introduced and perpetuated. Otherwise, equalisation will not be for the unequal. It was further held that the very concept of equality implies recourse to valid classification for preferences in favour of the disadvantaged classes of citizens to improve their condition, so as to enable them to raise themselves to positions of equality with the more fortunate classes of citizens.
Reservation
On research, we find that Article 15 Clauses (3), (4), and (5) themselves stand as an exception to Article 15 Clauses (1) and (2). Article 15 Clauses (3), (4), and (5) state that the legislature is free to formulate special provisions:
For women and children,
For the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes,
Make provision relating to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions.
Though being the exception to the legislation that forbids discrimination on grounds of sex and caste, this does not come under discrimination. Rather, the term ‘Protective Discrimination’ (also known as Positive Discrimination) is used by the legislators to justify reservation and is defined as the policy of providing an equal platform to the underprivileged and suppressed classes and to lift their status in the society. This system of reservation works on the principles of intelligible differentia (difference capable of being understood).
You might think that, though this theory helps resolve problems of social inequality, what about the sensitive jobs requiring a greater skill set (the medical field, the army, etc.)? Should reservations be allowed in those sectors? Isn’t it wise to keep such fields outside the scope of reservation?
Reservation in Medical Colleges
The thought of not allowing reservations in certain sensitive areas of practice would cause the sector to be monopolized by the privileged classes. Reasoning doesn’t stand on the factor of skills, it stands on the factor of circumstances.
Let us take an example, imagine Ramu is a boy of the underprivileged class whose ancestors and parents have been deprived of education due to discrimination from the upper classes. Ramu has no one in the family to guide him, even then he appeared in medical exams; whereas another boy Vicky, belonging to the upper class, has parents who are well qualified and have been in elite professions. Vicky was constantly guided and mentored by his parents and he also appeared in the exam. Even in such a hypothetical story, our conscience explains that there must be some provisions to place Ramu on equal footing with Vicky to allow him to compete fairly.
In Ajay Kumar v. State of Bihar (2019), the issue was raised regarding the permissibility of providing reservation under Article 15(4) in postgraduate medical courses. The contentions raised by the appellant were that Article 15(4) neither speaks nor permits reservation in educational institutions. While certain preferences and concessions can be given, reservation of seats is beyond the limits of clause (4) of Article 15 of the Constitution of India. The appeal was rejected by the court as special provisions also include reservation provisions and not just preferences and concessions.
On the basis of domicile
After we comprehend the above provisions, the concept of reservation might seem fairer but reservation on the basis of domicile still remains as a pricking concept. What allows the state to formulate laws that differentiate individuals on the basis of domicile, and what needful purpose does this kind of reservation serve?
As we find out, in India the preferential policy is of two types:
The first is to impart special benefits to the socially and educationally backward classes, scheduled classes and scheduled tribes.
The second is to provide special benefits to the local ethical groups of the state against the migrants from the other states.
This provision does not count as discrimination under the purview of Article 15as reservation on the basis of domicile is not one of the grounds of Article 15. Article 15 defines “place of birth” as a ground of discrimination but reservations based on domicile generally fall under “place of residence” which is outside the bounds of “place of birth”. The place of birth and place of residence can be different for a single individual.
Reservation within Reservation
The concept of reservation within the reservation is a condition where reservation is provided to a particular class which is already under a reservation category. For example, A man belonging to a particular community of Schedule castes is entitled to reservation for SCs but what if the community that he dwells from is more underprivileged as compared to the other communities of the SCs category?
Is it justified to make them stand on par with others? Thus the concept of reservation within reservation emerged to uplift those underprivileged communities of the reserved categories. Current examples of such reservations are the Maratha reservation in Maharashtra which already falls under the OBC reservation in Maharashtra, the Jat reservation demands in Haryana, and the 7% reservation of Madiga community under SCs reservation.
Area-wise reservation : Article 371
There are also some special provisions for specific states. There are certain articles in the Constitution of India which provide for special state provisions and allow for the formulation of the area-wise reservation to provide opportunities and facilities for the local people of the state in the matters of public employment and education, and different provisions might be for different parts of the state.
The following table mentions Articles of the Constitution which favour for ‘special provisions’ for different states:
Special provision for the advancement of backward class : Article 15(4) of the Indian Constitution
Coming onto the next clause, i.e.Clause (4) of Article 15 of the Indian Constitution. It allows the state to enact laws and provisions relating to the advancement of socially and educationally backward classes and the scheduled castes and scheduled tribes.
Is Article 15(4) a Fundamental Right
There is no doubt that Article 15(4) belongs to Part III of the Constitution, which contains fundamental rights. However, all of the provisions in Part III do not constitute a fundamental right. Some provisions are merely descriptive and the other provisions are concerned with the effects of fundamental rights on the existing or future laws. There are also provisions for enforcement and implementation of the fundamental rights, in addition to those that provide exceptions to the fundamental rights. It is because of this variety of provisions that the validity of Article 15(4) continues to be questioned. This article falls under the ‘Right to Equality’ which consists of five Articles, i.e., Articles 14 to 18.
In Article 14, the state cannot deny equality to anyone or deny them equal protection of the law. On the other hand, all Indian citizens have equal access to public sector employment under Article 16 of the Indian Constitution. Article 16(1)of the Constitution states that all citizens shall be given equal opportunity to be employed or appointed to any office under the state. It only applies to employment and offices held by the government. State officials may still determine the requirements for the recruitment of government employees. Under Article 17, untouchability is outlawed and punitive measures are imposed. According to Article 18, titles are abolished, and their conferral and acceptance by individuals are prohibited.
On a plain reading of Article 15, one is almost certain to conclude that paragraph (4) constitutes an exception to all the other provisions of that article as well as to paragraph (2) of Article 29. As a result, Article 15(4) permits what Article 29(2)prohibits. As such, Article 15 pertains to the right to equality. This right, when viewed within the context of Article 14, is not the right to uniform or identical treatment. A person has the right to be treated equally with others. In order to determine if such discriminatory practices are compatible with the right to equality, different tests have been devised and used from time to time, such as the reasonable classification, suspicious classification, or classification that lies between the two. It appears that they have not always been able to offer adequate explanations, particularly when it comes to affirmative action or positive discrimination.
Ronald Dworkin has provided an all-inclusive and satisfactory test in this regardin his differentiation between the right to equal treatment and the right to be treated as equal. He believes that the latter right is a fundamental right, whereas the former is merely a derivative right. Equal treatment implies equal respect and concern, while equal treatment means essentially the same treatment for all. But a right to equal treatment is neither feasible nor compatible with identical treatment. An equal concern is therefore essential to the right to equality. Insofar as that concern exists, differences in treatment are appropriate and correspond to a right to equality.
There are some instances when different treatment is compatible with the right to equality. It is only the differences in treatment that are based on differences in concern that violate this right. So, for example, separate treatment on the basis of race, religion, or caste is not inherently unethical as long as respect or concern is shown to everyone regardless of race, religion, or caste. The only time it becomes bad is when it is based on disrespect, contempt or prejudice towards a race, religion or caste. Article 15 prohibits only these kinds of treatment and not every kind of difference of treatment based on the location of birth, race, or caste. Likewise, the article explicitly mentions ‘discriminate against’. Regardless of their religion, race, caste, sex or place of birth, the state may treat them differently, but it may not discriminate against them in these ways. Discrimination is only committed when a person’s religion, race, caste, sex, or place of birth is used as a basis for disrespect, contempt, or prejudice because of a difference in treatment. The difference between treatment on any of these grounds, if not based on disrespect, contempt, or discrimination, will not be discriminatory and, therefore, will not be prohibited by Article 15(1). This rule also applies to Article 29(2).
Therefore, Articles 15(1) and 29(2) prohibit discrimination, prejudicial or condescending treatment based on the grounds mentioned therein. There are special provisions in Article 15(4) of the Constitution regarding the advancement of socially and educationally backward groups or of the Scheduled Castes and Scheduled Tribes. A provision intended to advance any socially and educationally backward class, or to advance SCs and STs, cannot be defined in terms of prejudice, contempt, or insult towards any forward-looking group.
Therefore, Article 15(4) has a distinct scope and function from Articles 15(1) and 29(2). In no way does it overlap with them or diverge from them. Article 15(4), like Articles 15(1) and 29(2), is intended to ensure or promote equality. It is only the latter that prohibits the state from making discriminatory decisions, while the former requires the state to take appropriate steps to eliminate such discrimination. As a result, the Constitution-makers not only envision equity to be achieved by judicial interpretation, but they have also provided a way to achieve it by virtue of Article 15(4) of the Constitution. Therefore, Article 15(4) is equally recognised as a fundamental right. The interpretation of Article 15(4) in relation to Articles 15(1) and 29(2) emphasizes that one does not have to rely on the technicalities, including the non-obstante clause, to justify its existence.
The Amendment
The Mandal Commission Report allowed half of the seats in educational and service matters to Scheduled Tribes, Scheduled Castes, and OBCs, who together constituted around 70% of the total Indian population. This was followed by the judgement given by the Supreme Court of India in the case of Indra Sawhney v. Union of India (1992). As a result of this move, their status improved significantly.
Consequently, it became incumbent upon the legislature to devise policies to improve the economic situation of those belonging to the ‘other category’. Due to this, the legislature passed the Constitution (103rd Amendment) Act, 2019 to give economic backward sections a 10% reservation (as discussed above) in educational and employment institutions in the general category. This amendment inserted Clause (6) to Article 15 and Clause (6) to Article 16 of the Constitution.
The Amendment Act was accused of violating the Indian Constitution’s basic structure. However, it should be noted that all Constitutional provisions are essential, but all of them do not hold the same value. A constitutional amendment may be made so long as it does not alter the basic structure and foundation of the Constitution. In 1973, the term basic structure was first used in Sajjan Singh v. State of Rajasthan(1964), when it was stated as follows:
It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368?
All constitutional amendments since the Kesavananda Bharati case have been tested against this principle and those which adversely affect or destroy the wider principles of the Constitution such as democracy, secularism, equality, or republicanism or alter the Constitution’s identity were considered as bad. The M. Nagaraj v. Union of India(2006) case established a twin test which included the width test and the identity test. These tests must be satisfied in order to determine whether an amendment is valid or not. Essentially, the width test sought to determine the impact an amendment would have on the Constitution and, indirectly, on its core principles. Accordingly, the scope of effect determined the legitimate scope/width of the amendment power, and it also contemplated all of the ramifications of the amendment process to determine if the ‘basic structure’ of the Constitution was threatened. However, the identity test asked whether the Constitution’s identity would remain the same after the amendment.
The Government’s viewpoint
According to Prime Minister Narendra Modi, the act was a landmark event in the history of the nation and a potent measure that ensures justice for all sections of society. Mr Arun Jaitley (Ex-Minister of Finance and Corporate Affairs) explained the reasoning for the 10% quota and said that if two individuals have different backgrounds due to their birth or economic circumstances, they, therefore, could not be treated equally. Unequals cannot be treated equally, he claimed. Moreover, he stated that the Supreme Court’s reservation cap of 50% applied only to caste-based reservations, while the Economically Weaker Section reservation was not affected by it.
According to Thaawarchand Gehlot (Ex-Union Social Justice and Empowerment Minister), similar state laws for the reservation of economically weaker sections of the community were quashed by the courts since the Constitution did not include the concept of economic reservation. Now that the law has been brought into the Constitution by making necessary provisions, the same could not be struck down by the Supreme Court if challenged.
Socially and educationally backward classes
The phrase “socially and educationally backward classes” under Article 15(4) refers to underprivileged classes of people who have faced discrimination and prejudice from the privileged class. This category includes the class of people who belong to backward classes in society but are not covered under SCs or STs. OBCs have been included under this phrase of socially and educationally backward classes as a category for reservation.
The limit of reservation
The Supreme Court of India has put up a ceiling limit to the total percentage of reservations that can be provided by the government in Indira Sawhney v. Union of India (1993). In this case, 27% reservation for the ‘Other Backward Classes’ was introduced. The Supreme Court of India put up a limit of 50% as the total percentage of reservations as it was reasoned that allowing the limit to exceed would deprive others of their right to equality. The Apex Court also provided guidelines for exceeding the limit of reservation under extraordinary situations.
Reservation of more than fifty per cent
There is an upper limit of 50% on the total reservation, but as it was allowed to exceed under extraordinary circumstances. There are 4 states which have breached that limit of 50%:
Tamil Nadu has 69% reservation with 50% reservation for OBCs;
Maharashtra has 52%;
Telangana has 62%;
Haryana has 67%;
It is done under the extraordinary need for upliftment of certain backward classes.
Recent same-sex marriage judgement
In the recent case of Supriyo@Supriya Chakraborty & Anr. v. Union of India (2023), the petitioners sought that the Special Marriage Act, 1954, which provides for a civil marriage of couples who cannot marry under their personal laws, should be interpreted as gender-neutral so that the same-sex couples can be allowed to marry under it. They argued that the 1954 Act violated Articles 14, 15, 19, 21 and 25 by not allowing a marriage between the same-sex or LBGTQIA+ couples, and sought the words “husband” and “wife” as well as other gender-specific terms to be substituted by the word “party” or “spouse”.
The case was heard by a constitutional bench wherein all the five judges accepted that the time has come to end discrimination against the same-sex couples, however, they could not reach a consensus for giving the queer couples the status of a legally recognised “civil union”. The majority of three judges held that any legal status for such a union can only be facilitated through a law enacted by the Legislature itself.
Referring to the rights of LGBTQ+ persons, the rights unequivocally recognised by the Court are the right to gender identity, sexual orientation, the right to choose a partner, cohabit and to enjoy physical and mental intimacy. However, there is no unqualified right to marriage guaranteed by the Constitution, that qualifies it as a fundamental freedom.
Interestingly, CJI DY Chandrachud, while referring to Article 15 in this judgement pointed out that Article 15 identifies the grounds on the basis of which a person shall not be discriminated against, and those grounds are markers of an individual’s identity. He further said that these identities must be read in their historical as well as social context instead of reading them through the narrow lens of ascription. Nevertheless, the marriage rights of the queer persons could be consented upon by the judges.
Interplay of Articles 14, 15 and 16 of the Indian Constitution
The three Articles together form part of the same constitutional guarantee of equality and thus, supplement each other. While Article 14 is available to all persons, Article 15 is available to citizens only. Moreover, Article 14 guarantees the general right of equality, while Article 15 and Article 16 are instances of the same right in favour of citizens in some special circumstances.
Further, Article 15 is more general in terms than Article 16, the latter being confined to matters relating to employment or appointment to an office under the State. It is also worth noting that Article 16 mentions ‘descent’ and ‘residence’ as additional prohibited grounds of discrimination.
Importantly, Article 14, which guarantees equality before the law would by itself, without any provision in the Constitution, be enough to validate equalising measures. However, to bring about equality among the unequal, it is necessary to adopt positive measures to abolish inequality. The Founders of the Constitution thought it advisable to incorporate other provisions to provide for the amelioration of all aspects of the problem. In Sourabh Choudri v. Union of India (2005), the Hon’ble Supreme Court held that Article 14 is the genus in the sense that Articles 15 and 16 provide for an exception to the equality clause.
Conclusion
Article 15 has always hurdled its way in reaching out to the ones really in need. The condition of the downtrodden has greatly improved since its inception in 1949. It provides a base for each and everything that the legislature needs to formulate provisions to promote harmony in the society. There is an extreme decline in the number of cases of atrocities against the underprivileged classes. Article 15 truly is the guardian of the downtrodden and a shield against discrimination, it has helped the Indian society to stand tall and proud despite such a huge diversity and all kinds of sexism, racism and rigid caste system and will continue to contribute to India’s unity and equality, forever.
It is important to note that Article 15 is very broad and states that there shall be no discrimination based on religion, race, caste, gender, or place of birth in any case. The term discrimination encompasses a wide range of issues and people have been discriminated against in many different ways throughout history. This article is intended to provide equal opportunities for citizens for the protection of their rights. Article 15 primarily seeks to ensure the social, economic, and educational advancement of the economically, socially, and educationally backward classes.
As a result of the existence of Article 15, the reservation has been the subject of the most significant disputes. There are a number of forms of reservation available to the weaker sections of society that cause distress to the general group of people. Reservations are not intended to divide the population into general and reserved categories, but rather to assist the disadvantaged populations of the country. Even during the colonial era and afterwards, untouchability and discrimination were very common in the early centuries preceding British colonialism. The introduction of laws intended to protect the disadvantaged class has, however, resulted in some reduction in inequality. While one cannot say that there has been a complete removal of discrimination, it is reduced. Equality is mentioned in India’s Constitution’s preamble. In Article 15, the term is to be implemented widely throughout the Indian subcontinent.
References:
Durga Das Basu, Commentary on the Constitution of India, Volume 3, 9th ed.
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This article has been written by Syeda Salma Fathima pursuing Diploma in Technology Law, Fintech Regulations and Technology Contracts and edited by Shashwat Kaushik. This article aims to shed some light on the significance of Article 21 of the Indian Constitution as a fundamental right and its implications for individual wellbeing and societal progress.
Sleep is one of the greatest gifts given to mankind by the Creator. The human body in general needs rest, and sleep provides that peace and strength as it releases stress and weakness and helps in the self-repair mechanism of the body. Sleep always brings tranquilly; adequate sleep at night promotes physical health and emotional well being and, overall, gives quality of life. Sleep, being a basic necessity for human survival, is part and parcel of life. Lack of sleep leads to a lack of concentration and thus reduces the efficiency of the individual.
Sleep, being a fundamental need, shall be protected for the well being of society, as disruption in sleep is actually disruption in the economy of the country. There will be no growth and development if the rights of the citizens go unnoticed. Great achievements are achieved only with a healthy life. The Supreme Court had broadened the ambit of Article 21’s ‘right to life and personal liberty’ by incorporating the right to sound sleep as a fundamental right.
Research on sleep deprivation
A study was published in the American Chemical Society’s Journal of Proteome Research, which noted that sleep deprivation results in the decline of the protective protein level of the brain, leading to neuronal death. Lack of sleep not only affects the mood of the individual but also has serious impacts on brain health and increases the risk of digestive disorders and neuropsychiatric disturbances.
In India, in recent years, the right to sleep has gained significant attention, particularly with the landmark case of the Re-Ramlila Maidan Incident Dt. … vs. Home Secretary and Ors. (2012), when the government imposed Section 144 of the Code of Criminal Procedure, 1973 to disperse the sleeping protesters at Ramlila Maidan during midnight, which further led to chaos. Thus, the Supreme Court has taken this case suo moto because disturbing the sleeping crowd was a violation of a fundamental right. This case has highlighted the importance of sleep and constructed a path, as the Indian Constitution has recognised the right to sleep as a fundamental right.
The right to sleep is incorporated in Part III of the Indian Constitution, which confirms and protects this fundamental right. Fundamental rights, being the basic structure of the Constitution, cannot be amended; any disturbance in fundamental rights will result in violating the basic structure of the Constitution. In India, fundamental rights are available to both citizens and even foreigners.
Background of Right to Sleep as a fundamental right
The essence of the right to sleep can be understood from Article 21. It has a very wide scope; no person shall be deprived of his life or personal liberty except according to procedures established by law.
Article 21 is the only article in the Constitution that has been interpreted a number of times in the course of time since the Constitution was framed. There are three ingredients in Article 21, i.e., life, personal liberty and procedures established by law.
The concept procedure established by law was borrowed from the American Constitution, i.e., no person shall be deprived of life and personal liberty except due process of law. But in India, we use the phrase procedure established by law on the recommendation of Alladi Krishna Swamy Ayyer, which focuses only on procedural law and arbitrary executive action.
Important case laws
Till 1978, we got protection only by arbitrary executive action; then, the Maneka Gandhi vs. Union of India (1978) case elaborated on the scope of Article 21, and a wider definition of personal liberty was then considered. Thus, the Supreme Court states that any procedural law that curtails personal liberty must pass the test of reasonability; the procedure must be fair, just and reasonable. The broad perspective of procedure established by law has incorporated many new elements under Article 21 to date, such as the right to privacy, health, education, etc., and now the right to sleep.
Article 21 cannot be suspended even during an emergency; the 44th Amendment Act of 1978 declared that no person shall be deprived of his right to life and personal liberty.
Scope of Right to Sleep
The Indian Constitution right to sleep is encompassed as a fundamental right under Article 21 right to life and personal liberty; it provides that every citizen has a right to have a decent environment, the right to live peacefully, the right to sleep at night and the right to have leisure. Nobody can infringe on others’ right to sleep in a peaceful atmosphere at night.
Although the right to sleep has been confined as a fundamental right, it is not an absolute right; it has certain restrictions. As such, Article 19, which contains different freedoms for citizens of India like freedom of speech and expression, etc., are not absolute rights; they are bound to some reasonable restrictions.
The right to sleep is an implied right; it has some restrictions like place of sleep, time of sleep, and manner of sleep. Nobody can do any unreasonable acts, like sleeping during day, sleeping naked, sleeping in public places, etc.
However, in most of the legal systems of the world, the right to sleep is not recognised as a fundamental right; instead, it is often protected indirectly through the legal framework of human rights and labour law, like the right to life, health and wellbeing. It is safeguarded as a right to health and dignity. India is the first country to even have a glance at this sensitive topic because sleep plays a vital role in the overall quality of life.
Landmark cases that led to the introduction of Right to Sleep as a fundamental right
Sayeed Maqsood Ali vs. State of Madhya Pradesh and Ors. (2001)
In this case, to some extent, the right to sleep was interpreted indirectly.
Facts of the case
Sayeed Maqsood Ali, a cardiac patient whose house was situated by the side of Sindhi Dharamshala near Dr. Batalia Eye Hospital, Ghantaghar, Jabalpur. In Dharamshala, many religious functions were held and it was also given on rent for marriages and other functions. In which loudspeakers were used to play loud music, creating disturbance to the petitioner. Various complaints were made to the police authority, as the police have the authority to take appropriate action against persons who are responsible for noise pollution but no action has been taken under Section 30 of the Police Act, 1861. So the case was filed in the Honourable High Court of Madhya Pradesh.
Issues involved in the case
The petitioner filed a complaint under Articles 226 and 227 of the Indian Constitution against respondent no. 7 for the use of loudspeakers and other public address systems that caused disturbance and affected public tranquilly under the provisions of the Noise Pollution (Regulation and Control) Rules, 2000, because that was infringing the rights of the individual by creating noise, which is impermissible in law and citizens have a right to be protected against excessive sound under Article 19(1)(a) of the Constitution.
Judgement of the Court
In 2017, the High Court held that “every citizen is entitled under Article 21 of the Constitution to live in a decent environment and has the right to sleep peacefully at night”.
Re-Ramlila Maidan Incident Dt … vs. Home Secretary And Ors. (2012)
Facts of the case
The Ramlila maidan was given on rent for a yoga training camp from June 1 to June 20, 2011, but from June 4th, Baba Ramdev started his hunger strike with the motto to support the “Anti-Corruption Bill.” Many people from different parts of India came to attend the yoga camp and unexpectedly joined the strike. There were thousands of people on strike, totally unaware of the things going on.
Issues involved in the case
When Baba Ramdev refused to negotiate with the government, the police late at night, around 12.30 am, came into action by resorting to tear gas shells and using lathis indiscriminately to disperse the sleeping protesters. The police clamped prohibitory orders under Section 144 CrPC, which authorises the executive magistrate of any state or territory to misuse an order to prohibit the assembly of four or more people in an area. This led to several injuries and even the death of one person. The Delhi Police action on the sleeping crowd amounted to a breach of their rights.
A two bench, Justice Chauhan and Justice Swatanter Kumar, decided to take up the case on a suo moto cognizance basis, based on the brutal action of the police against the sleeping crowd.
Judgement of the Court
The judgement identified the violation of Article 19(a), freedom of speech and expression and Article 19(b), the right to assemble peacefully without arms. Justice Chauhan said, “sleep is basic necessity of life, not a luxury.” If the sleep gets disturbed during odd hours, the mind gets disoriented, and it disrupts the health cycle through energy imbalance and indigestion and also affects cardiovascular health, resulting in adverse metabolic effects. The brutal use of force was wholly unjustified under Articles 19 and 21.
“To arouse a person suddenly brings about a feeling of shock and numbness; a person who is in sleep is half dead; the pressure of sudden awakening results in an almost void of sensation. Such an action therefore affects the basic life of individual.” Justice Chauhan
Quoting a US Court judgement, Justice Chauhan said every citizen has the right to leisure, to sleep, not to hear and to remain silent. Knocking doors, whether by day or night, without the authority of law amounts to a police incursion into privacy and a violation of fundamental rights.
Many countries have clamped a complete night curfew, banned on landing and taken off flights late at night. For the reason that sound sleep is associated with sound health, which is an inseparable facet of Article 21 (right to life), it is an unavoidable right of the Indian Constitution.
“It is evident that the right to privacy and the right to sleep have always been treated as fundamental rights, like the right to breathe, to eat, to drink, to blink, etc”. Justice Chauhan.
Conclusion
The supremacy of the legal system in dynamic India is continuously evolving according to the changing needs to protect and safeguard the rights of their citizens by inserting new provisions for the well -being of the nation and its people. The dimension of Article 21 is continuously moving towards new frontiers. Acknowledging sleep as a fundamental right , the Indian Constitution once again demonstrated the vision of the constitution makers and proved that the constitution is essential for ensuring the dignity of humankind.
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