The father of AI, John McCarthy, coined the term artificial intelligence in 1956. He defined it as “It is the science and engineering of making intelligent machines, especially intelligent computer programs. It is related to the similar task of using computers to understand human intelligence, but AI does not have to confine itself to methods that are biologically observable.”
The Oxford Dictionary defines artificial intelligence as “the theory and development of computer systems able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages.”
In simple words, we can say that AI is a branch of computer science that can think, understand, and give human-like responses. It is a creative, innovative, and intelligent human-made machine that acts smartly and replicates human behaviour. AI is such a powerful tool that can be used to automate tasks, improve decision-making, create new ideas, and understand information. What really makes AI so versatile is its ability to mimic human intelligence.
Revolution of AI
“The machines are coming and they will eat your job,” has been a popular refrain over the years. Over the years, with improvements in technology, this refrain has been true to an extent. Though with advancements in technology, productivity has improved, we cannot deny the fact that it has also replaced low-paid jobs with a great number of higher-paid jobs. This time, with the arrival of artificial intelligence, there are those who think it will be different.
AI seems to be the transformative technology that will fundamentally reshape economies. The influence of artificial intelligence is predicted to be as great as the Industrial Revolution. It has a lot of promises to make, not just in the legal field but in every field all over the world. AI will have a drastic effect on everyday life, comparable to the shift away from agricultural societies during the Industrial Revolution, according to a report by the McKinsey Global Institute. Researchers, economists, and even policymakers know that as AI continues to develop, it will cause massive disruption to labour markets, but they are fooling themselves if they think they have years to come up with a suitable response. In a recent World Economic Forum, Mihir Shukla, an entrepreneur, said, “People keep saying AI is coming but it is already here.”
A report by Ed Felton, Manav Raj, and Robert Seamans from Princeton University, the University of Pennsylvania, and New York University, respectively, pointed out ‘ChatGPT’ to be the most affected industry by AI and how artificial intelligence can eat up the jobs and will have a negative impact on our lives, as in the article by the New York Times headlined “ChatGPT could make these jobs obsolete: The Wolf is at the Door”. Economists at Goldman Sachs estimated that 44% of legal work could be automated. Another study suggests that 22% of lawyers’ jobs and 35% of law clerks’ jobs could be automated soon. That means automation and other new technology could eliminate as many as 800 million jobs by 2030.
Office and administrative support occupations, including secretaries, clerks, bill collectors, and office assistants, employ 1.3 million fewer workers than in 1990, according to an analysis by the Bureau of Labour Statistics. Over the years, artificial intelligence has gone through many cycles of hype, but even for sceptics, the release of OpenAI’s ChatGPT seems to mark a turning point.
From fiction to reality
From PCO (Public Call Office) to video calls, cycle to aeroplane, faxes to email, typewriters to computers, offline libraries to online databases, we have come a long way. All these things were earlier considered next to impossible, but with the human mind, anything and everything is possible. AI is nothing less than a dream that has come true. I will even say that no one has ever dreamt of what AI is doing now. Something impossible 20 years ago is now our normal routine.
DoNotPay, a legal services chatbot founded by Joshua Browder in 2015, has set up the world’s first robot lawyer powered by AI to defend a human in court in a speeding ticket case. The impact of AI will be gradual but significant. It is predicted that millions of workers will be affected, mostly white-collar and middle-class workers. Previously, machines replaced manual labour and low-skilled workers and now advances in AI will have a decent stab at people who are creative as well. Law, being a labour-intensive market, will have a major impact.
Geoffrey Hinton, the godfather and creator of artificial intelligence, termed AI ‘quite scary’ and warned it would become smarter than humans soon. He further stated that, as things are moving quite fast, we need to worry about that and take a step back. In a recent interview, Austin Carson, the founder of SeedAI, said, “If in six-months you are not completely freaked out, then I will buy you a dinner.”
All these statements by the creators of AI indicate that we ourselves are inviting danger into the world. We still possess time to think and analyse what results we are expecting from AI; will we receive the same in the future?
Future of lawyers in the age of AI
“If I was the parent of a law student, I would be concerned a bit,” says Todd Solomon, a partner at the law firm McDermott Will & Emery, based in Chicago. He added that there are already fewer opportunities for young lawyers to get trained, and adding AI to it will make the case worse. Young lawyers and freshmen are the ones who will be affected the most. Paralegal, due diligence, research and document review are typically key training ground for first-year associate lawyers, and AI-based products are already stepping in. CaseMine and CaseIQ are some of the very few examples. Though AI has already been part of the legal field (SCC, Manupatra, Casemine, CaseIQ, etc.), excessive use of anything affects growth and development.
AI is making people more dependent on technology, and this could have negative consequences in the long run. We may not see the full effects of this trend for a few years, but we are already starting to see some of the problems. For example, people who are constantly using AI-powered devices may become less creative and less independent.
The necessity of lawyers will be dramatically reduced if intelligent robots can perform fundamental legal functions, said John McGinnis and Russell Pearce.
AI is like a drug. It can be helpful in the short term, but it can also be addictive and harmful in the long term. It is important to use AI responsibly and to be aware of its potential negative impacts.
Potential implications of AI in legal domain
Automation of many activities has also replaced what was once performed by human force/workers. Though automation will not completely destroy the need for lawyers, it is considered that a large part of income and work will be generated and done by a small number of lawyers. This will eventually reduce employment among lawyers. For this not to happen, lawyers had to be extraordinary in their field. Now lawyers need to be more creative and hard working.
It is not necessary to always follow the trend. Every country should try to follow according to their nation’s requirements and needs and use their own brains before following any trend of the developed nation. We need to understand that we are still a developing nation and there are a lot of gaps and a lot of other areas that we need to tackle first.
AI can help some nations but not all. Many nations with huge populations that need labour-intensive work, such as India and Africa, will be badly affected, which will ultimately disbalance the economy.
People say AI is not something that has come now, but it has been in our lives for many years. The word is on trend these days, making people mysterious. But the key difference this time is that the owners of the new machine will gain the most benefit and enormous amounts of money from their innovation by hollowing out some sectors of the economy. But what we are not realising is that these technologies have earlier also taken jobs from many and if we continue to develop more and more such automated technology daily, it will eat up almost all of the human jobs.
Gone are the days when we waited for too long to think about implementation and to take steps. We need to pause, think and take action immediately.
Conclusion
Automation is disrupting the legal market and shifting legal work away from lawyers. William Henderson stated in one of the reports that lawyers are already being replaced in the name of a fundamental restructuring of the legal industry. And which has ultimately led lawyers to suffer the steepest job losses. Thus, from a far-sighted perspective, it looks like human intelligence cannot be replaced by artificial intelligence and in the future, it will help complement human curiosity to develop new innovations, which is just a mere dream.
AI is currently in its development stage and as the 21st century passes through rapid change, whether AI will make our lives easier or replace us completely is yet to be known.
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This article is written by Sahil Arora. This article talks about the difference between two concepts that violate or restrict the movement of a person by means of confinement, restraint, detaining, or arrest. Although these terms seem synonymous, this article will let you know the actual difference between the two.
It has been published by Rachit Garg.
Table of Contents
Introduction
Article 21 of the Indian Constitution, 1950 which guarantees protection to the life of a person, also ensures that no person is restrained, detained, or confined unlawfully. Every person has a right to live and enjoy his life freely and no one has the authority to stop him from enjoying his life unless his own rights are not affected by that enjoyment. But if somebody tries to interfere in someone’s life by detaining or confining him, it will be considered a wrongful act for which that person can be charged both under criminal law as well as under the law of torts. Apart from it, Article 19 of the Indian Constitution is also a provision that gives freedom to the people to move freely throughout the country and if someone interferes with this right, he can be punished. This interference can take various forms and two of them under which people are often confused are ‘false imprisonment’ and ‘malicious prosecution’. Although these acts are not always punishable. In many cases and branches of the law of torts like false imprisonment and malicious prosecution, the state of mind of a person is relevant to ascertain his liability. It varies from case to case as to check whether a specific wrongful act was done maliciously or intentionally. These terms seem to be similar but have a huge difference, which will be discussed in detail in this article.
Meaning of false imprisonment and malicious prosecution
Meaning of false imprisonment
Breaking this term into two parts, the term “false” means ‘wrong or unlawful’ and “imprisonment” means ‘confinement or detention’. Thus, the term ‘false imprisonment’, refers to the unlawful and intentional confinement or restraint of an individual against their will and without any lawful justification or authority.
According to the Black’s Law Dictionary, “false imprisonment is the restraint of a person in a bounded area without justification or consent. False imprisonment can apply to private or governmental detention. It is punishable under criminal law and tort law.”
In Winfield’s Tort Law, false imprisonment is elucidated as the deliberate and direct obstruction of an individual’s freedom of movement without a valid legal excuse.
In simple terms, it means the deprivation of a person’s freedom of movement, either by putting fear or coercion or through some physical obstructions. From a legal point of view, Section 339 of the Indian Penal Code (IPC), 1860, which talks about ‘wrongful restraint’, and Section 340 of the IPC, which talks about ‘wrongful confinement’ are also considered part of false imprisonment.
Section 339 basically revolves around two points that are, first, there should be voluntary obstruction of a person and second, the obstruction must be such as to prevent the person from proceeding in any direction in which he has a right to proceed. The obstruction can be caused either by physical force or by the use of threats, thus, the method used for the obstruction is immaterial. The restraint here implies abridgment of the liberty of a person against his will but this is only partial restraint of the personal liberty of a man.
Coming to Section 340, it also revolves around two important elements that are, first, there must be wrongful restraint of a person and second, such restraint must prevent that person from proceeding beyond certain circumscribing limits. In this case, there must be a total restraint of the personal liberty of a person and not merely a partial restraint, like in case of false imprisonment, to constitute confinement. Although the time period of confinement is immaterial to constitute this offence, it becomes relevant to determine the extent of punishment.
Apart from all this, depriving an individual of their personal freedom without lawful justification, constitutes an offence for which the law not only establishes a punishment as a public crime but also offers a means for the injured party to seek compensation by means of a writ of habeas corpus, thereby securing their release from immediate confinement. Additionally, the wrongdoer may be subject to a legal suit, commonly known as an action of false imprisonment, in order to compensate the victim for the loss of time and liberty incurred as a result of the unlawful act.
Meaning of malicious prosecution
Breaking this term into two parts, the term “malice” means ‘wish or desire to hurt someone’ and “prosecution” means ‘charging somebody with a crime’.
According to Black’s Law Dictionary, “malicious prosecution is a legal proceeding that is initiated without probable cause and with harmful intent. It is also known as ‘abuse of process’.”
According to Prosser and Keeton in their book on Torts, ‘malicious prosecution’ is characterised as the pursuit or continuation of an unfounded criminal or civil lawsuit with malicious intent and without reasonable grounds, resulting in harm and injury to the plaintiff.
So, elaborating it, this means the deliberate act of commencing or continuing a civil or criminal proceeding against an individual without any probable cause and with an intention to cause harm, harassment, or inconvenience to the person who is falsely accused. Under Section 35 of the Civil Procedure Code (CPC), 1908, compensation can be claimed for this offence, and under Section 211 of the IPC, a false charge of an offence which is made with intent to injure is made an offence. Thus, these are some provisions of the law which are governed under the ambit of malicious prosecution.
Section 35 of the CPC basically talks about the general costs which are awarded to the litigant to secure him the expenses incurred by him in the litigation. It neither enables the successful party to make any profit out of it nor punishes the opposite party. The court can exercise this power even if it doesn’t have the jurisdiction to try the suit.
Elaborating the Section 211 of the IPC, it constitutes that, firstly, the accused must initiate a criminal proceeding or make a false charge, secondly, he knows that there is no legal ground for the proceeding and thirdly, he must have the intent to cause harm to the person he’s accusing. Malice and knowledge in the falsity of information furnished are essential elements of this offence. Malicious prosecution distinguishes itself from wrongful arrest and detention by placing the burden of proving the prosecutor’s lack of honesty or reasonableness on the accused individual (Dallison v. Caffery (1961) D. No. 1575).
Not only a natural person, but an artificial person, like a corporation, could be held liable for the offence of malicious prosecution. This is because even though the corporation may not have the requisite mental element for a tort requiring malice, the agents of that corporation are capable of having the same. Thus, if the act is done by the agents in the course of their employment, a corporation will be held liable for their act just like an ordinary employer.
Essential ingredients of false imprisonment and malicious prosecution
Essential ingredients of false imprisonment
Intention
The defendant to be declared guilty of this offence must wrongfully confine or restrain the plaintiff with an intention to cause harm or injury. Such an act of restraint done but without the required intention cannot be considered to be false imprisonment and thus cannot be made guilty under this offence. Although an intention to be malicious is not needed in this case.
Complete deprivation of liberty
Imprisonment of a person means restraining the liberty to move or go somewhere wherever and whenever the person wants. This restraint doesn’t need to be behind bars only. This can be at any place where the plaintiff is unable to find a way to move freely but this imprisonment should be complete, i.e., if there is at least one way by which the person can escape that place, then it will not be considered imprisonment.
Knowledge of restraint to the plaintiff
The plaintiff must show that he was unlawfully confined or restrained against his will but it is not necessary that he was also aware of the confinement or restraint to establish the claim of false imprisonment. It mainly depends upon the actions and intentions of the defendant rather than the knowledge or awareness of the plaintiff.
Time of confinement
It doesn’t matter how short or long the person is imprisoned to make him liable for the offence of false imprisonment. Although the time duration is relevant to consider the seriousness and gravity of the offence, it is also considered while calculating the amount of damages to be claimed.
Detention must be unlawful
Under certain laws, power is conferred on some officials, like police officers or officers of higher authority like the Enforcement Directorate (ED), or the Central Bureau of Investigation (CBI), etc., to imprison someone if it is found to be necessary. Thus, if a person is confined or detained in pursuance of power or in accordance with the law, then that cannot be considered false imprisonment. But contrary to this, if a person is imprisoned unlawfully, then that person, once released, can claim relief against that unlawful detention.
Examples
After a disagreement over a bill, a hotelier chose to detain a guest. Even though the guest cooperated by providing personal information, he was still kept detained. It was determined to be a case of false imprisonment.
X was working inside the godown when Y locked him from outside. Y didn’t know that X was inside it. Thus, as there was no intention on the part of Y to confine X, it cannot be considered a case of false imprisonment.
Essential ingredients of malicious prosecution
Absence of reasonable and probable cause
The onus is on the plaintiff to show that there was no probable and reasonable cause behind the imprisonment and that it was done to cause him harm or injury, either physical or mental. This has to be ascertained by the judge whether there was a reasonable cause or not, and a mere fact that the plaintiff considers its absence cannot per se be declared to be the absence of such a cause. This means it is a subjective element.
Malice in prosecution
The prosecution must be instituted by the defendant with a malicious motive or ill will. Although there’s no straight-jacket formula to label a thing as malice, it will vary from case to case to determine whether such an act of the defendant constitutes malice or not. Again, it is the plaintiff on whom the burden of proof lies to prove that there was malice in the prosecution. The malice in the act of the defendant can be determined by the conduct of the defendant itself apart from other existing factors.
Prosecution by the defendant
It is necessary for making a case of malicious prosecution that the proceedings were instituted by the defendant. This could be in several forms like a complaint, information, or any other legal instrument that starts a legal action. But a point is to keep in mind that if the complaint or like is filed by the defendant and no steps or action are taken upon that complaint, then the opposite party (plaintiff) has no right to file a case or sue the defendant for malicious prosecution.
Termination of proceedings in favour of the plaintiff
To bring a case for malicious prosecution, it is necessary that the plaintiff be acquitted of the earlier case instituted by the defendant against him. Once the plaintiff is declared not guilty, only then he can institute a suit under this offence; otherwise, if the plaintiff is held liable, he has no other option but to appeal to a higher court and get a clean chit, after which he can bring the suit against the defendant.
Plaintiff to suffer damage
Even if the plaintiff is acquitted in the case filed by the defendant, he still has a right to claim damages from the defendant. The plaintiff need not have suffered in monetary terms only; it can be psychological suffering or damage to the reputation as well. The damage must be related only to the malicious prosecution and not any remote action.
Examples
The defendant lodged a frivolous complaint against the tree cutting, despite being aware of its false nature. The court inferred malicious intention with other elements.
C filed a complaint against D for theft of his mobile phone genuinely believing that D was responsible for the theft as according to him he (C) saw D near the place of theft. But after investigation, it was found that D was not there at that time. So, even after D was acquitted, he cannot file a case for malicious prosecution because there was reasonable suspicion on the part of C and no malice.
Defences against false imprisonment and malicious prosecution
Defence against false imprisonment
Consent
A consent that is free from any sort of fraud or coercion is considered a valid defence against this offence. Thus, if the victim himself agreed to the confinement or restraint, later on, he cannot claim relief from the defendant. So, voluntary consent to false imprisonment often acts as a defence in this case.
Lawful authority
If an individual is detained, confined, or arrested under the authority of law, then that person cannot bring a case of false imprisonment, and the person or official who detained, confined, or arrested him can claim it as a valid defence. The point which is to be kept in mind while claiming this defence is that the person using it must have a legal right or authority to restrict the movement of the alleged victim.
Necessity or/and justification
If the defendant proves that it was necessary to confine the plaintiff so as to protect oneself or others or there was some other emergency situation, then it can be taken as a defence and the defendant can escape the charges of this offence of false imprisonment.
Probable cause
This element of defence is an objective one that does not rely on the crime committed by the individuals but on reliable facts or information that would prompt a reasonable person to take the necessary precautions as if they were the perpetrator.
Restriction on minor
A person who has custody of the minor or is authorized by the guardian of the minor can, for the benefit of the minor, restrain him from going outside a specific area. As this is done for the benefit of the minor, so this can be claimed as a valid defence, and no case can be made against him under this offence.
Partial restraint
A person is considered to be under false imprisonment when he is completely deprived of this liberty to move or go somewhere, but if an individual is only restrained partially, then that person cannot make a case under this because in this case he would be having enough opportunity to move or escape the place. However, some courts have still considered that partial deprivation of personal liberty is deprivation and made it fall under false imprisonment and claimed compensation.
Defence against malicious prosecution
Lack of malice or ulterior motive
One of the most essential elements of this offence is the presence of malice, but if the defendant proves that there was no malicious intention in his mind or there was a legitimate reason to believe that the legal action was justified at the time it was initiated, then the defendant could use this as a defence and escape his liability.
Lack of causation
If there is more than one individual responsible for the prosecution and the defendant shows that his actions did not cause or significantly contribute to the initiation of the legal proceedings, then this can act as a valid defence for this offence.
Statutory immunity
Just as in the case of false imprisonment, here also there are some legal provisions like Section 197 of the Code of Criminal Procedure (CrPC), 1973 or Section 132 of the Negotiable Instruments Act (NIA), 1881 which provide immunity to some people from the malicious prosecution claims. These could include public officials, witnesses, or parties who report suspected criminal activity in good faith who are protected against the claims of malicious prosecution.
Good faith
If the defendant is able to prove that his actions were carried out in good faith and that he genuinely believed in the legality of their course of action, it can undermine the allegation of malicious intent. This defence highlights the defendant’s honest belief in the guilt of the accused individual based on the evidence or information that was available at the time.
Remedies available against false imprisonment and malicious prosecution
Remedies against false imprisonment
Damages
Injury of any sort, whether physical or mental, to the plaintiff is sufficient to constitute this offence. Thus, to compensate for this injury the plaintiff can ask for damages. There are a few kinds of damages such as punitive, exemplary, aggravated as well as nominal, and the quantum of damages will depend upon the gravity of the injury. It is the judge who will decide what is just for the plaintiff. Although no amount of damages can really undo the mischief, but the only way open to the Court to uphold the rights of the plaintiff and express its disapproval of the conduct of the defendants is to award monetary compensation by way of damages. Such damages cannot be nominal, but must be substantial. (Ram Pyare Lal v. Om Parkash, ILR (1977)).
Habeas corpus
Out of the five writs provided by the Indian Constitution under Article 32 by the Supreme Court and Article 226 by the High Court, this writ of habeas corpus is the one that provides the presentation of the detainee or arrested person before the court. This writ is mainly used when a person is unlawfully detained or kept in confinement and his rights and freedoms are violated. This writ can be filed by either the plaintiff or someone else on his behalf for his release from the imprisonment.
Complaint to NHRC
As imprisonment is considered a violation of human rights, one can file a complaint with the National Human Rights Commission (NHRC). The NHRC investigates cases where there is a violation of human rights and provides justice to the individual. Apart from it, there are some self-help groups also which work on the same objective.
Remedies against malicious prosecution
Compensation
Just like the remedy in the case of false imprisonment, similar relief of compensation can be claimed against this offence also in return for the harm suffered by the plaintiff. The person who was prosecuted wrongfully can file a suit for compensation and the amount will be determined as per the level of injury he suffered.
Writ jurisdiction
The infringement of fundamental rights through this malicious or wrongful prosecution can be cured by filing appropriate writs and claiming appropriate relief. Article 32 and Article 226 of the Indian Constitution provide these remedies to the victim, which could be used against the perpetrator and in return provide some satisfaction to oneself.
Criminal law remedy
There are several provisions in the IPC and CrPC under which an unauthorised prosecution can be punished if proved. A request can be made to the appropriate government to take action against the concerned official because only acquitting the victim is not sufficient relief and the victim deserves to get complete justice.
Legal differences between false imprisonment and malicious prosecution
S. No.
BASIS
FALSEIMPRISONMENT
MALICIOUSPROSECUTION
Characteristic
There is total restraint on personal liberty without lawful justification.
There is the element of causing damage by means of an abuse of the process of court.
Actual damage
The actual damage need not be proven.
The actual damage has to be proved.
The onus of proving reasonable cause
The onus of proving the existence of probable and reasonable cause as justification lies on the defendant.
In this case, the plaintiff is to allege and prove affirmatively its non-existence.
Actionable per se
It is actionable per se.
It is not actionable per se.
Proving malice
It is not necessary to prove malice.
It is necessary to prove malice.
Mistake as defence
A mistake of fact would not be a good defence.
A mistake may be a good defence.
Presence of reasonable cause
It is not necessary that there be an absence of a reasonable or probable cause.
It must be proved that the criminal proceedings were made without reasonable and probable cause.
Landmark case laws
Landmark case laws on false imprisonment
Ishwar Das Moolrajani v. Union of India (2016)
This is a legal dispute involving Ishwar Das Moolrajani and the Union of India. The case revolves around a requirement imposed by the High Court of Rajasthan that Moolrajani submit Rs.4.5 crores as bail. Moolrajani argues that his arrest was unlawful and seeks bail through a Habeas Corpus Petition. In response, the Union of India appeals, questioning the petition’s validity and the legality of the arrest.
The Supreme Court temporarily suspends the bail condition. The Union of India argues that the case is now irrelevant, but the Supreme Court is not satisfied with their explanation for failing to pursue criminal charges against Moolrajani. As a result, the Supreme Court orders the Central Bureau of Investigation (CBI) to probe the absence of action taken against Moolrajani for alleged violations of customs laws.
In its final decision, the Supreme Court allowed Moolrajanni’s appeal, quashing the High Court’s conditions and dismissed the Union of India’s appeal and also instructed the CBI to investigate the matter further.
Bhim Singh v. State of Jammu and Kashmir (1985)
This is a landmark case in which the Supreme Court set forth clear guidelines emphasising the importance of providing immediate and sufficient compensation to individuals who have been falsely imprisoned, as this constitutes a violation of their fundamental rights.
In the year 1985, Shri Bhim Singh, who was a Member of the Legislative Assembly in Jammu & Kashmir, faced suspension from the assembly and consequent arrest while en route to a legislative session due to allegations of delivering an inflammatory speech. However, discrepancies were found in the affidavits of the police officers regarding the arrest and remand process. It became evident that Bhim Singh was not presented before the magistrate as required by law. The court determined that Bhim Singh’s constitutional rights had been violated, and he had been unlawfully detained. Although he was eventually released, the court ordered the State of Jammu and Kashmir to compensate him with Rs. 50,000 as redress for the infringement of his rights.
Sunil Batra v. Delhi Administration (1978)
In this case, the Supreme Court held that unlawful detention by prison authorities would amount to false imprisonment and would be a violation of the fundamental right to life and personal liberty.
This legal case revolves around the detention of a young advocate by the police. Initially summoned for questioning, the petitioner eventually finds himself in custody without a clear explanation. Fears about the petitioner’s safety prompt the initiation of legal proceedings, resulting in the court ordering an inquiry. Here, the delicate balance between individual rights and the needs of law enforcement is emphasised, with an emphasis on the necessity of safeguarding both. Furthermore, the court took reference reports from the National Police Commission, which shed light on problems related to unnecessary arrests. In conclusion, the court lays out the requirements for protecting the rights of arrested individuals, including the right to notify someone of their arrest and the right to consult with a lawyer. Ultimately, it underscores the importance of adhering to proper arrest procedures and respecting human rights during law enforcement activities in India.
Landmark case laws on malicious prosecution
Hussainara Khatoon v. Home Secretary, State of Bihar (1980)
In this landmark case, the Supreme Court dealt with the issue of prolonged and unjustified imprisonment. The court held that the right to a speedy trial is an essential part of the right to life and personal liberty, and the failure to provide a speedy trial could attract a claim of malicious prosecution.
In this court order, Justice Bhagwati addresses a writ petition concerning the conditions and rights of prisoners awaiting trial in jails in the state of Bihar, India. The court orders the state to provide an updated record categorizing the prisoners by their offences, distinguishing between minor and major crimes. The court emphasizes the need to relocate women under “protective custody” to welfare institutions. Additionally, it underscores the importance of offering free legal assistance to impoverished defendants and ensuring an efficient processing of bail applications. Moreover, the court expresses apprehension regarding the extended detention of under-trial prisoners and instructs the state to release those who have been held for durations exceeding their possible sentences. The order stresses the significance of establishing a comprehensive legal service program to facilitate equal access to justice and expedite trials, while underlining the state’s constitutional duty to safeguard these rights.
M. Abubaker & Ors. v. Abdul Kareem (2021)
In this case, the plaintiff was arrested and detained for over 24 hours after being falsely implicated in a criminal case. After he got acquitted, he demanded compensation for malicious prosecution against which the defendant argued that the prosecution was not malicious and that they had a reasonable cause for their actions. The court considered the evidence presented and came to the conclusion that the plaintiff was entitled for compensation for damages, including the loss of reputation and liberty.
Haryana Financial Corporation v. Jagdamba Oil Mills (2002)
The Supreme Court in this case held that an action for malicious prosecution can only be brought against a person who was directly or indirectly involved in initiating the criminal proceedings. An action cannot be filed against the state or its officials unless malice on their part is established.
Vidhyadhar Sunda v. State of Rajasthan & Ors. (2010)
In this case, the Rajasthan High Court held that in a malicious prosecution claim, the plaintiff must prove that the defendant knowingly made false statements or fabricated evidence to initiate the criminal proceedings. A mere lack of evidence against the plaintiff does not establish malice or the absence of probable cause.
Conclusion
So, after all this discussion, we can say that although both of these offences seem alike on a superficial level, if we look deeply, there are some differences. The end of both of them is a violation of the rights of individuals but there are some remedies also available which a person can use to protect himself and others from the acts of the wrongdoer. At last, as there is no direct mention of both of these offences, i.e., false imprisonment and malicious prosecution, under any law, and both of these offences have a few points of similarity also, so they both are to be understood and differentiated clearly to safeguard oneself.
Frequently asked questions (FAQs)
What is the difference between false imprisonment and malicious prosecution?
‘False imprisonment’ refers to the unlawful and intentional confinement or restraint of an individual against their will and without any lawful justification or authority and ‘malicious prosecution’ means the deliberate act of commencing or continuing a civil or criminal proceeding against an individual without any probable cause and with an intention to cause harm, harass, or inconvenience the person who is falsely accused.
Which rights are violated by the offences of false imprisonment and malicious prosecution?
These offences violate a few human rights as well as some fundamental rights of our Indian Constitution such as Article 19(1)(g) and Article 21.
What is the difference between wrongful confinement and wrongful restraint?
Wrongful confinement is the absolute restraint of personal liberty whereas wrongful restraint is only partial restraint of the personal liberty of a person.
In wrongful confinement, certain circumscribing limits are always necessary whereas in wrongful restraint, no such limits are required.
In wrongful confinement, movement in all directions is obstructed but in wrongful restraint, movement in only one or some direction is obstructed.
Wrongful confinement implies wrongful restraint but vice-versa is not correct.
Civil Procedure Limitation and Commercial Courts (9th Edition), C.K. Takwani
Indian Penal Code (22nd Edition), Prof. S.N. Mishra
Law of Torts (22nd Edition), R.K. Bangia
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Purchases are the lifeblood of business, be it trading, producing, or servicing. Any entity needs to take up the activity of purchasing seriously and sincerely with diligence. It is doubtless to say that timely purchase and purchase of quality material in the right quantity are indicative of the right and efficient management of the business. Purchases in excess of requirements or purchases of less quantity than the need affect the profit of the entity. Both situations are dangerous for regular business transactions. The purchase technique involves some compulsory steps. Purchases should be done in a manner that balances manufacture and sale.
What is purchase technique
This technique refers to the method or strategy used by businesses to acquire inventory or goods for their operations. In simple language, purchase technology means all technology owned by any of the sellers related to or used in connection with the business. It involves the process of sourcing, negotiating and procuring products or services from suppliers or vendors. Purchasing techniques are important as they aid in cost optimisation, supplier relationship management and refined, timely and tuned inventory management. Adoption of a good technique mitigates risk from many fronts, assuring the quality of the next stage of manufacture or/and sale after purchase. The strategy should comply with all requisite ethics needed in line of trade and aligned activities. To plan purchasing at the time of boom, more of the needed quantity is no doubt risky and similarly, a forward contract to procure on a future date at an advance agreed cost may result in profiteering more than the desired level or otherwise. In any case, the adoption of this technique is situational and circumstantial. One can find various types of purchasing, direct or indirect and these can be described as follows.
Types of purchasing
Bulk purchasing
Bulk purchasing refers to the buying of goods or merchandise in large quantities. The primary objective of this type of purchasing is to take advantage of economies of scale, resulting in cost savings and various advantages for businesses. This can only materialise if the need is forecasted with accuracy; otherwise, bulk purchases without immediate usage or consumption in production or trading may result in the blocking of institution funds. Any blockade like this will affect the financial stability and, ultimately, the profitability of the entity. However, bulk purchases are the appropriate means of maintaining cordial supplier relationships, as a supplier gets pleasure when any contract results in a huge sale. Secondly, bulk purchasing may enhance operational efficiency as production will continue with regularity in the huge supply of raw materials and the entity may prefer to work extra hours overtime or otherwise. But on the other hand, this requires greater inventory management, for which the entity may naturally incur some extra expenditure and this should be in mind while planning for bulk procurement.
Group purchasing
Multiple businesses or organisations come together to leverage their collective buying capacity, which results in group purchase activity. This may yield a better competitive and economical price, a good earning of a discount and nice, acceptable terms for purchase for both parties or among the parties in the contract. It thus involves forming a group or joining an existing group purchasing organisation (GPO) to pool their purchasing volumes, thereby increasing their bargaining power with suppliers and vendors. Since sales are in bulk, suppliers take keen interest in dealing with all such cases. Business wealth is thus recycled a number of times in a short span, resulting in good earnings. On the other hand, this type of purchasing saves time and effort for many in the line, with easy access to quality suppliers and enhanced networking and collaboration opportunities. By being a member of such a group, a party with low demand may also get scope to procure less quantity at the discounted cost, which would not have been possible with solo purchase activity.
Competitive bidding
It is a procurement method in which multiple suppliers or vendors submit/furnish their proposals or bids to compete for a contract or project. It involves requesting bids from potential suppliers and comparing their offers based on various criteria, such as price, quality, quantity, delivery time, and terms of supply and payment. The purpose of competitive bidding is to ensure transparency, fairness and value for money in the procurement process. Risk is largely mitigated by resorting to this type of purchase mode. It may be out of place to mention here that government organisations do accept this mode mandatorily. Various government agencies have their own mode of purchase rules, based upon which they do all such activities. Even in many states, general financial rules cover the mode of purchase. Somehow, in the name of transparency, this competitive bidding mode assists some unscrupulous few who are actively engaged in the tender process. The quoted rates they disclose include a huge bribe assisting a particular supplier to supply, from whom they get a huge kickback. This is the dark side of this purchase mode for government organisations. But if applied with genuineness, sincerity and transparency, this process of purchasing may greatly assist in getting a competitive bid at the most economical cost. But non-government organisations get the most out of this mode in terms of competitive rates.
Just-in-Time (JIT) purchase
This purchase mode involves acquiring goods or materials precisely when they are needed in the production process or to fulfil customer’s orders. The goal is to minimise inventory holding costs and reduce the risk of obsolete inventory. By closely connecting and coordinating with suppliers, businesses can ensure timely deliveries and maintain lean inventory levels. This purchase mode is particularly beneficial for businesses with fluctuating demand and limited storage space, with a focus on efficiency and cost reduction. JIT purchasing promotes streamlined processes, reduced lead times and efficient use of resources. By focusing on goods with actual need, this purchasing aids in the usage of funds for the best purpose for which they are needed and thus the blocking of funds is minimised most.
E-procurement
Electronic procurement is the process of purchasing goods, services and supplies using electronic platforms and technologies. It involves the use of digital system and internet based technologies to automate and streamline procurement activities, including requisitioning, sourcing, ordering, processing for payments, etc. This purchasing mode offers organisations a more efficient and cost effective way to manage their procurement operations compared to traditional manual methods. The advantages of this procurement are cost and time savings, enhanced transparency and visibility associated with better supplier management, and improved data analysis and reporting. The Government of India insists on mandatory e-procurement from approved E-market places, popularly called GeM (Government-e-Market). The government has mandated purchases in this mode exceeding a certain limit and in the process, all buyers and sellers have to be registered under this portal. Parties as registered purchasers may send their requisition to this portal and details of sellers available to supply the specified item are brought to the notice of the purchaser then. The purchasing party will then pay through the portal after choosing the selected seller. This type of purchase saves time and money, as no tendering is needed while the purchase is made through this mode. The central government visualises the activities of purchase and sale throughout the country by all government organisations, which helps in economic forecasting.
Technology procurement
This procurement may be facilitated by an assessment. If the cost of building, managing and utilising technology for production on site is less than that of procuring, managing and utilising the technology, then organisations may go for developing/building the technology. Otherwise, technology may be immediately procured. Developing technology on spot naturally enhances the brand value of the company.
Steps involved in purchasing
Next, we may discuss the steps involved in purchasing:
To assess the need for purchasing, it is essential that the total quantity of purchases made in the last quarter or last year be taken into account and based on that and certain other probable activities, an assessment of the purchase in terms of quantity and cost may be made.
After assessment, a market survey is needed. Government organisations undertake the job by calling for quotations from the open market. Called for quotations, they are then recorded and tabulated by a committee meant for the purpose and the lowest tenderer (L-1) is awarded the supply order. Usually, the statement prepared for this purpose is called a comparative statement, which is authenticated by the individual signatories. The supply order may be in the form of a contract.
The supply is then made by the supplying firm. After the materials are delivered, the quality of the material is tested by a team. Next, the materials delivered are taken to stock with certification of stock entry. Payment then follows after being taken to the store.
Concept of Break Even Point (BEP) and the effect of linkage of purchasing mode with BEP
BEP refers to the level of sales or production volume at which a company’s total revenue equals its total costs, resulting in no profit or loss. Thus, while a firm is at BEP, there is no net income or net loss. A break even analysis is a specific technique for studying and presenting the interrelationship between costs, volumes and profits. It is an efficient and effective method of financial reporting and planning.
There are two approaches to determining the BEP, viz., the formula approach and the chart approach. The formula approach stems from very simple logic and is being discussed here in this paper. The equations from the analysis of BEP for the computation of BEP may be given as follows:
Unit selling price – unit variable cost = unit contribution
Unit contribution x units sold = total contribution
Total contribution = total fixed cost + profit = total fixed cost (since at BEP, the profit by definition is zero).
The BEP may be expressed in terms of the number of units sold, in terms of rupees of sale or as a percentage of the total estimated/budgeted sale, depending on the need. We may see that the way we make purchases, stack or consume impacts the BEP. We may take one example to see how BEP is computed.
One company produces and sells product X. The sales price per unit is Rs. 50/ say; the variable cost per unit is Rs. 30/- and the given fixed cost of the operation is Rs. 1,00,000/-. From all this given information, we may calculate the contribution margin per unit, which is the sales price per unit less variable cost per unit, and it is Rs. 20/- here (50 minus 30). Next, we can compute the BEP in units. BEP in Units=Fixed Cost/Contribution Margin per Unit. So BEP in units = 1, 00,000/20= 5,000 units. The company may hence need to sell 5,000 units to break even or reach the break-even point.
For computing BEP in sales revenue, we need the contribution margin ratio, which equals the contribution margin per unit divided by the sales price per unit. In the instant case, the contribution Ratio=20/50=0.4: To calculate BEP in sales revenue, the formula devised is a Cost/Contribution margin ratio. So 1,00,000/0.4= Rs. 2,50,000/- is needed to be generated from sales for the company to break-even. The selling cost of 5000 units equals the amount arrived here.
BEP helps with pricing decisions, cost management and investment decisions. With this knowledge, a firm can go for enhancing the sales level, managing the cost structure or pricing based on profitability. At the start of any financial activity, say the introduction of a new facility in a hospital, it becomes logical and essential to analyse facts and figures to judge whether the venture will be profitable in the near future. However, before the actual profit, one would come to a point of level of operation where there is no profit or no loss. It is definite that beyond that point, any extra sales margin will generate profit.
Importance of BEP
Importance of BEP:
BEP helps most to make decisions on costing or pricing. The mode of purchasing or cost of purchasing and the stock in hand out of the purchase at the close of the year impact BEP and the resultant sale turnover. Alternatively, profit forecasting and exact profit in account aid management again with the known BEP level to take any sort of investment decision. Thus, knowing BEP in sales revenue aids in forecasting sales beforehand, which is the best management tool for a business to grow vertically.
BEP helps in analysing scenarios and thus, business at different points horizontally can be thought of as commencing. In turn, one may have easy sensitivity to the study of the target customers to grow further.
Breakeven analysis gives us some important points and facts, which makes it easier for us to make a business decision
This helps in setting goals and achieving them because, with breakeven analysis, we know exactly what goals we need to achieve.
It also helps us properly price our products from a business standpoint.
Factors that increase a company’s break even point
Factors that increase a company’s break even point are:
When the demand for a good increases, its supply also increases, in most cases. When the production of such goods is increased, it raises the break even point and helps cover extra expenses.
The break even point also increases when the cost of goods remains the same but the cost of raw materials increases. This increase in breakeven point is because of additional expenses.
Equipment failure also leads to an increase in the break even point because the desired number of units are not produced. Equipment failure leads to higher production costs and a higher break even point.
Conclusion
Various modes of purchasing associated with the computed BEP of the immediate prior period can be linked to forecast the quantity to be procured and the quantity to be utilised or consumed. Stock in hand can be minimised to the maximum extent, limiting the same to the next immediate need so that the fund of the unit is not blocked at any point in time. Aiming to maximise the profit with legitimacy is the current point of discussion.
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This article is written by Malika Jain and edited by Vanshika Kapoor (Senior Managing Editor, Blog iPleaders). This article seeks to provide a comprehensive account of all the relevant information about the Odisha Judicial Service Exam 2022-23. It covers every topic including the official Notification published by the Odisha Public Service Commission in 2023, the eligibility criteria, requisite qualification, important dates, the stages of the exam and their syllabus, and procedure of application. It guides the aspirants by providing a brief analysis of the past year question papers and shares useful tips and tricks to strategize the preparation of the exam. It also answers various FAQs which may arise in the mind of an aspirant while preparing for this exam.
It has been published by Rachit Garg.
Table of Contents
Odisha Judicial Service exam : a brief overview
The Odisha Judicial Service Exam is a great opportunity for the aspirants of judicial services to enter the State judiciary directly. It is conducted either by the High Court of Odisha or the Odisha Public Service Commission nearly every year in accordance with the provisions of the Odisha Superior Judicial Service and Odisha Judicial Service Rules, 2007. The exam filters out the candidates on the basis of three competitive exams, namely the Preliminary Exam, the Mains Exam and the interview.
The entire process of recruitment starts with an advertisement which is issued by the State usually on the official website of the Odisha Public Service Commission inviting applications from the aspirants to fill the vacant positions. After the duration for the submission of online applications ends, the State notifies the dates of these exams one by one. It declares the results of each phase through notifications issued on the above website. With the notification declaring the result of the interview and announcing the names of the selected candidates, the recruitment process comes to an end.
For the year 2022-23, the state of Odisha has already issued such an advertisement on 7th February 2023. According to the official notification, the duration to submit online applications for the exam was from 17th February 2023 to 17th March 2023. Subsequently, the State also issued a Notification on 18th April 2023 for declaring 21st May 2023 as the date of the Preliminary Written Exam. The results of the Preliminary Written Exam 2022-23 were announced on 27th June 2023. Post that, the State also announced that the Mains Exam 2022-23 shall be conducted from 3rd to 7th September 2023. The exam of the compulsory papers shall take place on 3rd September 2023 and the exam of the optional papers shall be held from 4th to 7th September 2023.
Job Profile on selection in Odisha Judicial Service Exam
Designation
The Odisha Judicial Service Exam is an exam for the recruitment of suitable candidates for the position of Civil Judges in Odisha Judicial Service under the State Law Department.
Pay scale
As per the recent notification/advertisement (No. 19 of 2022-23) by the Odisha Public Service Commission, the candidates selected for the above position, after passing through the aforementioned three-phased evaluation process, shall be entitled to the remuneration in the pay scale of Rs. 77,840-1,36,520/-. This is the revised pay scale. Earlier, the remuneration was in the pay scale of Rs. 27,700-770-33,090-920-40,450-1,080-44,770/-.
Along with this revised basic pay, the selected candidates shall also receive inflation and other allowances like house rent allowance, medical allowance, travel concessions, etc. as the Government may sanction from time to time.
Vacancies for the Odisha Judicial Service exam
As stated earlier, the Odisha Public Service Commission recruits candidates for the post of civil judges nearly every year which shows that vacancies occur frequently in the State’s judicial system.
The following table provides insights about the vacant posts of civil judge offered by the Odisha Public Service Commission in the last couple of years (excluding the COVID-19 period)-
Sr. No.
Years
Vacant Positions Offered
1
2022-23
57
2
2021-22
53
3
2020-21
COVID-19 period
4
2019-20
51
5
2018-19
43
6
2017-18
110
The above table clearly indicates that the state of Odisha conducts this judicial service exam and offers a decent number of posts for the position of Civil Judge every year. Thus, the Odisha Judicial Service presents great employment opportunities to the judiciary aspirants as there is little uncertainty regarding the conduct of the exam and aspirants get to take the exam and enter the system every year.
Category-wise description
In the year 2022-23, 57 vacant posts have been advertised by the Odisha Public Service Commission. Out of these 57 posts, 6 posts have been reserved for the Socially and Educationally Backward Classes, 9 posts have been kept aside for persons belonging to the Scheduled Caste (SC), 13 posts have been earmarked for persons belonging to the Scheduled Tribes (ST), 4 posts have been kept for persons with benchmark disabilities which also include the carried-forward two posts from the previous year vacancies, and lastly, the remaining 25 positions are open for the unreserved category.
The same is represented in the table below:
Sr. No.
Category
Total Vacancies
Vacancies reserved for women
1
Unreserved
25
08
2
Socially and Educationally Backward Classes
06
02
3
SC
09
03
4
ST
13
04
5
Persons with benchmark disabilities (i.e. Orthopedically Handicapped and Deaf and Hard of hearing candidates with suitable aid)
2+2 (two carried forward posts)
01
Total
57
18
Out of these 57 vacant posts, a total of 18 posts (2 posts for women from Socially and Educationally Backward Classes; 3 posts for women from Scheduled Caste (SC); 4 posts for women from Scheduled Tribes (ST); 1 post for women with benchmark disabilities, and; 8 posts for women from unreserved category) have been reserved for women.
Filling of unfulfilled vacancies
If any post reserved for women or Socially and Educationally Backward Classes or persons belonging to SC or ST groups remains unoccupied due to any reason, the same would be filled by the eligible male candidates of the same category.
Eligibility criteria for the Odisha Judicial Service exam
Educational qualifications and other experience of the applicant
Qualifications of general applicants
The applicants must simply have a graduate degree in law from a recognised University or any other institution recognised by the Government of India.
Qualifications of departmental applicants
A person who is:
a Superintendent or a Ministerial Officer in the High Court or any subordinate Civil or Criminal Court; or
an Assistant Law Officer; or
a Translator of the Law Department of the Government
is also eligible to take this exam and be recruited in Odisha Judicial Service as Civil judge, provided that he/she:
has done a graduation in law from a University recognised by the Sate Government of Odisha;
has at least 7 years of approved service, which shall be computed by the last date for the submission of the online application for this exam, in the High Court or any subordinate Civil or Criminal Court or in the Law Department of the Government;
has the recommendation by his or her respective appointing authority; and
is of 39 years or younger as on 1st August 2022.
Such a departmental applicant is also required to adduce appropriate evidence to show that he/she has, in fact, been recommended by the competent authority and that he/she meets all the above-mentioned criteria of eligibility.
Such evidence has to be attached with the hard copy of the online application form during the submission of certificates or other documents.
Qualifications of government servants
Government servants including permanent or temporary or those who are on probation against a vacancy in permanent/temporary positions in any government department are absolutely eligible to sit for this exam. However, to be so eligible, he/she must have the aforementioned requisite qualification and be within the valid age criteria.
Additionally, these candidates are also mandated to give a written information to the head of their respective offices regarding their application to appear in this exam and obtain a ‘No Objection Certificate’. This NOC has to be furnished during the verification of documents.
However, if the employer of such a Government servant communicates to the Odisha Public Service Commission his/her revocation of the permission to apply for this exam, the candidature of the applicant shall be cancelled.
Age limit criteria for the Odisha Judicial Service exam
According to the advertisement of 2022-23, the age of the applicant must neither be below 23 years nor be more than 35 years as on 1st August 2022. The applicant must also not have been born either before 2nd August 1987 or after 1st August 1999.
To verify the age of the applicants, the Commission will look into the date of birth mentioned in the High School or other equivalent certificate issued by the Board/Council concerned.
Thus, it is advisable that all the candidates fill in their age and date of birth correctly in the application form after duly confirming the same from the above mentioned documents.
Relaxation in the age limit
The cases in which the age limits imposed on the candidates can be relaxed are restricted to only those mentioned in the notification, and in no other case such relaxation will be provided to the candidates.
As per the advertisement of 2022-23, the limitation of maximum age has been extended by five years for women applicants and for candidates belonging to SC and ST groups or Socially and Educationally Backward Classes, ex-servicemen or Commissioned and SSC Officers of defence service. In other words, for these categories of candidates, the valid age bracket would be 23 years to 40 years.
Further, for persons with benchmark disabilities, the limitation of maximum age stands extended by ten years over and above the regular relaxation provided to the SC or ST candidates and candidates from Socially and Educationally Backward Classes.
Furthermore, with respect to the departmental candidates having an experience of 7 years in the service, the maximum age limit to sit for this exam is 39 years as on 1st August 2022.
General eligibility criteria for the Odisha Judicial Service exam
The general conditions of eligibility are applicable to all applicants. An applicant, in order to be eligible to take this exam must:
Be an Indian citizen (candidates from all over India can apply for this exam provided that they fulfil other eligibility criteria, especially the linguistic criterion as mentioned below);
Possess a good character;
Have good health without any organic defect or bodily infirmity; and
Have the ability to speak, read and write Odia language with full proficiency and must have cleared an exam of standard equivalent to Class VII in Odia.
Please note : Candidates who have changed their name are additionally required to submit a copy of a prominent local daily newspaper in which the name change must have been published, together with a copy of the official notification published in the Gazette backing such name change. Also, it is to be specially noted that the candidates, in order to be considered eligible to take this exam, must meet the above-mentioned qualification criteria, age-limit criteria and other general conditions of eligibility by the closing date of the deadline stipulated for the submission of the online application form.
Note- The concessions which have been provided to the Socially and Educationally Backward Classes or SCs or STs by birth are only meant for Socially and Educationally Backward Classes or SCs or STs of the State of Odisha. In other words, the affirmative action provided in this recruitment process is state-specific and applies only to the above backward classes of the State of Odisha.
Grounds of disqualification and rejection of the application for the post in Odisha Judicial Service Officer
It is imperative for the candidates to be aware of the grounds of disqualification and rejection of the application form to appear in this exam to avoid any unfortunate mistake or discrepancy in their candidature.
Grounds of disqualification
An applicant will be disqualified from appearing in the Odisha Judicial Service Exam in the following circumstances:
If he or she has more than one living spouse, i.e. if he/she is already married to more than one living persons or he/she marries another while already having a living spouse, he/she will be disqualified from appointment in the services.
However, this disqualification does not apply if such person has been exempted from this limitation by the State Government for sufficient reasons;
If he or she has been debarred either by the Odisha Public Service Commission or by the Union Public Service Commission (UPSC), at any time, for any period or chance, from appearing in any exam or interview/ viva-voce, he/she will be disqualified from recruitment to the posts of Civil Judge in Odisha Judicial Service for that particular time period or chance;
If he or she does not fulfil the requirements of the medical fitness as may be required by the Odisha Public Service Commission for this post and consequently fails in the compulsory medical examination conducted by Medical Board;
d.i) If he or she pressurises or illegally gratifies any person involved in the conduct of the recruitment process to gather support for his or her candidature and is found guilty of the same; or
d.ii) if he or she is found engaging in any malpractice in the course of selection or the recruitment process,
his or her candidature will be disqualified from the current application process and he or she may also be debarred from any recruitment process that may be conducted by the Odisha Public Service Commission either temporarily or permanently.
In addition to such disqualification, he/she shall also attract liability of criminal prosecution.
Grounds of rejection
An applicant’s candidature shall be rejected by the Odisha Public Service Commission and he/she will not be able to appear in the Odisha Judicial Service Exam in the following circumstances:
If the candidate fails to satisfy the eligibility criteria as mentioned above;
If the candidate does not fall within the valid age criteria;
If the candidate does not produce a hard copy of the online application form during the verification of original documents;
If the applicant does not sign the declaration (full signature) in the hard copy of the online application form;
If either the candidate has not been able to pass the Odia test as mentioned above in point (d) of the General Eligibility Criteria for the Odisha Judicial Service Exam 2023 or furnish the evidence of passing the Odia test, as mentioned in the section on Certificates to be deposited;
If the copies of requisite documents as mentioned in the section on Certificates to be deposited have not been submitted;
If wrong or false information about any qualification or age or Socially and Educationally Backward Classes status or SC status or ST status or status of being an ex-servicemen or a person with disabilities or a woman, etc. is furnished by the candidate;
If the online application of the applicant to appear in this exam is incomplete or defective in any manner, the Odisha Public Service Commission will reject the same without any correspondence with the candidate;
If at any stage of the recruitment process either before the exam or after it, the applicant is found to be ineligible by not meeting any of the eligibility criteria as mentioned above, his or her candidature shall be rejected by the Commission whose decision will be final.
Further, not only with respect to eligibility but also in any other case, the decision of the Odisha Public Service Commission shall be final.
If it is found that the applicant has misrepresented or suppressed any information in the online application form, either the candidature of the applicant will be cancelled or he or she will be imposed a penalty as may be decided by the Commission.
If the Government, upon making necessary enquiry, is not satisfied with the overall suitability of the candidate for recruitment to the post of Civil Judge in Odisha Judicial Service, then even if the candidate’s name appears in the select list, he or she will not be appointed and his or her candidature will stand rejected;
If the scanned image of the passport size photograph, signature of the candidate, and left-hand thumb impression, which are to be attached with the online application form, are not clearly visible or identifiable, the applicant’s candidature may be rejected without even entertaining any representation or correspondence by the candidate.
On the basis of any other ground as may be decided by the Commission.
Notably, the candidature of the applicant can be rejected at any stage of the recruitment process whenever any discrepancy or defect is noticed by the Commission. Admission to the exam is only provisional and the advertisement published by the Government to invite applications for this exam does not bind it to make recruitment or any appointment.
Stages of exam for the Odisha Judicial Service exam
Odisha Judicial Service Preliminary Exam
Overview of Odisha Judicial Service Preliminary Exam
The Preliminary Exam is an objective type exam with multiple choice questions (MCQs). This exam tests the abilities of the candidates to memorise the provisions, niceties involved in the provisions and other trivia about the law. It comprises a single Paper containing 100 MCQs of one mark each, i.e., the total weightage of the Preliminary Exam is 100 marks. The duration to complete these 100 questions is 90 minutes, i.e., one and half hours. This gives the candidates 54 seconds for each question. This exam also has a provision of negative marking of 0.25 marks for every wrong answer. In other words, on selecting wrong options for every 4 questions, the candidate will lose 1 mark. Thus, the candidates must attempt only those questions that they are absolutely sure about and refrain from attempting guesswork.
The answers to the multiple choice questions are to be given through OMR (Optical Mark Recognition) sheets by shading the circle of the right option. Generally, ballpoint pens in blue or black are instructed to be used for filling the OMR sheet. The OMR sheets will be evaluated through computers.
Since the Paper is in offline mode and answers have to be indicated in an OMR sheet, the candidates must remain very careful in shading the circles in the OMR as the same cannot be undone or revised later on. Only when the candidate is cent per cent sure of the correctness of an option that he/she should darken the respective circle in the OMR.
Syllabus for Odisha Judicial Service Preliminary Exam
The Odisha Public Service Commission prescribes that the candidates must study the following subjects comprehensively to prepare for the Preliminary Exam:
Constitution of India;
Code of Civil Procedure, 1908 (CPC);
Code of Criminal Procedure, 1973 (CrPC);
Indian Evidence Act, 1872;
Indian Penal Code, 1860;
Limitation Act, 1963;
Transfer of Property Act, 1882;
Indian Contract Act, 1872;
Law of Succession (Both Indian Succession Act and Hindu Succession Act);
Specific Relief Act, 1963;
Protection of Women from Domestic Violence Act, 2005;
Any other law as may be specified by the High Court from time to time.
Qualifying Criteria of Odisha Judicial Service Preliminary Exam
To qualify for the Mains Exam, the candidates should score at least 35%, i.e. 35 marks, in case of candidates belonging to SC and ST category, and 40%, i.e. 40 marks, in case of candidates belonging to other categories in the Preliminary Written Exam.
Odisha Judicial Service Mains exam
Overview of Odisha Judicial Service Mains Exam
The Mains Exam is a descriptive exam aimed at testing the applicants on the basis of their overall knowledge of the subjects. It asks essay type questions on different subjects. This exam consists of two papers: Paper 1, which is conducted in two separate papers for two compulsory subjects, and Paper 2 which is based upon three separate papers for three optional subjects as may be selected by the candidates. Paper 1 carries 300 marks (150 x 2 (Paper 1 and Paper 2) in total, and Paper 2 carries 450 marks (150 x 3 (separate Papers of optional subjects) in total.
Mains Exam
Paper 1
Paper 2
Description
2 Papers (General English and Procedural Laws)
3 Papers (3 Optional Subjects)
Marks of each exam
150
150
Total Marks
300
450
Syllabus of Odisha Judicial Service Mains Exam
The Odisha Public Service Commission prescribes the following subjects that must be studied comprehensively by the aspirants to prepare for the Mains Exam:
General English;
CrPC;
CPC;
The Indian Evidence Act, 1872;
Law of Crime (mainly the Indian Penal Code 1860);
Law of Torts;
Indian Contract Act, 1872;
Sales of Goods Act, 1930;
Partnership Act, 1930;
Negotiable Instruments Act, 1881;
Specific Relief Act, 1963;
Indian Limitations Act, 1963;
Transfer of Property Act, 1882;
Personal laws (Hindu law and Muslim law);
Constitution of India, 1950;
Jurisprudence.
Paper 1: Paper 1 (General English)
About
The first paper of Paper 1 tests the candidates’ knowledge of the compulsory subject of General English. This Paper comprises 5 questions for a total of 150 marks which have to be answered by the candidates in two and a half hours, i.e. 150 minutes. Thus, the candidates can devote 30 minutes to each question. To attempt this Paper, the applicants are required to possess good proficiency in both English and Odia. It is advised to the candidates that they pay special attention to the grammar and spelling of both languages to score good in this Paper.
Types of Questions
This Paper involves questions based on translation and retranslation. The candidates will be required to translate 10 Odia lines into English and retranslate 10 English lines into Odia. The questions are also based on precis writing of about 300 words; short essay writing of about 150 words, and; one passage consisting of 500 words along with five questions. As regards the questions of translation and retranslation are concerned, the question paper will contain two passages, out of which one English passage will have to be translated into Odia, and the other Odia passage will have to be retranslated into English.
Also, it is vital to keep in mind by the candidates that there is no choice in the exam as regards the questions to be attempted, i.e. the candidates have to attempt all the questions asked in the exam.
Division of Marks
Both the translation as well as the retranslation questions contain 25 marks each. The short essay of 150 words carries 50 marks. The precis writing exercise is of 25 marks. Lastly, the question containing a passage and five corollary questions carries 25 marks, that is five marks for each question.
Paper 1: Paper 2 (Procedural Laws)
About
The second paper of Paper 1 evaluates the knowledge of the procedural laws of the candidates. It covers all the major procedural laws of the country, viz. CPC, CrPC, and the Indian Evidence Act, 1872. The Paper is of total 150 marks. The Paper is generally divided into three sections: A, B and C, covering the above-stated three subjects and comprising a total of 12 questions out of which 6 questions have to be attempted. Every section has 4 questions and the candidates have to attempt any 2 questions out of the same. These 6 questions have to be completed in two and a half hours, i.e., 150 minutes. Thus, the candidates get 25 minutes for each question.
Types of Questions
Notably, every question in the Paper is itself divided into several sub-questions. Therefore, the candidates will be required to maintain decent handwriting speed to be able to attempt all the questions properly. The questions are concept based and not situation or fact based. The Paper does involve ‘what’ questions and are generally direct.
The Paper gives ample scope to the candidates to choose the question of their comfort as only 2 questions per section have to be answered.
Division of Marks
All the sections are of equal marks, i.e. of 100 marks. The questions in the section are of different marks ranging from 5 marks to 15 marks. Thus, no section/ subject can be placed over any other and every section has to be given equal significance and effort.
Paper 2: Optional subjects
About
Paper 2 is an exam on the subjects chosen by the candidates themselves. It offers 5 subjects from which the candidates have to select 3 optional subjects based on which they have to take respective exams. Thus, technically Paper 2 will consist of 3 Papers of 3 different optional subjects. The five options available to the applicants are:
Law of Crime and Law of Torts;
Personal law;
Law of Property;
Law of Contract;
Jurisprudence and Constitution of India.
These exams shall be for a total of 150 marks each. The exams of these optional subjects will be scheduled separately, so, every candidate’s schedule for Paper 2 may vary according to the optional subjects chosen by him/her. All the exams shall be for the duration of 3 hours.
We discuss hereinbelow the structure for all these five subjects:
Law of Crime and Law of Torts
Structure
The Paper of this exam is divided into 2 sections: A and B. Both the sections deal with a separate subject. For instance, Section A may be formed out of Law of Crime only and Section B may contain questions from Law of Torts only or vice-versa. Section A will contain 6 questions out of which the candidates will have to attempt any 3 questions. Same is the case with Section B.
In this Paper, the candidates are required to attempt 6 questions in the maximum duration of 3 hours, i.e., 180 minutes, which gives every candidate 30 minutes to attempt each question. Some questions may be further divided into various sub-questions. Hence, candidates must keep a good track of time and distribute it according to the marks allotted to the questions.
Division of marks
The pattern of division of marks in this Paper keeps changing. Sometimes, all the questions can be of the same marks and sometimes, every question may carry different marks. For example, in the Mains Exam of Odisha Judicial Service 2021-2022 and 2018-2019, this Paper contained all the questions of 25 marks each. But, in the Mains Exam of the year 2017-2018, all the questions in the Paper were of different marks ranging from 10 to 25.
Thus, it is advised that the candidates prepare answer writing for questions carrying marks of every scale: 10, 15 and 25, in order to be prepared for every case of marks distribution, either equal or differential.
Personal law
Structure
Like the previous Paper of Law of Crime and Law of Torts, this exam is also divided into 2 sections: sections A and B. Generally, the two sections deal with the personal laws of two different religions: Section A generally deals with the Hindu law, whereas, section B generally deals with the Muslim law.
Section A will contain 6 questions out of which the candidates will have to attempt any 3 questions. Same is the case with Section B. Thus, in this exam also, the candidates will have to answer 6 questions in 3 hours. In other words, the candidates will get 30 minutes to attempt each question. Some questions may be further divided into various sub-questions.
Division of marks
Same as in the exam of Law of Crime and Law of Torts.
Law of Property
Structure
In this Paper, the candidates will be required to answer 6 questions in total, chosen from the three sections of the Paper. The candidates will be able to choose two questions from each section with a time period of 30 minutes for each question.
Section A of the Paper evaluates the candidates’ knowledge and understanding of the Transfer of Property Act, 1882. Section B of the Paper is centred on the Specific Relief Act, 1963. Lastly, Section C of the Paper revolves around the Limitations Act, 1963. The questions are not only based on the legal concepts and doctrines but also on the statutory provisions.
Division of marks
Same as in the exam of Law of Crime and Law of Torts.
Law of Contract
Structure
The Paper of the law of Contract has four sections. Out of these 4 sections, a total of 6 questions have to be answered by the candidates. Two questions have to be selected out of sections A and B each while one question has to be attempted from sections C and D each. Earlier the pattern was different and certain questions were made compulsory for the candidates to answer. However, the recent pattern has changed the structure to leave it completely to the candidates to answer any 6 questions of their choice from the respective sections.
Section A contains questions from the Indian Contract Act, 1872. Further, Section B poses questions from the Sale of Goods Act, 1930; Section C tests candidates’ knowledge of the Indian Partnership Act, 1930; and lastly section D asks questions from the Negotiable Instruments Act, 1881.
It has been seen from the past years’ papers that small situation-based or fact-based questions have also been asked in the exam together with conceptual and provision-based questions.
Division of marks
Apart from the scheme of division of marks followed in the exam of Law of Crime and Law of Torts, It may also be possible in this exam that a section may have all the questions of the same marks and other sections may have questions with different scale of marks. For instance, in the Main Written exam of 2018-2019, section A contained all the questions of 25 marks each, whereas, the rest of the sections contained questions in the scale of 10 and 15.
Jurisprudence and Constitution of India
Structure
The Paper of this exam is divided into 2 sections: sections A and B, each dealing with a separate subject. Questions of Section A are based on the Constitutional law from the Constitution of India, whereas Section B contains questions from Jurisprudence. Section A has 6 questions out of which the candidates have to attempt any 3 questions. The same pattern goes for Section B also. The questions demand that the candidates back up their answers with relevant case laws.
Division of marks
Same as in the exam of Law of Crime and Law of Torts.
General Guidelines for Odisha Judicial Service Mains Exam
It is required that the candidates answer the questions in the Mains Exam in English language unless it has been directed otherwise.
The candidates must be extremely careful about choosing or selecting the optional subjects in the online application form as the same will not be allowed to be changed or modified. The selection of the optional subjects by the candidates as indicated in their online application form will be final.
The standard of the exam of the subjects of law shall be the same as that of the LL.B. course.
As regards the compulsory Paper 1, the standard of the exam shall be of a degree course.
Qualifying criteria
It is imperative for the candidates to secure at least an aggregate of 45% marks and 33% marks in every exam of the Mains Exam to qualify for the interview stage and get a call for the same from the Commission.
Furthermore, the number of candidates which would be called for interview would not exceed thrice the number of vacant positions under every category in the order of merit as may be advertised by the Commission for the recruitment process.
Interview
Overview
The interview is the last stage of the recruitment process. The aim of this exam is to test the personality, interpersonal skills, and attitude of the candidate. Interview is conducted for a total of 100 marks.
Syllabus
Generally the syllabus for the Mains Examination is the syllabus for the stage of interview as well. However, since, in this stage, the recruiters get to personally interact with the selected candidates, the questions may not be strictly related to the syllabus. Although the questions in the interview will not be completely out of syllabus, they may be related to the current affairs testing the basic general knowledge and awareness of the candidates.
It may also involve questions from broad national and international issues and topics of common interest in the area of science and art.
Qualifying criteria
The criteria to qualify in the stage of interview and to be included in the merit list is that the candidates must at least score 40% marks, i.e. at least 40 marks, in the interview.
Marking scheme for the Odisha Judicial Service exam
The marking scheme and the qualifying criteria of all the stages have been described above in detail. The important thing to be noted, however, is that the Preliminary Exam has a negative marking of 0.25 marks for every wrong answer.
This section further deals with the marking scheme of the final merit list.
The Odisha Public Service Commission, in order to prepare the final merit list of selected candidates, on the basis of which the recruitment will be done, shall prepare a merit-wise list of the candidates qualifying in the written exams and the interview which shall be equal to the vacancies advertised. For example, if 57 vacancies have been advertised by the Commission, it will list the top 57 candidates to prepare the merit list. The merit list prepared by the Commission in this manner shall remain valid for a year from the date of its approval by the government.
Breaking the tie
If there is a tie between two or more candidates and they have secured equal marks in the total, the order of merit between them shall be determined according to the marks obtained by them in the written examination. If such candidates have secured equal marks in the written examination, then the total marks secured by them in their LL.B. examination shall be considered to decide the order of merit between them. If the marks of the LL.B. examination are also equal then the age of the candidates shall become the decisive factor and the older candidates shall be preferred over the younger candidates.
How to check results for the Odisha Judicial Service exam
The candidates can visit the official website of the Odisha Public Service Commission to check the results of the exam of any of the phases of the Odisha Judicial Service exam.
The disclosure of other details relating to the recruitment process like the cutoff marks, answer keys and the individual marks shall be made by the Commission on its website after the declaration of the final result of the recruitment process as well as the merit list.
When to start preparation
Starting the preparation of this exam on a right note is important. Thus, firstly, see the analysis of the past year question papers and understand the pattern and important areas for the preparation. Thereafter, one should start the preparation by studying the subject they find the most engaging. Take mocks and practice questions to build interest first and then engage in the rest of the preparation. Candidates should start the preparation as early as possible. Since all the subjects in the syllabus of this exam are taught in the law school, so if possible, the candidates must start their preparation from their time in law school only. However, the same is not a strait-jacket formula to clear the exam and its preparation can be started even after the completion of the law school period. The same varies from person to person.
How to prepare for Orissa Judicial Services exam
Preliminary Exam and Mains Exam
The candidates must prepare for Preliminary Exam and Mains Exam simultaneously as most of the subjects in the syllabus of these exams overlap. The candidates who are still in the law school can prepare for this exam by studying the subjects of the syllabus thoroughly while they are being taught in their law school. Apart from reading the concepts, the candidates must take special care to learn about the landmark and the recent case laws related to the concepts.
Candidates are not advised to prepare for two major subjects together. Instead, they may consider taking up one major subject with another minor subject related to the former. For instance, the Limitations Act, 1963, can be taken with CPC or Partnership Act can be taken up with the Indian Contract Act.
The preparation of all the subjects must be done from the standard books available for the subject which are generally recommended in the law school itself.
For preparing General Knowledge, both static and current, the candidates can rely on sources like Newspapers, weekly/monthly GK magazines, and reliable YouTube videos. For learning new vocabulary, the candidates must develop the habit of extensive reading and can resort to various social media pages that teach advanced vocabulary. The candidates may also refer to standard books for English vocabulary.
Besides studying the subjects, the candidates must also take mock tests regularly to evaluate one’s progress. Moreover, they must analyse the mock tests and identify their strengths and weaknesses and work on the same. While studying the subjects, the candidates must make notes, not only of the subjects but also of the mock tests’ analysis, as the same are very helpful for quick revision. The candidates are also advised to revise their subjects at regular intervals for better memory retention.
Interview
In order to prepare for an interview, candidates can start off by taking mock interviews either with the help of a friend or a family member. As an alternative, they may also consider giving interviews in front of a mirror to observe one’s body language and gestures while answering the questions.
The candidates can make notes of the questions that may be asked in the interview and the answers thereof to practice the same. They must also prepare and practice answers to certain personal questions like questions about the candidate’s hobbies or interests or favourite subjects, etc. The answers must be truthful and honest and must be conveyed in a polite yet confident manner.
It is also recommended that, while taking mock interviews, the candidates also keep a track of time, so that the answers can be made more crisp and relevant.
It is advisable that the candidates read about all the latest news and events before going for the interview.
A well-dressed, well-informed and well-mannered candidate would always have an edge over others. The candidates must dress formally with minimal accessories. They must prefer light solid colours over prints. For men hair must be short and nicely trimmed; for women, hair must be neatly tied.
Tips and tricks on how to study for the Odisha Judicial Services exam
Try to answer the multiple choice questions through the method of elimination, i.e., by eliminating the incorrect options, the correct option will automatically emerge.
Practice answer writing a million times.
Make timelines or short term objectives for the completion of each subject for a time-bound study.
Always make notes in the form of structured answers so that the same can be replicated even in the exam.
Dress comfortably during the Preliminary and Mains Exam. Dress formally and decently for the interview.
Avoid chunky and gaudy accessories in the interview.
Prepare for the subject during the weekdays and practice related questions during the weekends.
It is always better to practise mock tests during the same time period in which the actual exam is scheduled. For instance, if, say, the Preliminary Exam is scheduled from 10:00 A.M. to 11:30 A.M., practice the mock test of the Preliminary Exam at the same time during preparation to condition the mind to work in that particular duration.
Join mock series and practice questions on a regular basis.
Do not attach much importance to the marks scored in the mock tests, rather focus at detailed analysis and note making thereof.
The candidates may skip attempting the mocks when the exams approach near and must focus only at revising the mocks.
Stay calm and composed during the exams. Take proper nutrition and sleep during the period of preparation.
Application process of the Odisha Judicial Service exam
The application process is one of the most crucial steps for candidates to be able to appear for this examination, thus, the candidates are advised to be careful while submitting their application form. The candidates are also advised, before filling the application form, to visit the website of the Odisha Public Service Commission and go through the original advertisement calling applications for Odisha Judicial Service exam and the detailed instructions issued to the candidates by the Commission.
Application form
The application form to apply for this exam has to be submitted online only and any application submitted otherwise shall be rejected by the Commission summarily. The Application form has to be filled out through the official website of the Odisha Public Service Commission. After landing on the default page of the website, the candidates may click on ‘Apply Online’ to see the application forms for all the latest openings.
To apply, the candidates will have to register on the website of the Commission for which a candidate must necessarily have a valid mail ID. While having a working phone number is not mandatory, it is advisable that candidates must also provide the same to receive information about the various stages of the application.
The application form is automated and system-driven and will itself guide the candidates In filling out the same. Before filling the application form, the candidates may also be required to fill a declaration form.
It cannot be emphasised enough that the candidates must read and fill correct and valid information in the application form, since the option of the modification or alteration of the application form, once it has been submitted, is very limited. Even if a candidate has filled in the wrong information, there is no room for making any edits in the form.
The candidate must submit only a single application; however, due to unforeseen circumstances, if the candidate submits more than one application, then the application with the higher Registration ID would be considered by the Commission. Hence, the candidates must ensure that such application is valid and complete in all regards.
Also, the fee submitted by the candidate with respect to one application will not be adjusted towards any other application submitted by the candidate. The Commission follows the system of one payment for one application.
The candidates may visit this website for detailed guidelines as to how the candidates should apply for this exam.
Documents required to fill out the Odisha Judicial Service exam application form
The candidates have to upload certain documents with their online application form; thus, they must keep all these documents ready in the format required by the Commission. Following are the documents which are required to be attached with the online application form:
Scanned copy of the latest passport size photograph of the candidate (the size of the file should be between 25KB to 100 KB);
Scanned image of the candidate’s full signature in black ink on white paper (the size of the file should be between 10 KB to 50 KB), and;
Scanned image of the thumb impression of the left hand in black or blue ink on white paper (the size of the file should be between 10 KB to 50KB).
The images of the photograph of the candidate, his or her signature, and left thumb impression must be in the .gif or .jpg format.
Fees for the Odisha Judicial Service exam
Generally, the fee for the Odisha Judicial Service Exam is INR 500/- for all the candidates, except for SC and ST candidates and candidates with disabilities, who are exempted altogether from payment of any fees for this exam.
How to make payment for the Fees for the Odisha Judicial Service Exam?
After the successful submission of the application form, the candidate must print the Challan form which will contain details about the name, date of birth, registration number of the applicant and the amount to be paid thereby. Thereafter, the print of the Challan shall be taken to the nearest SBI branch where the candidate must make the payment of the fee at the bank counter. After the deposit of the said fee, the bank official will mention the voucher number, put the bank seal and his/her signature.
The bank will retain the “Bank copy” of the challan and return to the candidate the “Candidate copy” and “OPSC copy” of the challan.
Grievance regarding the conduct of the exam
If the candidate has any grievance or complaint regarding the conduct of the exam, he or she shall intimate the same to the Grievance Wing of the Commission via mail ID: [email protected] within a time period of 3 days from the completion of the exam.
General guidelines regarding application
Besides the above guidelines about the entire application process of this exam, the candidates must also adhere to the following general guidelines:
The candidates must keep at least 4 copies of his or her latest passport size photograph which he or she must have uploaded in the application form as well.
When a candidate submits his or her application form successfully, he or she is to receive a ‘Permanent Public Service Account Number (PPSAN)’.
The candidates have to take a print out of the successfully submitted Registration or Re-registration form as well as the online application form and sign the declaration mentioned therein for submitting the same to the Commission along with other requisite documents as and when asked thereby.
The Commission will upload the Certificate of Admission for the eligible candidates on its website before the date of the written exam. The candidates have to download it and produce the same at the exam centres during the written exam.
The candidates are advised to keep visiting and checking the website of the Odisha Public Service Commission for declaration of result or publication of a notice or any new update on this exam. The candidates must also refer to the leading Odia local newspapers for new updates.
The candidates may refer to these FAQs regarding the application procedure of this exam.
At the cost of repetition, it is reinstated that the candidates must read the original advertisement and all the guidelines and instructions issued by the Odisha Public Service Commission before starting off with the application procedure for this exam.
Certificates to be deposited
In order to check if the candidates, those who have qualified the written exam, actually fulfil the eligibility criteria as per the advertisement for the recruitment, the Commission requires them to bring the following documents for verification on a date which is notified later by it:
Hard copy of the online application form;
High school certificate or any other equivalent certificate as may be issued by the concerned Board or Council for the verification of age;
Certificate of the bachelor’s degree of law as may be issued by the concerned University;
Odia test pass certificate either from the concerned school showing that the candidate had Odia as one of the subjects in 7th or 8th standard and that he or she had passed that exam or from the Board of Secondary Education, Odisha or any other Government approved board or Council of Secondary Education backing that the candidate had passed the Odia test of Middle English School standard, If the candidate has not passed the former.
Certificate of experience by the competent authority clearly showing the joining date, if the candidate claims to be a departmental applicant;
Good character certificate either from the principal/ proctor/dean or from the professor who is incharge of the department of teaching in the institution in which the candidate last studied;
Two recent passport-size, unsigned and unattested photographs of the candidate which he or she would have also uploaded with the online application form;
Candidates claiming to be belonging to any Socially and educationally backward classes, SCs or STs, must submit a caste certificate by birth;
Candidates with disability need to submit a Medical certificate or a Disability certificate as may be issued by a competent Medical board or authority specifying the percentage of disability;
Candidates who claim to be ex-servicemen are required to submit a Discharge certificate from the Commanding Officer of the unit in which he or she last served;
Such candidates as mentioned in the last point are also required to deposit an affidavit undertaking that they have not been recruited or appointed for any civil post after retirement from military services;
Any other proof of Identity.
Important points regarding documents/certificates
The candidates must mention “Submitted by me”, their full signature and the date on all the documents as mentioned above.
The applicants belonging to socially and educationally backward classes must submit a caste certificate which should have been issued within the last 3 years from the last date prescribed for the submission of online application form. If the certificate is more than 3 years old by such date, it will be rejected by the Commission.
OBC certificate shall not be a substitute for certificate issued to people belonging to socially and educationally backward classes (SEBC certificate). The former, if deposited in the place of the latter, shall be rejected.
The candidates must state their true caste status, as the same cannot be changed at any point of time.
The caste certificate deposited by the women candidates who claim to belong to socially and educationally backward classes or SCs or STs must clearly identify them as “Daughter of …”. Caste certificates as a result of marriage identifying them to be the “wife of…” shall not be a valid caste certificate and be liable to rejection by the Commission.
All the certificates as mentioned above must have been issued to the candidate by the competent authorities within the time limit fixed for the submission of the online application form.
The candidates must not attach the original copies of their certificates with their application.
Exam centres for the Odisha Judicial Service exam
The Odisha Judicial Service exam is mainly conducted across 5 centres in Odisha. They are as follows:
Balasore
Berhampur
Bhubaneswar
Cuttack
Sambalpur
The Preliminary Exam is conducted across all these centres. However, if sufficient numbers of candidates are not available for the exam centres of Balasore, Berhampur and Sambalpur, the candidates who must have chosen these three exam centres would be accommodated at the exam centres in Cuttack and Bhubaneswar. Same is the case with the Mains Exam. The allocation of centres in both these exams depend upon the number of candidates available.
Details of the help desk
If the candidate requires any guidance regarding the application procedure of the exam or the recruitment process in general, they may not only resort to the FAQs mentioned but also contact the Facilitation Counter of the Odisha Public Service Commission over telephone no. 0671-2304141/ 2305611 on working days. The said facility of assistance is available between 10:30 AM to 1:30 PM and 2:00 PM to 5:30 PM.
Moreover, if the candidate faces any technical issues in the filling up of the registration or registration or the online application form the candidate can contact the technical support team of the Odisha Public Service Commission via telephone no. 0671-2304707 on Working days between 10:30 AM to 1:30 PM and 2:00 PM to 5:30 PM.
Analysis of past year question papers of Odisha Judicial Service exam
Before starting the preparation of the Odisha Judicial Services Exam, the candidates must study the past year question papers of the exam to understand its pattern and choice of questions in order to prepare for it accordingly. This analysis will also help the candidates in identifying important topics from the syllabus which are asked very frequently in this exam. Below is the phase-wise analysis of the past year question papers of the Odisha Judicial Service exam from 2012-13 to 2021-22:
Odisha Judicial Service Preliminary Exam
As stated earlier, the Preliminary Exam is an objective type exam with multiple choice questions, thus, this exam generally contains more memory-based questions in comparison to conceptual questions. However, the paper may also contain certain application based questions in which a brief situation will be provided to the candidates and they would have to answer it according to the options given.
Frequently asked topics in the Odisha Judicial Service Preliminary Exam
Although, it is advisable and safe to study all the subjects which have been prescribed in the syllabus, upon the analysis of the past year question papers, it becomes clear that certain topics assume relatively more importance as they have been asked very frequently in the exam.
Notably, the bare Acts of all the statutes covered in the syllabus have to be studied thoroughly by the candidates as several direct questions have been framed therefrom. The same is discussed later in detail.
Discussing every subject one by one, in Constitution of India, though it is entirely significant and none of its parts should be left unprepared by the candidates, certain parts thereof have been asked very often like the basic constitutional history covering the landmark colonial enactments leading to the framing of the present day constitution; Sources and the overall structure of the Constitution of India; Fundamental Rights (Part III), especially, Articles 14,19, 20, and 21; Directive Principles of State Policy; 9th Schedule, and; the important amendments made in the Constitution of India. The study of these topics should be accompanied by the study of all the landmark case laws and doctrines related thereto. For example, the significant case laws under Article 21 and the doctrine of pith and substance have been a constant source of questions in the exam. This paper also tests the knowledge of candidates in the field of jurisprudence by asking about different definitions and their authors.
As regards CPC, many questions have been asked so far from res judicata, decree, the different order numbers, etc. With respect to the personal laws, the Hindu Succession Act 1956 becomes extremely important as several questions have been asked from the definition clause, categories of heirs, amendment made in the statute, etc. Besides, the candidates must also study about the various kinds of will and their creators. Simply put, this entire topic cannot at all be skipped by the candidates.
Similarly, with respect to the Transfer of Property Act, 1882, the different doctrines related to the provisions of the Act, the concepts of lease and mortgage, foreclosure, etc. have inspired several questions. The Limitations Act is also another crucial subject for the exam as a large number of questions are framed from the different periods of limitation provided in the Act, the concept of adverse possession, acknowledgement, etc. It would be better to not miss any part of this statute.
From the criminal laws, several questions are raised from topics like general exceptions, theft, offences against body especially murder and culpable homicide, etc. under IPC; statutory and anticipatory bail, FIR, rights of the accused/prisoners, etc., under CrPC, and; relevance and admissibility of evidence, res gestae, presumptions, etc., under the Indian Evidence Act.
Further, the candidates must carefully study all the provisions till Section 75 of the Indian Contract Act, 1872, as these provisions contain the fundamentals of the subject from which not only the direct but also situation-based questions are asked in the exam. Apart from the same, the concepts of agency and bailment also are very important from the perspective of the exam. In the Specific Relief Act, 1963, topics like the different kinds of statutory remedies/reliefs, especially injunction, and conditions in which specific relief can or cannot be granted form a fertile area for the questions. It is advised that the aspirants must not only study these crucial topics but also have an understanding of the following:
General and broad understanding about the background of the prominent statutes, especially those of the colonial time;
Important judgements or events related to any particular law;
Prominent statutory amendments;
The date for the commencement and enforcement of the statutes;
Significant dates and time periods stipulated by or related to any law or statute, and;
Important legal terms, maxims, doctrines, and theories, as the same have been the subject of several questions in the exam.
Moreover, if any landmark judgement or news has been delivered on a particular law, which is a part of the syllabus, the candidates must also study about the same.
Types of questions in Odisha Judicial Service Preliminary Exam
The Paper contains a large number of questions directly from the bare acts of the laws enumerated in the syllabus. From the analysis of the past year’s question papers, it can be seen that several questions have been asked directly from the bare text of the Constitution of India, CPC, CrPC, Indian Evidence Act, Limitations Act, IPC, etc. For example, questions like which Article of the Constitution contains the right of minorities to establish and administrator educational institutions or which section of CrPC deals with the procedure for serving summons or which section of the Specific Relief Act provides for recovery of specific movable property, have been asked in the exam.
Moreover certain situation based questions have also been based on the revocation of offer or acceptance in the Indian Contract Act or on the provisions of IPC asking if the offence is made out in the situation given or not, etc. The paper may also follow the pattern of the questions testing logical reasoning, for instance, two or more statements would be provided to the candidates and they would be asked to identify the true statements on the basis of their legal knowledge.
Odisha Judicial Service Mains exam
Frequently asked topics
It is recommended that all the frequently asked topics mentioned in this article either for the Preliminary Exam or the Mains Exam must be prepared by the candidates from the perspective of the latter. Thus, in addition to the topics mentioned above, the following topics in their respective subjects have been asked quite often in the Mains Exam.
Procedural laws
From CrPC, several questions have been raised from topics like FIR, charges, arrest, rights of the accused, bail, jurisdiction and inherent powers of the court, powers of magistrate, etc.
From CPC, topics including res judicata, suits of civil nature, rejection of plaint, interpleader suit, jurisdiction and inherent powers of the court, essentials of plaint, etc. are frequently asked.
From the Indian Evidence Act, 1872, topics like admission and confession, estoppel, injunction, res gestae, dying declaration, hostile witness, etc. can be seen very often in the exam.
Law of Crime and Torts
From the law of crime, topics like mens rea, cruelty, dowry death, theft, capital punishment, general exceptions or defences, stages of crime, crimes against women, etc. have been asked very frequently.
From the law of torts, topics like defamation, negligence, liability of the state, exceptions or defences to tortious liability, vicarious liability, strict liability, famous doctrines, etc. have given rise to several questions.
Personal laws
From the Hindu laws, the paper is usually made out of topics like sources and schools under Hindu law, restitution of conjugal rights, adoption, judicial separation, essentials of valid marriage, divorce, rights of women in succession, minority and guardianship, etc.
From the Muslim laws, the paper usually asks questions from topics like marriage (especially nature and kinds), dower (mahr), hiba (gift), will, divorce, sources of Muslim law, maintenance, rights of women, waqf, etc.
Law of Property
From the Transfer of Property Act, 1882, Frequently Asked Questions arise from topics like mortgage and its redemption, subrogations, actionable claim, rule against perpetuity, vested and contingent interest, famous doctrine like doctrine of election, doctrine of part performance, and others, rights of buyer and seller, etc.
From the Specific Relief Act, 1963, topics like possession of immovable and movable property, enforcement of specific performance contracts, preventive reliefs, etc., source a number of questions.
From the Limitations Act, 1963, following topics are frequently asked: principles for extension of limitation period, legal disabilities, limitation period and its computation, etc.
Law of Contract
From the Indian Contract Act, 1872, topics like consent, conditions vitiating the contract, indemnity, privity of contract, consideration, etc. raise several questions.
From the Sale of Goods Act, 1930, questions are usually asked from the topics including difference between contract of sale and agreement to sell, conditions, guarantee and warranty, rights of the buyer and seller, sale and hire purchase agreement, caveat emptor, unpaid seller, surety, etc.
From the Indian Partnership Act, 1930, topics like partnership and its kinds, rights and duties of partners, dissolution of partnership firm, difference between partnership and other forms of business, etc., are frequently asked.
From the Negotiable Instruments Act, 1881, following topics are frequently asked: kinds of negotiable instruments, dishonour of cheques, endorsement, bills of exchange, etc.
Jurisprudence and Constitutional Law
From Jurisprudence, following topics are frequently asked: Austinian theory of law, different schools of jurisprudence, legal concepts like rights, possession and ownership, sources of law, precedents, HLA Hart, etc.
From constitutional law, questions mainly arise from topics like the President of India, Article 14: equality, constitutional remedies, amendments, State, part 3 of the Constitution, different organs of the government, federalism, etc.
Types of questions
As stated earlier, the Mains Examination is an essay type exam wherein detailed questions are asked. Various types of questions, right from the ‘what’ questions about concepts to direct questions asking about certain landmark case laws like Donoghue v. Stevenson (1932), Ryland v. Fletcher (1868), MC Mehta v UOI (1987), etc., are asked. The paper may also ask candidates to elaborate on a particular legal controversy involving a catena of judgements.
The paper also poses situation-based questions to the candidates and asks them to elucidate the law and solve the question accordingly. The candidates can also be asked to write short notes or essays on certain legal topics. Several questions asking the candidates to distinguish between two concepts may also be asked like in the case of partnership and company; partnership and Hindu Undivided Family (HUF); Mitakshara and Dayabhaga school of law, etc. Thus, the paper may ask a variety of questions from the candidates for which it is required that they study the syllabus and the aforementioned frequently asked topics comprehensively.
Frequently Asked Questions (FAQs) on the Odisha Judicial Service exam
Frequently Asked Questions (FAQs) on the Odisha Judicial Service Preliminary Exam
Is the pattern for the judiciary preliminary exam the same for all the states in India?
No, the pattern for the judiciary preliminary exam is not the same for all the states in India. It varies from state to state. The candidates are thus advised to read the official notifications of the exam very carefully. For Odisha, keep visiting the official website here.
Is the Preliminary Exam compulsory for all the judiciary exams across India?
Yes, all the states across India conduct the Preliminary Exam compulsorily as one of the stages of the judiciary exams.
Is the syllabus for the Preliminary Exam of all the states the same?
No, the syllabus differs from state to state. This is why the candidates must check the official notification of the respective exams. For the syllabus of the Odisha Judicial Service Preliminary Exam, please refer to the above.
Can guesswork be done in the Preliminary Exam?
No. The paper has a negative marking of 0.25 marks for every wrong answer. Thus, the candidates must not at all resort to guesswork in answering the MCQs. Only when the candidate is cent per cent sure of an answer, only then he or she should answer the question.
Frequently Asked Questions (FAQs) on the Odisha Judicial Service Mains Exam
Is the Mains Exam compulsory for all the judiciary exams across India?
Yes, all the states in India compulsorily conduct the Mains exam.
Are there any tips for improving answer writing skills?
Yes, the candidates may do the following to improve the answer writing skills:
Practice is the key. Keep writing essay type answers on the type of questions indicated above.
Try to get the answers reviewed by a third person who can give constructive feedback.
Whenever one studies any topic, he or she must write an essay on that topic which will help in setting the structure for the answers.
Practise the habit of drawing an outline of the answers before starting writing.
The candidates may take up a test series for practising answer writing.
The candidates while studying any topic must make notes in the form of an essay type answer. This will help them to organise and structure their answers along with note making.
Frequently Asked Questions (FAQs) on the interview of the Odisha Judicial Service Exam
What important qualities one must develop to ace the interview?
The interview mainly tests the personality of the candidates. Thus, one must work on one’s personality, confidence level, body language and posture, and interpersonal skills. One must communicate clearly and effectively which includes active listening also. One must be able to come across as a confident yet polite and firm yet empathetic person.
How to prepare for the interview?
Apart from the above tips and tricks, the candidates must practise speaking
in front of the mirror. It helps immensely to improve one’s personality. It is also very important to remain calm and composed during the interview. Dress appropriately, conduct yourself confidently, and communicate effectively to convey a good impression during the interview.
What types of questions can be asked in the interview?
The candidates should expect questions of all sorts in the interview. The interviewer may ask questions like introduce yourself, why chose law, short and long-term goals, strengths and weaknesses, etc. in the beginning to know about the candidate. Further, it is crucial that candidates prepare for questions about themselves also. For example, if a candidate mentions Chess as his or her favourite game, he or she must at least know the basic technical information about the game like what is the most prestigious competition of the game and who has won it, etc.
Furthermore, the interviewers may also ask questions from the syllabus as well. Thus, the candidates must be prepared for everything in the interview.
How to answer effectively?
The questions must be answered in a polite and confident manner. The candidates must try to frame the answers in a positive style and phraseology. They must always start the answers on a positive note, even if the question is stirring or provocative. It is also vital that candidates maintain a certain level of candour in answering the questions since it will not cast a good impression if the answers of the candidate sound very mechanical and crammed up. The candidates must keep in mind that all the questions are to evaluate the personality of the candidate. Thus never be too emotional or passionate or aggressive about any topic.
What one must refrain from doing in the interview?
The candidates must refrain from behaving in an over-confident or arrogant manner. Equally, they must also not come across as a timid or diffident person. A balance of both confidence and modesty is necessary.
The candidates must never interrupt the interviewer while he or she is speaking. The candidates, instead, must listen to him or her while he or she is speaking and wait for their chance to speak.
Never dress in a gaudy manner. The attire of the candidate must neither be blingy or showy nor be bland. A decent attire with formal accessories should be carried.
The candidates must refrain from cursing or speaking negatively for anything. A positive attitude must be reflected in the answers of the candidates.
Never use cuss words or abusive words in the interview.
The candidates must not break eye contact with the interviewers. In fact, they must maintain a confident, but not glaring, eye contact with the interviewers.
Never sit without waiting for the interviewers to offer a seat.
Frequently Asked Questions (FAQs) on the Odisha Judicial Service Exam : General questions
Can the Odisha Judicial Services Exam be cleared by self preparation?
Yes, it is not necessary that the candidates take up any formal coaching to prepare for this exam. The Odisha Judicial Services Exam can be cleared by self preparation by following a study schedule prepared by following the above strategy.
How many hours a day must be dedicated for preparation?
The candidate must set day-wise goals for completing the syllabus and study till the goal of the day is achieved. Generally, 5-6 hours of study a day should be appropriate for preparing for this exam. This time period may vary according to the learning capacity of the candidate and time left for the exam.
How can social media be utilized for judicial services preparation?
As mentioned above, social media can prove to be useful in preparing for this exam. The candidates can rely on reliable educational and informative websites, social media pages, YouTube channels etc.
From which year of law school should one start preparing for this exam?
Ideally, the preparation must start subject-wise and not according to the years of law school. For example, if Constitutional Law is taught in the second year of the law school, it must be studied well by the aspirant considering that it is a part of the syllabus of Odisha Judicial Services Exam.
However, for commencing dedicated preparation of the exam, one can start from the fourth or fifth year of the law school depending on the learning capacity of the candidate, burden of work in the law school and other personal and professional factors.
How can one prepare for this exam during law school?
The aspirants can prepare for this exam during the law school by firstly studying the relevant subjects in a detailed manner while it is being taught in the law school. Secondly, keep revising the relevant subjects time and again. Thirdly, keep a tab on all the important legal developments and current affairs. Build the habit of reading newspapers and practice answer writing.
Can postgraduates in law prepare for Judiciary?
Yes. The eligibility only requires a degree in law which would be satisfied by the undergraduate degree of the postgraduates in law. Thus, there is no bar on postgraduate candidates to take this exam.
How frequently should one take mock tests?
Taking up of mock tests depends on the preparation level of every candidate. However, one week of preparation and then a mock test at the end of it on the same subject or topic can be adopted as an ideal combination of preparation and practice.
When should I stop taking mock tests?
The candidates can stop taking mock tests when the deadline for the exams approaches and must focus only on their analysis in the end time.
Final words
This article, thus, not only covers the general overview about the exam but also the tips and strategy to prepare for the exam, the procedure to apply for it, the analysis of the past year question papers, and the general FAQs that may crop up in the minds of the applicants. Therefore, it is designed to guide you in every step of your preparation of the Odisha Judicial Service exam. All the best!
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
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This article is written by Shefali Chitkara. This article gives a brief overview of kidnapping and its essential ingredients, with a focus on the punishment for such an offence as mentioned in Section 363 IPC, by covering important landmark and recent judgements and illustrations to explain the same.
It has been published by Rachit Garg.
Table of Contents
Introduction
Every person has a right to life and personal liberty under Article 21 of the Constitution, and no one can forcefully and without that person’s consent be made subject to or in control of some other person. This will be considered an offence affecting the human body and the same is mentioned under Chapter XXVI of the Indian Penal Code, 1860. The offence of kidnapping is given under Sections 360 and 361 of the IPC, and the same is made punishable under Section 363 IPC. The same, when done along with other offences has also been mentioned and made punishable under Sections 363A, 364, 364A, 365, 366, 366A, 366B, 367, 368, and 369 of the IPC.
As per Schedule 1 of CrPC, this offence has been classified as cognizable, bailable, and triable by First class magistrate. The main purpose of including these provisions in the IPC is to protect the personal liberty of the citizens, primarily for the protection of children from being used in illegal or immoral activities. The word “kid” stands for a child, and “napping” means stealing.
Essentials of crime under Section 363 IPC
Section 359 states that there are two kinds of kidnapping that have been recognised by our Indian legal system, i.e., kidnapping from India (Section 360) and kidnapping from lawful guardianship (Section 361). Section 18 of the IPC defines “India” as the territory of the whole of India, excluding Jammu and Kashmir. The question of punishment under Section 363, IPC, arises when the following ingredients of Sections 360 and 361 are fulfilled:
Kidnapping from India- 360 IPC
Victim to be residing in India when an offence has been committed,
Taking the victim outside India,
Kidnapping has been done without the consent of the person kidnapped or the one who was legally authorised to consent on behalf of the victim.
Kidnapping from lawful guardianship- 361 IPC
Victim is a boy below 16 years of age or a female below 18 years of age or any other person of unsound mind,
The victim was in the custody of a lawful guardian,
There must be a taking or enticing of such a minor or a person of unsound mind.
Kidnapping is to be done without the consent of such guardian of a minor or the person of unsound mind.
The explanation to this Section clarifies the scope of a “lawful guardian,” i.e., who can be considered a lawful guardian of a child or a person of unsound mind. It is the one who is lawfully entrusted for care and custody of such a child or any other person of unsound mind.
Nature of crime under Section 363 IPC
The crime that is made punishable under Section 363 is a type of crime committed against the body or person of an individual who is taken against his/her will outside India or anywhere from the lawful guardian if he/she is a child or person of unsound mind. The act is made punishable in order to protect the rights of the people under Article 21 of the Constitution.
As per the First Schedule of the CrPC, the offence of kidnapping is cognizable, and if the police come to know about such an offence, they can arrest the accused person without a warrant. The same is true for a bailable offence i.e., bail can be granted, but kidnapping, when done in an aggravated form, has been made non-bailable.
Further, the offence of kidnapping is triable by any magistrate, and the punishment prescribed for it under Section 363 is expandable up to 7 years and with a fine.
Importance of consent under kidnapping
The offence of kidnapping becomes punishable under Section 363 IPC only when such an act is done without the consent of that person or any lawful guardian. The act becomes an offence when it involves mens rea and has been done after fulfilling the essential elements, as have been mentioned above. It should be noted that in Section 360, the consent of the victim matters, whereas in Section 361, the consent of the child who is the victim does not matter, and his consent will make no sense, thereby making the act liable under Section 363 when the consent is not taken from the lawful guardian of the child.
To make the word “consent” more clear, an exception has also been added to Section 361, which says that if an act has been done in good faith by any person who believes himself to be the father of an illegitimate child or to be a lawful guardian of a child, then it will not be covered under this Section. However, it does not cover situations wherein an act is committed with an immoral or unlawful purpose.
Punishment for kidnapping under Section 363 IPC
If an offence has been committed under Section 360, Kidnapping from India, or Section 361, Kidnapping from a lawful guardian, it can be made punishable under Section 363. The person who has been kidnapped shall be punished with simple or rigorous imprisonment, which may extend to seven years, and will also be made liable for a fine.
Various other strict punishments are mentioned for aggravated forms of kidnapping, which may even extend to the death penalty as given under Section 364A when kidnapping is done for ransom. The aggravated forms of kidnapping as given under Sections 363A to 369 of the IPC have been enumerated below:
Aggravated forms of kidnapping
Section
Title
Punishment
363A
Kidnapping or maiming a minor for begging
Imprisonment may extend to ten years and a fine
364
Kidnapping or abduction with the object to murder
Imprisonment for life or rigorous imprisonment may extend to ten years and a fine
364A
Kidnapping and abduction of a person for ransom
Death or imprisonment for life and a fine
365
Kidnapping and abduction of a person with the intention of secretly and wrongfully confining him
Imprisonment may extend to seven years and a fine
366
Kidnapping or abduction of a woman with the intention of forcing her and compelling her to marry
Imprisonment may extend to ten years and a fine
366A
Procuring by inducing any girl below 18 years of age for illicit intercourse
Imprisonment may extend to ten years and a fine
366B
Importing a girl below 21 years of age from a foreign country to India with the intention of compelling her to illicit intercourse
Imprisonment may extend to ten years and a fine
367
Kidnapping or abducting someone with the intention of subjecting that person to grievous hurt or to subject that person to slavery
Imprisonment may extend to ten years and a fine
368
Wrongfully concealing or keeping a person in confinement after kidnapping or abduction of that person
Imprisonment may extend to seven years and a fine
369
Kidnapping and abduction of a child under the age of ten in order to steal the property of that child
Imprisonment may extend to seven years and a fine
Important case laws
S. Varadarajan v. State of Madras (1965)
Facts of the case
In this case, the girl who was about to reach the age of majority and the accused were neighbours and became good friends. The girl used to call the accused person to meet her, and she was the one who proposed to the accused for marriage. They got married, but the father of the girl registered an FIR against the accused.
Issue involved
Whether the accused can be made liable for kidnapping from lawful guardianship?
Judgement
The Supreme Court has laid down the meaning of “taking” or “enticing” in this case. By looking at the facts of the case, it cannot be said that the accused in any way has encouraged the girl to leave her father’s home or has enticed or taken her away, as the girl has a sufficient sense of maturity and is not of such a tender age that she cannot understand the consequences of her act. It could not be proved that the accused had actively participated in inducing the girl, and therefore, he cannot be made liable for kidnapping.
R v. Prince (1875)
Facts of the case
In this case, a minor girl told the accused that she was a major, and thereby believing it to be true, he took her out of her father’s possession with a bonafide belief.
Issue involved
Whether the accused is liable for kidnapping from lawful guardianship?
Judgement
The Court has held that bonafide belief can be no defence to the offence of kidnapping and that the consent of the minor does not matter in the case of kidnapping from lawful guardianship; therefore, the Court upheld the conviction of the accused for kidnapping.
State of Haryana v. Raja Ram (1973)
Facts of the case
In this case, the victim was a girl of an unsound mind. Her father acted in the capacity of her lawful guardian. A man induced her to leave her father’s house and asked her to stay with him. He also started texting that girl after some time. The respondent helped that person and asked the girl to come to his house first. When the girl came to him, he took her to that person.
Issue Involved
Whether the respondent is guilty of an offence under Section 361 IPC?
Judgement
The Hon’ble Supreme Court has held that the provisions of kidnapping have been made for the protection of children and persons of unsound mind. The consent of the girl in such cases is immaterial, and thus, the respondent was made liable for kidnapping from lawful guardianship.
Thakorlal D Vadgama v. State of Gujarat (1973)
Facts of the case
In this case, there was a minor girl named Mohini, and she was under 18 years of age. The accused encouraged her to leave his father’s home and even promised to provide her with shelter and protect her always. He was successful in taking her away from her father’s lawful guardianship.
Issue involved
Whether the conduct of the accused and the act done in consequence amount to kidnapping?
Judgement
The Hon’ble Supreme Court has held that the act resulted from the inducement of the accused, and he was the one who forced the girl to do the same. Therefore, the accused was made liable for kidnapping.
Recent Case law
Issub Khan v. State, Thr. P.P. and Another (2023)
Facts of the case
In this case, the victim was a girl who was seventeen and a half years old and had accompanied the accused of her own free volition since their parents did not like their friendly relations. The girl eloped with the accused to Mumbai, where the accused was arrested. The accused was convicted by the trial court for the offence of Kidnapping from Lawful Guardianship with rigorous imprisonment of three years and a fine of Rs. 50,000. Subsequently, this application was filed to suspend the sentence and grant him bail.
Issue involved
Whether the sentence granted by the trial court for kidnapping can be suspended and the accused be granted bail?
Judgement
The High Court of Bombay observed that the trial court had failed to consider the essentials of the offence of kidnapping. The aspect of enticing or taking away the victim has been overlooked by the Trial Court in the impugned order. It could not be proved that the accused had either enticed or taken away the victim; therefore, the sentence was suspended and the accused was released on bail.
Conclusion
It can be said that the scope of the offence of “kidnapping” has been kept wide enough to cover various other menaces or acts in order to make them punishable, protect the liberty of citizens, and preserve the spirit of the Constitution. It was essential to recognise and specifically add the offences of kidnapping and abduction in order to preserve the aim with which Article 14 of the Constitution has been inserted.
With the realisation of the reasons for kidnapping and abduction, the drafters have added the aggravated forms and made them punishable as well, like kidnapping for murder, ransom, begging, etc. With the growth of society, the amendments should be considered to increase the scope of this offence and include other acts of restraint within its ambit, whether in marriage or other recognised relationships. Further, the age should also be reconsidered, considering the developing minds of the children.
Frequently Asked Questions (FAQs)
What are the two types of kidnapping?
The two different types of kidnapping mentioned under Sections 360 and 361 of the IPC are Kidnapping from India and Kidnapping from Lawful Guardianship.
Which report has suggested amendments to the definitions of kidnapping and abduction?
Section 359 tells about the two different kinds of kidnapping, and Sections 360 and 361 further talk about those two kidnappings, i.e., Kidnapping from India and Kidnapping from Lawful Guardianship.
What is the maximum punishment for kidnapping under Section 363 IPC?
The maximum punishment that can be given under Section 363 of the IPC is seven years of imprisonment.
What is the difference between kidnapping and abduction?
In the offence of kidnapping, an age limit for children has been prescribed, whereas no such age limit is mentioned for abduction. Punishment for kidnapping is mentioned in the IPC, whereas abduction is not punishable unless done with the intent to commit some other offence.
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Esha Shekhar is a lawyer in the SaaS and data privacy space. She is a Certified Information Privacy Professional for Europe Certified by International Association of Privacy Professionals.
Ms. Shekhar is Founder and Principal Advocate at ES Law Offices
She advises & Trains SMEs, MNCs, PSUs, Govt. depts on POSH and gender laws. She is also an author and has written “Understanding workplace laws for women in India”
In an interview with LawSikho, Esha Shekhar speaks about POSH and gender laws and shares insights on how to become a privacy professional
Edited excerpts from the interview below:
How did your professional journey shape up?
Esha: My professional journey has been very nonlinear in terms of what a lawyer goes through generally because I didn’t start with a typical law firm or a lawyer office journey. I didn’t get through any of the top law firms during the placement interviews. It was quite a shock for me as my CGPA and rank in the university were good.
After college, I kept applying for some jobs and I got a job as a researcher on a TV news channel show. Bloomberg India was at that point of time launching a TV show on their business news channel, which is called The Courtroom which would cover weekly news that were very relevant in the legal industry. This job role helped me to look at the law industry from the outside.
And during that one year of Bloomberg, I came to the conclusion that I do want to continue being a lawyer and I want to start with litigation because I spent a lot of time in courts.
So effectively that translated into my next three years. I worked with a law firm called Dua Associates in the litigation team and then I worked with HSA in their energy regulatory litigation team. Then I started moving into advisory slowly. And at that point of time what we did was that I along with Abhyuday and Ramanuj we had a conversation and we decided to launch a website and a platform called ClickLawyer to help connect lawyers and clients in a much more effective manner. So we spent around two years building that platform. The buildup was great. Ever since then, I have focused on being a legal entrepreneur. Now I work in three specific areas-tech contracts, data privacy and data protection work and the third area of law is POSH.
You are a certified information privacy professional for Europe. What does it mean to have this certification? What would you advise students who want to prepare for this exam?
Esha: So basically I am a certified information privacy professional in the Europe area, which basically means that I am certified to provide GDPR compliance related advisory in the Europe area because, because the CIPPE focuses on the implementation of GDPR.
Now there are different CIPP trainings. They are covering four different jurisdictions.The reason I chose Europe was because GDPR is the mother of all privacy legislations across the world. It was the first and it is the most comprehensive one. So my understanding was that if I do GDPR, and if I understand that law, well, then understanding the other laws and decoding other legislations will not be that big an issue.
CIPP is the benchmark of all privacy certifications. The recognition value is way higher. So when you say you’re a CIPP, people would know what exactly it means.
For the certification there is an examination.It is a very strict fail and pass marking for the exam. However, I would say that it’s not difficult to prepare for it. It just requires you to be thorough in your study and do it smartly. A lot of it is MCQ based but the questions are situation based. So they’re very confusing. You’ll see four options. You’ll find all four options identical. So you need to be very clear.
Data privacy, SaaS, these are the fields still shaping up in our country. So, what do you think is the significance of internships if a student is interested in these areas and how early should they start?
The earlier the, the better. The thing with the intersection of law and technology is that it’s evolving very fast.
My advice to a student is to pick up certain specific areas, which are standard areas. Something that will transcend the conversation around all emerging tech areas. I would say, start working or interning with firms who have a significant tech practice.
Moving to your other area of expertise. Tell us more about your interest in POSH and gender laws.
If you look at Indian laws, and if you look at Indian workplace laws,of course, there are gaps and a lot more can be done, but as compared to even first world countries like US, we have very good comprehensive laws when it comes to sexual harassment at workplace or maternity benefit, or Shops and Establishment Act. We have very comprehensive laws, the problem always has been how to implement it.
The problem is then it doesn’t translate into that ground level implementation and that is where my interest comes from.
You spoke of the problems with implementation of law and the Supreme Court also recently flagged some lapses in implementation of POSH Act. In your opinion, what specifically are the problems which make it difficult for the implementation of the POSH Act?
The biggest difficulty is in terms of knowledge on both sides, a lack of knowledge from the side of the entities who are supposed to implement this at the workplace, and also lack of awareness on the side of the people who the law is supposed to impact.
It is so much about the organizations to start implementing. Many of them don’t know that they have to comply or they may feel we may keep it on the back burner. That is what is the biggest problem. And this is not a problem that can be solved immediately. It’s a long term process but it also needs to start somewhere. In my last seven years of working on the law, I have seen a massive improvement in terms of now companies knowing about POSH law. Now, why did that happen? That happened because of the Companies Act 2013, there is now a provision which states that in the annual report, the directors have to put their ICC details.
Another thing that started happening was that it started becoming a part of due diligence.
Tell us about your book.
Esha: The reason I wrote the book was because I’ve been working On POSH for a very long time. There was no book in the market which focused on workplace laws for women.
So we wanted to bring the spotlight on them. We didn’t want it to be lost in the entire labor compliance. So, therefore, the idea of the book came, fortunately, as I was thinking about the book, there were other publishers who were as excited about the book, and we were grateful that Bloomsbury made an offer and me and my colleague, Neha Koshi could publish through them.
The target audience for the book was not just lawyers. It was also meant for non lawyers.
One was part, part A, which focused on the law itself. and breaking it down into easy to understand sections and part B focused on covering the judicial proceedings, the case laws.
Even ICC members can consult it because the entire inquiry has been covered in detail in the book.
If someone wants to intern at ES law offices, how can they get in?
The selection criteria that I’ve set up is that you need to mandatorily have writing experience. I would like to see the different internship experiences that one has gotten and what have you done in a particular area that you claim that you like.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Data is a piece of information collected for the purpose of processing to convey meaning, knowledge, and insight. Data can take various forms, including numbers, text, images, sounds, graphic representations, computer programmes, personal documents, and many more.
Further classification of data
Personal data
Also referred to as personally identifiable information or sensitive information, which can become a means to identify the concerned individual. Personal data encompasses a wide range of information, some of which are name, contact number, financial information, health data, biometric data, geolocation, etc.
Non-personal data
Non-personal data, also known as anonymous data, is data that cannot be used to identify an individual. Unlike personal data, it is comparatively less sensitive. Non-personal data includes weather data, traffic data, website analytics, scientific research data, and many more.
What is privacy
Privacy refers to the right and ability of an individual to control and protect personal data. It is the right of an individual to decide how and what to process their data. It is considered a fundamental right for everyone. The right to privacy under Article 21 of the Indian Constitution is a fundamental right guaranteed to all the citizens of India.
Violation of privacy
It is a violation or unauthorised intrusion of an individual’s personal information, private space, or the right to keep certain aspects of their life confidential. It mainly aims to collect confidential information.
Data privacy
Data privacy generally means the ability of a person to determine for themselves when, how, and to what extent personal information about them is shared with or communicated to others. This personal information can be one’s name, location, contact information, or online or real-world behaviour. Just as someone may wish to exclude people from a private conversation, many online users want to control or prevent certain types of personal data collection.
Importance of legislation for data privacy in India
The internet is used worldwide nowadays, and data is also being circulated on a large scale. At the same time, evolution is inextricably linked to the exchange of information and ideas. That is exactly why the free flow of data is crucial, and hence, regulation is inevitable and of paramount importance. In the age of the digital world, where data is considered the new oil and cases of data breaches have increased exponentially, it becomes the need of the hour to come up with appropriate legislation to govern and regulate the flow of data in order to protect individual’s rights to privacy.
Major data breaches of India
In the digital age, India has also experienced data breaches in the past few years. Some of them are:
Air India data breach
In May 2021, Air India reported a data breach. The personal data of around 4.5 million passengers worldwide was leaked. It happened due to a cyberattack on the service provider of Air India, SITA, which resulted in the breach of the personal data of passengers of Air India.
CAT data burglary
According to threat intelligence firm CloudSEK, personally identifiable information of around 190,000 applicants was leaked to the dark web in May 2021. Names, dates of birth, email IDs, mobile numbers, address information, candidates’ 10th and 12th grade results, details of their bachelor’s degrees, and their CAT percentile scores were all revealed in the leaked database.
Upstox data breach
Indian trading platform Upstox has openly acknowledged a breach of know-your-customer (KYC) data. Gathered by financial services companies to confirm the identity of their customers and prevent fraud or money laundering.
COVID-19 test results of Indian patients leaked online
In this data breach, around 1500 Indian citizens’ data was compromised. The lab test results of thousands of Indian patients have been leaked online by government websites. What’s particularly worrisome is that the leaked data hasn’t been put up for sale in dark web forums but is publicly accessible.
Above stated cases are only a few cases picked from a chunk of large no of data breach incidents. Many such incidents have happened in the past few years; hence, it is high time for proper legislation.
Preexisting legislations in India for data privacy
Some important provisions of Information Technology Act, 2000
Section 66-C, Punishment for Identity Theft: It states that if any person uses the electronic signature, password, or any other unique identification feature of any other person fraudulently or with dishonest intention, they will be liable for a fine of up to 1 lakh rupees and shall be sentenced to imprisonment, which may extend to 3 years.
Section 66-E, Punishment for Violation of Privacy: It says that if anyone publishes or transmits the image of a private area of any person without his or her consent and intentionally or knowingly in order to violate the privacy of that person, he or she shall be awarded imprisonment of up to 3 years or a maximum fine of up to Rs 1 lakh.
Section 68, Power of Controller to Give Directions: It gives power to the controller to pass orders or to give directions to the authority or its employee to take appropriate measures in order to comply with the provisions of IT Rules 2000.
Section 72, Penalty for Breach of Confidentiality and Privacy: It states that any person or authority who holds power under this rule and has access to any electronic record, book, register, correspondence, information, document, or other material or any sensitive data and discloses such information to another person without the consent of the concerned person shall be imprisoned for up to 2 years or with a fine of up to 1 lakh rupees.
Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011 SPDI Rules
SPDI rules were enacted by the central government in 2011, which include provisions to regulate personal data or information and sensitive personal data or information. The Act stipulates security practises and procedures for handling personal data or information and sensitive personal data or information. The rules of this Act apply to all body corporates within India and bodies outside India that have their network located in India and collect, receive, possess, store, deal with, or handle the personal information of persons in India. Only digital data comes under the ambit of this law; no data collected in offline mode is covered under this Act.
Important provisions of SPDI Act
Section 4: This section puts an obligation on every organisation and body corporate to have a privacy policy that should contain the purpose of data collection and contact information for grievance redressal.
Section 5: This section requires organisations to obtain consent, explain the purpose of the collection of data, and collect the data that is necessary.
Section 6: This section says that a body corporate shall disclose sensitive personal data or information to any third party only after seeking consent from the owner of the data, who has provided that information under a lawful contract. Although, in cases of legal obligation, personal data can be processed without prior permission.
Section 7: This section states that a body corporate may transfer sensitive personal data to any other body corporate in India or located outside India that ensures the same level of data protection as provided under SPDI rules. The transfer may be allowed if it is under contractual obligation to do so.
Section 8: This section puts an obligation on a body corporate or a person to comply with reasonable security practises and standards and have a comprehensive documented information security programme and information security policies that contain managerial, technical, operational, and physical security control measures that are commensurate with the nature of the information assets being protected.
Digital Personal Data Protection Act, 2023 (DPDPB)
The Digital Personal Data Protection Act is freestanding legislation that came into prominence in August 2023 for data privacy. It is looming legislation of utmost importance. As we have discussed earlier about the importance and need for standalone legislation governing data privacy, this Act came as a glimmer of hope.
History of Digital Personal Data Protection Act
In 2018, a committee of experts under the chairmanship of the retired Supreme Court judge, Justice BN Srikrishna, was formed by the Ministry of Electronics and Information Technology, Government of India, with the task of identifying data privacy legislation in order to improve it and make it more robust and comprehensive. In 2019, the Bill was accepted by the cabinet and passed by the Joint Parliament Committee (JPC). After reviewing it, the JPC tabled its report in December 2021, but it was withdrawn by the Indian Government. After much contemplation, the DPDP Bill 2023 was tabled, passed by the parliament, and gazetted on August 12, 2023.
Scope of the Act
Material scope
Any type of personal data processing collected in digital or non-digital form and eventually digitised will fall under the ambit of the DPDP Act. Any data made publicly available under legal authority to do so is an exception under this rule.
Territorial scope
The processing of digital personal data within the territory of India comes under the ambit of this law; it also applies to the processing of personal data outside the territory of India if such processing is connected to activity related to the offering of goods and services by data principals within the territory of India.
Definition of key terms of the Act
Data fiduciary- is the person who, in coordination with others, decides the purpose and scope of processing personal data.
Data principle- is the person whose personal data is being collected.
Data processor- means any person processing personal data on behalf of a data fiduciary.
Consent manager- a registered person on the board who acts as a single point of contact to enable a data principal to give, manage, review and withdraw her consent through an accessible, transparent and interoperable platform.
Significant data fiduciary- it is a designated class of data fiduciary by the Central Government after taking account of the volume of the personal data processed, the risk to the rights of the data principal, the potential impact on the sovereignty of India, the risk of electoral democracy and security and the public order of the state.
Processing of personal data
Consent
Consent is the foremost requirement to process the personal data of the data principal, and in the case of a child or a person with a disability who has a lawful guardian, obtain the verifiable consent of the parent of such a child or the lawful guardian. The Act requires consent to be free, i.e., the consent should be specific, informed, unambiguous, and unconditional. Also, the request for the collection of personal data made by the data fiduciary should be written in a clear and concise manner so that it is easily understood by the user. The data principal under Section 6(4) has the right to withdraw consent at any time. After the withdrawal of consent by the user, the data fiduciary shall direct the data processor who is processing the data on behalf of the data fiduciary to stop processing the personal data of the user unless it is otherwise authorised.
Notice for consent
The data fiduciary must give notice to the data principal each time consent is sought. This notice should contain details about the processing of personal data. The notice should specifically state the data being processed and the purpose of such processing. Also, the notice should explain how data principals can exercise their rights, withdraw consent, and complain to the data fiduciary and board in case of any ambiguity. The data fiduciary is obligated to make consent notices easily accessible to the data principal, either in English or any other language specified under the eighth schedule of the Indian Constitution.
Legitimate use
The Act provides a very narrow list of legitimate uses; rather, it provides “fair and reasonable purpose” and “public interest”. A data fiduciary can process the user’s data on a legitimate basis, but it is not absolute. Section 7 of the DPDP Act provides and expounds on the conditions under which such processing of data can be done; some of these include
When the data principal voluntarily consented to such use of personal data.
Under legal obligation to share individuals’ information with state or any government authority.
legally obligated by any court order.
To provide subsidies, benefits, services, certificates, licences, or permits to the data principal based on his/her prior consent or if the data is available in state-maintained records as specified by the central government.
In case of medical emergency, provide medical care.
Employment related purpose.
Cross border data transfer- the transfer of personal data of Indian citizens is allowed in all jurisdictions except those barred by the government.
Obligations of data fiduciaries under DPDP Act 2023
A data fiduciary can process personal data for lawful purposes only after getting consent (as discussed above) from the data principal. The Act also has provisions for processing the data without consent in certain cases.
The data fiduciary shall give notice prior to processing the personal data of the data principal, explaining the scope and nature of processing.
A data fiduciary can engage, appoint, use or otherwise involve a data processor to process personal data on its behalf only under a valid contract.
Appropriate technical and organisational measures should be taken to ensure effective observance of the provisions of DPDP Act.
The data fiduciary shall take reasonable security safeguards to protect the personal data in its possession and prevent personal data breaches.
If the consent is revoked by the data principal or as soon as it is reasonable to assume that the specified purpose is no longer being served, whichever is earlier, the data fiduciary shall stop processing the personal data unless retention is necessary for compliance with any law of the time being in force.
Data fiduciaries are obligated to establish an effective mechanism to redress the grievances of data principals.
Significant data fiduciary (SDF)
A data fiduciary is designated as a significant data fiduciary by the Central Government based on the volume of sensitive personal data they are processing, the risk of electoral democracy, the security of the state, etc. It is also important for a significant data fiduciary to appoint an independent data auditor to ensure compliance with the DPDP Act and to implement additional safeguards such as periodic audits.
Rights and duties of data principal
Right to access personal information:
The data principal has the right to collect from the data fiduciary the summary of personal data being processed and processing activities undertaken with the data.
The data principal can seek information about all other data fiduciaries and data processors who are involved in the processing of personal data.
Right to correction and deletion:
A data principal has the right to correction, completion, updating, and erasure of personal data.
Unless the data fiduciary is under a legal obligation to retain the data under any law in force, the data should be deleted.
Right to grievance redressal:
The data fiduciary shall have a grievance redressal mechanism that the data principal can seek in case of any omission by the data fiduciary or consent manager regarding the performance of their obligations or to exercise the rights provided under the DPDP Act.
Right to nominate:
In case of death or incapacity of the data principal, the data principal has the right to choose another person on his/her behalf in accordance with the provisions of the DPDP Act to exercise the rights.
Obligations of data principal
The data principal, while exercising his rights, shall comply with all the applicable laws for the time being in force.
The data principal shall provide correct information to the data fiduciary and shall not impersonate another person.
The data principal shall not register false or frivolous complaints with the data fiduciary or the board.
The Act exempts the application of certain provisions for data processing for:
Where the processing of personal data is under legal obligation Penalties and Adjudication
There is provision for a monetary penalty under this Act in cases of breach. The following conditions determine the penalty amount
Duration, nature, and gravity of the breach.
The type and nature of personal data breached.
Actions taken to mitigate the effects and consequences of the breach and alacrity in taking such action.
Penalties for breaching the provisions are the following:
Offence
Penalty
If the data fiduciary does not take reasonable security safeguards for the prevention of personal data breaches under sub section (5) of Section 8.
Up to two hundred and fifty crore rupees.
Breach in giving notice to the board and concerned data principal about the breach of personal data under sub-section (6) of Section 8.
Up to two hundred crore rupees
If additional obligations in relation to children under Section 9 are not taken.
Up to two hundred crore rupees.
Additional obligations of the significant data fiduciary under Section 10 are not met.
May extend to one hundred and fifty crore rupees.
Breach of observance of duties under Section 15 of the Act.
May extend to ten thousand rupees.
If any term voluntarily accepted by the board under Section 32 is breached.
Up to the extent applicable for the breach in respect of which the proceedings under Section 28 were instituted.
Any other provision of this Act is breached.
May extend to fifty crore rupees.
Concerns related to DPDP Act
While this law is much needed, the ambiguity and loopholes in it cannot be denied at the same time. There are many provisions that are a point of debate and concern among legal experts, especially the exemptions under this law. Let’s understand some key concerns about this law.
The government’s exemption under this law results in giving broad power
Under the law, the government has the power to issue notification to exempt any of its authority under the ambit of this law on the grounds of integrity of India, security of the state, maintaining public order, etc., which means that the government agency can collect personal data ignoring the safeguards provided under the DPDP Act for any purpose they want. There is also no set timeline for the government to retain personal data; it can retain the data for an unlimited period, which means the government has complete authority for mass surveillance. Also, processing personal data for investigative purposes can be done without government notice. So, it is affecting the privacy of citizens in one way or another.
Content blocking power of government
Under Section 37 of the DPDP Act, the government, on advice of the data protection board, can block access to websites or content in the interest of the general public. The phrase “in the interest of the general public” is very vague and not defined properly in the Act. The government has the same controversial blocking power under Section 69 of the IT Act 2000, which also gives power to the central government to block information on the grounds of sovereignty and integrity of India, security of the state, etc.
Right To Information Act
One of the major concerns under the DPDP Act is the amendment of the RTI Act. Section 44(3) of the DPDP Act amends Section 8(1)(j) of the RTI Act, which states that the government is under no obligation to provide citizens with any information related to personal information, the disclosure of which has no relationship to public interest or activity, provided that any information that cannot be denied to parliament should also not be denied to any person. But after amendments made under the DPDP Act, the scope of information that is exempt from disclosure is enlarged, which means the government is not obliged to provide information about any activity that has relevance to the public interest. Now officers are more likely to deny RTI requests, which will ultimately reduce transparency.
Compensation for victims
Victims of data breaches do not get any compensation for the losses they have incurred. Although the Act provides monetary punishment for data fiduciaries in cases of data breaches, it also removes Section 43A of the IT Act 2000, which provides for such compensation.
Monetary punishment measures for data principal
The user is charged Rs 10,000 by the Data Protection Board as a penalty in case of breach of any data principal’s obligation under the Act. There are no such provisions, even in the GDPR, which is considered the best data privacy law. The Act is meant for users, so this is definitely a concern that the government should look into.
Anonymised data
The Act is silent about anonymised personal data, which seems to be a problem because anonymised personal data can also be processed to infer details about an individual, so the government should regulate the anonymized personal data too.
The above mentioned are some of the key concerns that the government should take into consideration and rectify.
Conclusion
The DPDP Act is indeed a step towards becoming a safe digital economy. It is a significant step towards solidifying India’s position as a global innovation hub. In today’s world, when data privacy is an issue; this law is of paramount importance, but owing to the fact that the Act is well structured with some flavour of GDPR, it has some loopholes and demerits too, which the government should look into and shall focus on improvising the law. Although the framework looks good and the Act has been passed but not enacted yet, it will be interesting to see how the Act is implemented and regulated in the future.
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Mob lynching is a gruesome act that involves a group of people who take the law into their own hands to punish a suspected perpetrator. Those who commits this condemnable act often believe in rumours spread by conservative people, which is usually based on religion, caste, etc. This horrendous act posed a grave threat to the state of law and order, human rights, and social solidarity. In this article, the writer wants to discuss the causes and consequences of mob lynching in India, the legal mechanisms developed by the states and the guidelines given by the Supreme Court with reference to important case laws and prevailing challenges and solutions.
Causes of mob lynching in India
The causes of mob lynching incidents in India depend on various aspects, including but not limited to:
Rumors- Information related to sensitive issues like child abduction, cattle theft, religion, and caste hatred, which is usually spread through social-media often by fake accounts, fueled the mob to take the law into their own hands against the perpetrator who was wrongfully accused of crimes.
Social division- India is a diverse country where people of different religions, caste and cultures reside. These divisions led to the practise of different cultures and even a slight misinformation led people to resort to violence against marginalised sections.
Distrust in the legal system- The famous quote “justice delayed, justice denied,” which means lengthy investigation and court proceedings, develops a lack of trust in the police and the judicial system, which often leads some individuals to take the law into their own hands on the perception that they will not get justice through the prevailing legal mechanism.
Political vendetta- Certain political parties, to fulfil their rivalries or for the vote bank, use the tactics of incitement through a series of provoking speeches and create bitter or feudal tendencies among groups of people based on religion and caste.
Impact of mob lynching in India
The mob lynching incidents are not limited to victims; they affect society as a whole. It shows a lack of conscience in certain people in India, which is deeply heart-wrenching. Some of the major impacts are:
Disrupts unity in diversity- India claims to be the country with the motto “unity in diversity,” where different religions, castes, and cultures can reside peacefully. Cases of mob lynching show a lack of unity in diversity. This shows a lack of conscience in the group of people who participated, even those who supported these mobs.
Fear environment- The rise in mob lynching cases creates an environment of fear, especially among minorities. According to the Indian Spend analysis, in 2020, India reported 22 incidents of mob lynching, resulting in 22 deaths.
Loss of human life- There is also a famous quote “justice hurried, justice buried”. It is said that life is the “gift of god” and should be handled with care and the cases of mob lynching act as a dagger to such a precious gift because they are based on rumours.
Infringes rule of law- Article 21 in the Constitution of India provides “the protection of life and personal liberty of an individual”. The mob lynching cases infringe on the rights of individuals and undermine the rule of law and justice. Also, such acts bypass the legal principle of “innocent until proven guilty”.
Case-studies
Pehlu Khan lynching case (2017): Pehlu Khan (55-year old), a dairy farmer, and his son had purchased cows at a cattle fair in Alwar, Rajasthan. While they were transporting cows, they were beaten by cow-vigilantes which led to Pehlu Khan’s death after he succumbed to injuries in a hospital. In August 2019, the Sessions Court acquitted the accused due to a lack of evidence and a lapse in the police investigation. These kinds of decisions develop a lack of trust in law enforcement agencies.
Palghar Lynching Case (2020): On April 16, 2020, a WhatsApp rumour spread that thieves were roaming in Gadchinchale Village, Palghar District, Maharashtra, India. The mob groups, under such pretext, captured the three people—two sadhus and one driver—and killed them.
G.Krishnaiah (IAS Officer) lynching case: On December 5, 1994, a mob of 5,000 people charged towards the vehicle of Gopalganj District Magistrate G. Krishaniah pulled him out of his car. The mob hit him, causing multiple injuries and, lastly, shot a bullet in his head.
Legal mechanism in India against mob lynching
There is no specific mechanism in India against the perpetrators of mob lynching but the person who are involved in such horrendous act will be dealt according to the various provisions and guidelines-
The Indian Penal Code, 1860
Indian Penal Code – Several sections of the IPC can be assailed against the perpetrators in cases of mob lynching:
Section 302 (Murder), Section 307 (Attempt to murder), and Section 323 (Voluntary causing hurt) can be invoked in cases of mob lynching leading to death or injury.
Section 153A (Promoting enmity between different groups on grounds of religion, race, caste, place of birth, etc.) and Section 295A (Defining a place of worship with intent to insult the religion of any class) can be invoked against the perpetrators who provoke or incite to outrage the communal tensions.
Section 34 (Act done by several people in furtherance of common intention); (Unlawful Assembly); Section 142 (Being member of unlawful assembly); Section 143 (Punishment); Section 144 (Joining unlawful assembly armed with deadly weapon); Section 146 (Rioting); Section 147 (Punishment for rioting); Section 148 (Rioting, armed with deadly weapon); Section 149 (Every member of unlawful assembly guilty of offence committed in prosecution of common object).
The Code of Criminal Procedure, 1973
The Code of Criminal Procedure, 1973 (CrPC) provides preventive action by the police to maintain law and order, wherein Section 149 (Police to prevent cognizable offences); Section 150 (Information of design to commit cognizable offences); and Section 154 (Arrest to prevent the commission of cognizable offences) CrPC also provides, under Section 154, the police officer’s power to investigate in cases of cognizable offence.
Supreme Court guidelines against mob lynching incidents.
The Supreme Court issued comprehensive guidelines in 2018 due to the increase in mob lynching cases to all states/UTs for adopting effective measures to prevent and curb such incidents. The guidelines are as follows:
The state governments shall designate a senior police officer, not below the rank of superintendent of police, as a nodal officer in each district. Such nodal officer shall be assisted by one of the DSP rank officers in the district in taking measures to prevent incidents of mob violence and lynching. They shall constitute a special task force so as to procure intelligence reports about the people who are likely to commit such crimes or who are involved in hate speeches, provocative statements and fake news.
The state governments shall forthwith identify districts, Sub-divisions and villages where instances of mob lynching have been reported in the recent past.
The Secretary, Home Department, of the concerned states shall issue directives/advisories to the nodal officers of the concerned districts for ensuring that the officer in charge of the police station is extra-cautious in their respective jurisdiction.
The designated Nodal officer shall hold regular meetings (at least once a month) with the local intelligence units in the district along with all station house officers of the district to take preventive measures against any dissemination of information that might incite mob violence.
Under Section 129 of CrPC, it shall be the duty of police officer not below the rank of sub-inspector to disperse any unlawful assembly or any assembly of five or more persons who are likely to cause disturbance of public peace or are likely to create havoc through lynching.
The Director General of Police shall issue a circular to the Superintendents of Police with regard to police patrolling in those areas where incidents have been reported in the past.
The state governments shall conduct a public awareness campaign on radio, television and other media platforms, including the official websites of the Home Department and police of the states, about the impact of lynching and violations of rule of law.
All law enforcement agencies of the concerned states shall monitor the social media platform and shall take action according to Information Technology Act, 2000 and other relevant laws to curb and stop dissemination of information that is likely to outrage mob violence and lynching.
If any incidents of lynching took place, then the jurisdictional police station shall immediately lodge an FIR without any delay under the relevant provisions of IPC or other provisions of law and further intimate to nodal officer in the district, who shall, in return, ensure that there is no further harassment of the family members of the victim(s).
The state governments shall prepare a victim compensation scheme in light of the provisions of Section 357A of CrPC.
If the concerned state governments or police officers fail to comply with the guidelines given by the Supreme Court in order to prevent or facilitate expeditious trial of any crime of mob lynching, the same shall be considered as an act of deliberate negligence and misconduct for which appropriate action must be taken against him
Challenges and solutions
Lack of education and awareness- In India, many religious conservatives teach hatred about each other’s religion, which is instilled in the minds of people, especially those who have been with them since early childhood.
The Central and state governments should monitor those agencies that create a milieu of hatred and try to curb such teachings. They should launch awareness campaigns promptly.
The Preamble of the Indian Constitution strives towards promoting fraternity among individuals. Recently, the Karnataka government has made it mandatory for students and teachers in all educational institutions in the state to read aloud the preamble of the Constitution of India during morning assembly and also take an oath to adopt the principles enshrined in the document in their daily lives. “The reading has been made compulsory to make children aware of the objectives of the Indian Constitution.” 2
Strengthening legal mechanisms- The existing legal mechanism is not specific to mob lynching, which hinders a speedy trial. The existing laws, such as the Indian Penal Code, 1860, and the Code of Criminal Procedure, 1973, lead to the longevity of cases. Also, prosecuting those who are involved in mob lynching remains a challenge due to various reasons, such as threats to witnesses, influence of political groups, difficulties in collecting evidence, etc.
There have been instances where law enforcement agencies have not followed the guidelines given by the Supreme Court in 2018 due to political pressure or communal bias. There have been cases where the police have not registered FIRs, delayed the proper investigation, and fabricated evidence. Also, there have been instances where the court has granted bail to the perpetrators of mob lynching. For example, in the G. Krishnaiah case, the main accused, Anand Mohan Singh, has been released by the Patna High Court due to an amendment in Prison Manual by the Bihar State Government. It shows political influence to release such goons to fulfil their political vendetta.
The state governments should make provisions that provide speedy trials, protection, and compensation to victims. They should conduct mock drills of police officers to handle such situations. They should teach the police authorities about the values of the Constitution so they can register FIRs and lawfully conduct investigations.
Many state governments have made laws to curb such horrendous acts, such as in Rajasthan, Manipur, and West Bengal, and provide stringent punishment. Other state governments should take lessons and prepare specific laws to curb such menace.
Media responsibility- The media personnel should provide genuine news to the general public. It is said that the media is the fourth pillar of democracy and if the media is spreading false news and rumours for the sake of the Television Rating Programme (TRP), then it hampers democracy in India.
The media should not be influenced by political parties and telecast the truth without bias or prejudice. The state government should create awareness programmes through the media and also make laws for the protection of media personnel.
Information technology law- There are certain social media platforms, such as Facebook and WhatsApp, that are being used by conservatives to provoke mob lynching. For example, in the Palghar lynching case, there was a rumour that some thieves had entered the village and on the pretext of that, two Sadhus and one driver were killed by the mob.
The Information Technology Act, 2000 and its amendments have made proper guidelines to monitor and check these social media platforms, but despite such laws, there is an incident like Palghar. Hence, the state government should make a pact with such platforms to track perpetrators who are responsible for spreading fake information, whereby they will get punishment for influencing such horrendous acts.
Conclusion
Mob lynching in India is a grave issue that threatens the democratic values of Indian society, disrupts objectives of Preamble of Indian Constitution, undermines the rule of law, Social solidarity, etc. Such incidents create an atmosphere of fear, especially among minorities. There are legal mechanisms to combat such menaces, but the absence of specific laws leads to the longevity of cases. Existing guidelines of the Supreme Court have not been properly implemented, for example, in the Palghar Lynching case, where proper investigation has not been done, and in the G. Krishaniah case, the release of the main accused. These kinds of cases erode trust in law enforcement agencies, which is not good for developing countries like India. It may show India’s lack of credibility in its justice delivery system to victims and their family members. There is a famous quote “Those who do not learn from the past will repeat itself”. If India wants to uphold its commitment to justice, human rights and the rule of law, then it must focus on strengthening education and social awareness, instilling conscience, and strengthening legal mechanisms.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
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This article is written by Gautam Badlani. It provides a detailed analysis of the National Herald case. This article explains all the legal developments concerning the National Herald case, along with the timeline. The article also explains all the provisions of the Companies Act and the Code of Civil Procedure that are relevant to the National Herald case.
It has been published by Rachit Garg.
Table of Contents
Introduction
Corruption in public and government offices has become very rampant in the past few decades. It has become difficult to keep a check on these corrupt activities. Public money is circulated through fraudulent transactions and it is transferred through various modes so that the original source becomes untraceable.
Many corruption scams have come to light in the past few years which shook the conscience of the country. Even when the scams are uncovered, the authorities and courts are helpless as they are unable to trace back the misappropriated funds. Political parties engage in finger-pointing and try to shift the blame for the incompetence in the system to each other. One such scam is the National Herald case.
Background of the case
The Associated Journals Limited published three newspapers. The National Herald was published in English, Navjeevan in Hindi and Quami Awaz in Urdu. The National Herald was started in 1938 by the former Prime Minister Jawaharlal Nehru and it became a mouthpiece of the Congress Party against British Rule.
The newspaper was widely read by the Indians and due to its popularity, it was banned by the Britishers during the Quit India Movement. Even after independence, the newspaper served as the mouthpiece of Congress leaders such as former Prime Minister Indira Gandhi.
However, Associated Journals stopped publishing the National Herald in 2008 due to financial losses. The publication of other 2 newspapers was also stopped. The company entered into a read estate business and acquired properties in Lucknow, Mumbai and Delhi.
Attempts were made by the Congress party to revive the newspapers. The Congress extended interest free loans to the company out of the party funds. Around 90 crores were lent to the company. Young India, a private company, was incorporated by Congress leader Rahul Gandhi in the year 2010. Young India bought the loan granted to Associated Journals. After purchasing the loan, Young India demanded equity shares of Associated Journals for settlement. Subsequently, a resolution was passed by the Congress Committee for the allotment of equity shares of Associate Journals to Young India.
However, the allotment of equity shares became controversial because the Associated Journals had assets worth more than 90 crores and the loan could have been paid off by selling the assets. There was no need to allot the equity shares. It was alleged that the equity shares and ownership of Associated Journals was sold to Young India at a very low price.
Another issue that arose out of the deal was that the Congress Party, being a political party, is legally prohibited from entering into commercial transactions. Political parties are governed by the provisions of Representation of the People Act, 1951 which clearly stipulates that a political party cannot offer interest-free loans to any commercial enterprise. However, the Congress defended the transactions by stating that the transactions were merely for the revival of the historical newspaper and were not meant for commercial gains.
An overview of Associated Journals Limited (AJL)
Associated Journals Limited, a non-governmental agency, was incorporated in 1937. It is engaged in the business of publishing and printing and also manufactures various types of paper products. It is a not for profit company and does not pay any dividends to its shareholders.
The registered office of the company is situated in Delhi. The office is situated at Herald House, New Delhi. The AJL was started by around 5000 freedom fighters to be a mouthpiece of the freedom movement. These freedom fighters were the first shareholders of the company. Former Prime Minister Jawaharlal Nehru had signed the Memorandum of Association of AJL. The company publishes the National Herald in English, the Navjeevan newspaper in Hindi and the Quami Awaz in Urdu
Young India
Young India, a private company incorporated in the year 2010 by Rahul Gandhi, is a company limited by guarantee. Rahul Gandhi became a Director of the company in 2010 while Sonia Gandhi joined the Board of Directors in 2011. Collectively, the Gandhis own nearly 76% of the company’s shares and the remaining 24% are held by Oscar Fernandex and Moti Lal Vohra. Both own 12 percent shares. The Directors have often defended Young India’s transactions with AJL by stating that the company is a not-for-profit company and the transactions undertaken by it did not have any commercial purpose.
Section 8 of the Companies Act
Young India was incorporated under Section 25 of the Companies Act, 1956. Section 8 of the Companies Act, 2013 is the corresponding provision of Section 25 of the 1956 Act.
Section 8 governs incorporation of companies for charitable purposes and states that any persons or group of persons can register as a company under this section if it fulfils the following conditions:
It promotes art, commerce, science, sports, social welfare or any other similar purpose or
It uses its income for the promotion of such purposes
It prohibits the payment of dividends to its shareholders.
A company incorporated under Section 8 enjoys the same privileges and powers which are vested in a limited company. However, a Section 8 company cannot amend or modify its Memorandum of Association without the prior permission of the Central Government.
It is pertinent to note that a company which is registered under Section 8 can only merge or amalgamate with another company registered under this Section. If a company registered under Section 8 fails to fulfil the obligations enumerated in this Section, then such a company can be punished with a fine of 1 crores. Moreover, the Directors of such defaulting companies can be punished with a fine of 25 lakhs.
An existing company may also register under Section 8 if the Central Government is satisfied that the company fulfils the conditions of registration under Section 8. In such cases the Central Government facilitated the registration of the existing company by granting a licence of registration under Section 8. The Central Government may also revoke the licence or registration granted under Section 8 if the company contravenes or fails to fulfil the obligations provided under this Section. Moreover, the licence may also be revoked if the affairs of the company are conducted in a manner which is prejudicial to the interests of the general public.
Allegations of corruption and the investigation
In 2012, allegations of corruption were made by Subramaniam Swamy against the leaders and officials of Young India and Indian National Congress. Subramaniam Swamy is a Member of Parliament and a political leader. He alleged that properties worth 2000 crores belonging to AJL were transferred for a nominal amount of 50 lakhs. He pleaded that the transfer was made at the behest of the Directors of Young India. Swamy alleged that the Gandhis, who are the major shareholders of Young India, used Young India to fraudulently acquire the assets and properties of AJL.
The All India Congress Committee authorised Rs. 90 crore loan to be written off for the equity transaction of 50 lakhs. Swamy contended that the loan was written off for such a disproportionate transfer because the assets of AJL had been misappropriated under the veil of the equity transaction. Allegations of corruption were made against the Gandhis, Sam Pitroda and Saman Dubey. They were accused of cheating, criminal breach of trust and misappropriation of funds.
The Income Tax Department initiated investigation against the accused persons on the basis of the complaint by Swamy. The Department found that Rahul Gandhi had not disclosed that he was the Director of Young India during the 2011-12 income tax assessment. Thus, he concealed his real income from the Department. The Income Tax Department could not assess the actual liabilities of the Gandhis due to the non-disclosure of material facts relating to Young India.
The Enforcement Directorate (ED) also started investigation against the Gandhis on the basis of the complaint filed by Swamy. The ED was investigating financial irregularities in the management of Young India. Proceedings were initiated under the Prevention of Money Laundering (PMLA) Act of 2002 against the Gandhis and other officials of Young India. The ED also issued summons to the Gandhis.
In the course of its investigation, the ED sealed multiple offices of Young India located in Delhi, Mumbai and Lucknow. The ED also attached National Herald’s properties located in Gurugram. The Gurugram properties were worth nearly Rs. 64 crore. The properties were attached under the provisions of the PMLA Act. In 2020, the ED attached the Mumbai properties of National Herald which are worth nearly Rs. 16 crores.
Income Tax Act
The All India Congress Committee had given a loan to Young India. It is pertinent to note that, as per the Income Tax Act, 1961, a political party cannot enter into a financial transaction with a third party. One of the contentions raised by Subramaniam Swamy was that the All India Congress Committee had violated the provisions of the Representation of People Act, 1951, and the Income Tax Act, 1961, by advancing the loan to Young India.
Section 13A of the Income Tax Act provides that a political party can only receive voluntary contributions. Section 29A of the Representation of People Act defines a political party as any group or association of persons identifying as a political party and registered with the Election Commission of India.
Accused persons
The persons accused of corruption and fraud in the National Herald case include Rahul Gandhi and Sonia Gandhi, who jointly own 76% of Young India’s shares. Besides the Gandhis, Motilal Vohra, who was the treasurer of the Congress party at the time when the stock of AJL was transferred to Young India, was also charged with corruption and criminal misappropriation. Motilal Vohra was also the managing director of AJL in 2003. Other accused persons include Oscar Fernandes and Saman Dubey.
Court proceedings
Trial Court
On the basis of the complaint filed by Subramaniam Swamy, the Delhi Metropolitan Magistrate summoned the witnesses and recorded the arguments. The Court took on record the evidence produced by both the sides and issued summons to Sonia Gandhi and Rahul Gandhi.
On the basis of Swamy’s complaint, an investigation was also initiated by ED. The Patiala House Court, Delhi granted unconditional bail to all the accused in the Herald case in 2015.
Subsequently, in 2018, Swamy filed an application requesting the Court to take additional evidence on record. The application was filed under Section 91 of the Code of Criminal Procedure, 1973. Section 91 empowers the Courts and officers in charge of police stations to summon witnesses and direct them to produce documents. It thus regulates the power of the Courts to take evidence on record.
In 2021, another application was filed by Swamy before the Trial Court praying for the admission of additional evidence. This application was also rejected. Swamy approached the Delhi High Court against the decision and pleaded that he was entitled to submit additional evidence under Section 244 of the Code of Criminal Procedure (CrPC). Section 244 deals with the power of the Magistrate to take on record the evidence produced by the prospection.
High Court
The summons issued against the Gandhis by the ED were stayed by the High Court in July 2014. The Gandhis had filed a suit before the Delhi High Court praying for the quashing of the proceedings initiated against them by the ED. While the High Court stayed the summons, it refused to quash the proceedings against them. The High Court observed that the investigation by the ED did not appear to be politically motivated. Thus, the Trial Court continued with the proceedings.
The High Court, while refusing to quash the proceedings, also made certain observations on the merits of the case. The Court pointed that the allegations prima facie indicated towards fraudulent transactions and should be carefully examined. The Court found that there were certain elements of misappropriation present in the financial deals between Associated Journals Limited and Young India.
Supreme Court
After the High Court refused to quash the proceedings, the Gandhis filed a petition before the Supreme Court of India, praying for the quashing of the proceedings.
The Supreme Court refused to quash the proceedings against the Gandhis and 5 other political leaders. The Court asked the political leaders to raise their contentions before the Trial Court.
The Court, however, did grant some relief to the Gandhis. It expunged the observations made by the Delhi High Court on the factual matrix of the case. The High Court’s view regarding the criminal intent of the accused was also expunged. Moreover, the Supreme Court also exempted the accused from making personal appearances before the Magistrate.
Eviction of AJL published
In 2018, the Land and Development Office passed an order for the eviction of AJL from the ITO office in Delhi under the Public Premises Act, 1971. The Land and Development Office stated that since no press had been functioning in the office for the past 10 years, the AJL was to be evicted from the premises. The premises were being used by AJL for commercial purposes, which was a violation of the terms of the lease deed. The perpetual lease had been granted to AJL in 1962. The Central Government issued an order revoking the lease granted to AJL.
AJL approached the Delhi High Court against the eviction order. In February 2019, the High Court dismissed the petition and refused to stay the eviction order. The decision of the single bench was upheld by the division bench. The High Court was of the view that the acquisition of AJL’s shares by Young India was a surreptitious transfer made to serve the lucrative interests of Young India.
Subsequently, AJL approached the Supreme Court. AJL pleaded that the ITO premises were being used for publishing the digital version of National Herald, Navjivan and Qaumi Awaz. In April 2019, the Supreme Court stayed the eviction order. The Court also stayed further proceedings against AJL under the Public Premises Act. The Court stated that it will have to examine whether the transfer of shares of AJL to Young India constituted a violation of the lease terms and it could uphold the eviction order only after the issue was determined.
Charges framed
The Delhi Metropolitan Magistrate had found that seven persons were prima facie guilty of offences under Sections 403, 406, 420 and 120B of the Indian Penal Code (IPC). 1860. Young India was also one of the seven accused. The Court had found that these persons had taken part in a criminal conspiracy to unlawfully acquire the property of AJL.
Section 403 of the IPC deals with dishonest misappropriation of property. If a person dishonestly misappropriates any moveable property or dishonestly converts such property to his own use, then he can be punished with up to 2 years of imprisonment and/or fine. The accused persons had allegedly misappropriated the property of AJL.
Section 406 of the IPC provides that a person committing a criminal breach of trust shall be punished with up to 3 years of imprisonment and/or with a fine. When any person is entrusted with a property or any other thing and the person converts or uses the property in a dishonest and unlawful manner, it is known as a criminal breach of trust.
Section 420 of the IPC deals with cheating. It provides that if a person cheats and dishonestly induces another person to transfer, or to destroy or alter any valuable thing, he would be punishable with up to 7 years of imprisonment and with a fine. It is pertinent to note that Section 420 is more stringent than Sections 403 and 406. Section 420 mandates both imprisonment as well as a fine for the offender, while Sections 403 and 406 leave it at the discretion of the court to impose either imprisonment or a fine or both, depending on the circumstances of the case.
Section 120B of the IPC deals with the offence of criminal conspiracy. It provides that a person who criminally conspires to commit any offence punishable with death or with imprisonment for 2 years or more, including imprisonment for life, shall be punished as if he abetted the offence. For conspiring to commit any other offence, the conspirator shall be punishable with up to 6 months of imprisonment, a fine or both.
Attachment of properties by ED
In November 2023, the Enforcement Directorate attached properties worth Rs. 751 crores in connection with the National Herald case. The ED had issued a provisional order against AJL and Young India. The National Herald’s office premises in Delhi, the Herald House in Mumbai and Nehru Bhawan near Kaiserbagh in Lucknow were attached by the ED.
Claims made by ED
The ED claimed that Young India possessed proceeds of crime worth more than 90 crores in the form of equity investments in AJL. The ED claimed that first properties worth crores were given to AJL at concessional rates for the purpose of publishing its newspapers. However, in 2008, AJL stopped the publication of the newspaper and used the land for commercial purposes.
AJL owed a loan of over 90 crores to the All India Congress Committee but this was treated as non-recoverable and the loan was sold by the Committee to Young India for a mere sum of Rs 50 lakhs. The ED claimed that this sale was illegal as Young India did not have any source of income from which it could pay 50 lakh rupees to the All India Congress Committee (AICC). Through the sale, the office bearers of AJL and the AICC had cheated the shareholder of AJL.
After the sale of the loan, Young India demanded that either the loan be repaid by AJL or the shares of AJL be issued to Young India. Subsequently, AJL passed a resolution increasing its share capital. The resolution was passed at an extraordinary meeting. Shares of AJL were issued to Young India and AJL became a subsidiary of Young India.
Questions over the attachment
Several questions were raised about the legitimacy of the attachment made by the ED. The attachment was made on the basis of a provisional order made by the ED under the provisions of the Prevention of Money Laundering Act. However, under the Money Laundering Act, ED can act only on the basis of a predicate offence. However, since the alleged proceeds of crime were not established to be in Young India’s possession, a predicate offence was not clearly made out.
Stand of Congress Party
The Congress Party denied all the allegations made by the ED. It stated that the transactions between Young India and AJL were mere commercial transactions, and there was no cheating or fraud involved in them.
The party also questioned the locus standi of Subramaniam Swamy to file the complaint against Young India. The ED had acted on the basis of the process initiated on Subramaniam Swamy’s complaint. However, the party stated that Subramaniam Swamy was not aggrieved by the transaction in any manner and allegations of fraud and cheating could only be raised by an aggrieved person.
Conclusion
The National Herald case has been heard at various forums including the High Court and the Supreme Court. However, no proper remedy has been provided to the shareholders of AJL. The aggrieved shareholders have been waiting for years to recover their money. Evidence is being recorded by the Trial Court and it is still unsure whether Swamy has the locus standi to challenge the legality of the transactions between AJL and Young India.
Such inordinate delays shake the foundation of the public trust in the administration of justice. Special courts should be set up to investigate large-scale scams involving public funds and corporate frauds. The Special Courts should be presided over by experts in the field of corporate and commercial transactions.
Frequently Asked Questions (FAQs)
What are some of the biggest corruption scams in India?
Some of the biggest corruption scams are
2G Spectrum case: In this case, the 2G Spectrum was allotted to selected private corporations at very low prices. The allotment price was below the market price. In Union of India v. Centre (2012), the Supreme Court of India held that the 2G Spectrum allocation had several irregularities and thus was illegal. The Comptroller and Auditor General of India reported that the value of the 2G Spectrum was more than 1.7 crores. This scam was widely reported by national and international media.
Coal scam: In this scam, various irregularities were discovered in the allotment of Coal blocks by the government. The Central Bureau of Investigation was entrusted to investigate the case and it framed charges against the public officials under the Prevention of Corruption Act. A Special CBI Court conducted the trial and found the former coal secretary to be guilty. The coal secretary was sentenced to 3 years of imprisonment.
The coal scam had major repercussions for the Indian coal industries. Due to the scam, investors were unwilling to invest in the Indian coal industry. Resultantly, the dependence on coal imports increased and the domestic industry suffered heavy loses.
Who published the National Herald Newspaper?
The National Herald newspaper was published by Associated Journals Limited. However, the company stopped publishing the newspaper in 2008 due to losses. Attempts were made to revive the newspaper by starting digital publication in 2016.
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This article has been written by Sarthak Mittal. This article aims to cover all the reasonable restrictions related to the fundamental rights provided in the Constitution of India. The article delves into the rationale behind the inception of these reasonable restrictions and also discusses the extent and scope of such restrictions. This article also expounds upon the various amendments made to such reasonable restrictions.
It has been published by Rachit Garg.
Table of Contents
Introduction
James Madison, popularly known as the father of the U.S. Constitution, rightly pointed out that, “If Men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and the next place, oblige it to control itself.” In the spirit of the given statement, it can be observed that our Indian Constitution is a special document that defines relations between the state and its citizens. The Constitution provides for fundamental rights, which are restrictions on the state. The state has to not only respect but also protect the fundamental rights of citizens. Further, these fundamental rights are curbed by some reasonable restrictions so that, the balance in society is not distorted by the unreasonable acts committed under the garb of such fundamental rights.
Why are reasonable restrictions needed
The Constitution of India,1950 embodies all the fundamental rights in Part III. The said part of the Constitution, through Article 19, confers six rights on Indian citizens, which form the edifice of a democratic nation. These six rights are, namely:
Right to freedom of speech and expression
Right to assemble peacefully and without arms
Right to form associations, unions or co-operative societies
Right to move freely throughout the territory of India
Right to reside and settle in any part of the territory of India
Right to practice any profession or to carry out any occupation, trade or business.
It is pertinent to note that none of these rights are absolute. All six rights provided under clause (1) of Article 19 can be abridged under Article 19 clause (2) to clause (6).
All of these rights are embodied in widely worded provisions, thus it is imperative to impose reasonable restrictions to avoid misuse of the given provisions. Thereby, clauses (2) to (6) provide for various grounds on the basis of which these rights can be restricted. Apart from the various grounds, all the given clauses also provide that the restrictions that are to be imposed should be ‘reasonable’. If reasonable restrictions are not imposed, these rights could be used wrongly. It is pertinent to note that the word ‘reasonable’ preceding the word ‘restriction’ means that the restrictions have the guiding force of logic and not arbitrariness. The word ‘reasonable’ in itself ensures that the restrictions should not be of an excessive nature so as to harm the public interest. Each restriction given under Article 19 is backed by sound reasoning arising out of legislative deliberations.
What are reasonable restrictions in the Indian Constitution
In the Indian Constitution, the word ‘reasonable restrictions’ appears only in Article 19. The expression ‘reasonable restriction’ has not been defined anywhere in the Constitution. Further, in the case of State of Madras v. V.G. Row (1952), the Supreme Court held that the expression ‘reasonable restriction’ can not be reduced to a specific definition nor can a cut-and-dried test be developed to answer whether a restriction is reasonable or not. The test would vary from law to law.
How can fundamental freedoms be restricted
If we carefully peruse Article 19, we can observe that the freedoms given in Article 19 can only be restricted by law. The given law can be an existing law or it can be a new law legislated by the state. The word ‘existing law’ has been defined in Article 366(10) of the Indian Constitution as a law, ordinance, bylaws, rules, or regulations passed or made before the commencement of the Constitution. Thus, restrictions can also be imposed by any of the laws that came into force before January 26, 1950. The restriction can also be imposed by a law passed by the State Legislature, Parliament, or through any ordinance promulgated by the Governor or the President. The constitutionality of restrictions can be judged on the basis of Article 19.
Only the laws that pass the test of reasonableness will continue to be valid. It is pertinent to note that a mere executive act would not be sufficient to restrict the fundamental rights of citizens. The Supreme Court made it clear in the case of Union of India v. Naveen Jindal (2004), that it is only a legislative act that can curb the rights conferred upon a citizen. The court held that the Flag Code of India, 2002 was neither made by a competent authority nor supported by a legislative act; thereby, it was found to be incapable of restricting an Indian citizen’s right to hoist the national flag, which is protected under the right to freedom of speech and expression embodied under Article 19(1)(a).
The rights provided under Article 19 can be restricted on the basis of the grounds embodied in Clauses (2) to (6). In the case of Dharam Dutt v. Union of India (2004), the Supreme Court held that the grounds to restrict the rights under clause (2) to clause (6) differ from one another; this is an indication of the fact that the rights given under clause (1) stand on different pedestals and that each right is based on varying dimensions and philosophies.
Reasonable restrictions on the right to freedom of speech and expression
Article 19(2) provides for the various grounds on the basis of which the right to freedom of speech and expression embodied in Article 19(1)(a) can be restricted. These grounds are as follows:-
The security of the state
The clause prohibits the use of the right to freedom of speech and expression to be exploited by citizens, to incite violence and heinous crimes, which can create circumstances of internal or external aggression. It aims to prohibit all such speeches or expressions, which, if allowed, can result in shaking the foundation of the state, overthrowing the government, waging war, or any other kind of rebellion against the government. In the case of Romesh Thappar v. State of Madras (1950), the order passed by the government of Madras under Section 9(1A) of the Madras Maintenance of Public Order Act, 1949, was challenged by the petitioner. The order prohibited the circulation, sale, and distribution of the journal ‘Crossroads’ on the grounds of maintaining public order and securing public safety. In the said journal, the petitioner used to express his opinions through weekly articles criticising government policies. The petitioner contended that the order infringed on his freedom of speech and expression. The Supreme Court held that Section 9(1A) of the Madras Maintenance of Public Order Act was not protected by Article 19(2) as there is a fine distinction between “public order” and “security of the state”, the latter standing on a higher footing, and thereby, the court held the provision to be unconstitutional to that extent. It is pertinent to note that the words “public order” were also added in Article 19(2) through the Constitution (1st Amendment) Act, 1951.
Friendly relations with foreign states
The said ground was added by the Constitution (1st Amendment) Act, 1951. It is imperative to understand that, as per the recognised principles of international law, the state is seen to be responsible for the acts of its citizens if such acts are detrimental to another state. As per the given principle, various modern systems of law embody provisions that punish libel or slander against the head of a foreign state. The state, on the basis of the given ground, restrains the propaganda of any citizen to jeopardise the state’s friendly relations with another state. In India, the Official Secrets Act, 1923 provides for various restrictions on the given ground.
Public order
As discussed above, the said ground was added by the Constitution (1st Amendment) Act, 1951. The said ground was added as an after-effect of the Romesh Thappar case. In the case of Superintendent, Central Prison v. Ram Manohar Lohia (1960), the constitutional bench of the Supreme Court discussed the ambit of the phrase “public order”. The court held that the phrase “public order” has a very wide connotation. The court observed that public order is a basic need of an organised society as it enables the citizens to peacefully pursue their normal activities of life. The court relied on the Hon’ble Justice Patanjali Sastri’s opinion in the case of Romesh Thappar and held that in India, public disorder can be categorised under two heads, one being the aggravated forms of public disorder that can endanger the security of the state, and the second being minor kinds of breaches that are purely of local significance.
The court further held that all the grounds mentioned under Article 19(2) can be brought under the general head of ‘public order’ if the phrase is construed in its most comprehensive sense. However, the legislators used the phrase “public order” on various grounds, knowing that they overlap so that the phrase can be construed in a limited sense. The phrase “public order” can be seen as synonymous with the words public peace, safety, and tranquillity. The court also observed that all the grounds are further limited by the words “reasonable” and “in the interest of” used in Article 19(2), wherein the word “reasonable” ensures that the restriction has a reasonable relation to the object that the legislation seeks to achieve and prevents the restriction from being excessive. The words “in the interest of” make it necessary that the restriction be based on a particular ground mentioned under Article 19(2). The restrictions on the grounds of public order can prohibit any speech or expression which can cause a menace to public order and tranquillity, riots, or loud and raucous noise. In the case of P.A. Jacob v. the Superintendent of Police Kottayam (1993), the Kerala High Court held that the freedom of speech and expression does not include the use of loudspeakers or sound amplifiers.
Further, in the case of Babulal Parate v. State of Maharashtra (1961), Section 144 of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC) was challenged before the Supreme Court to the extent that an order was passed under it to restrict the freedom of speech and expression. The given provision falls under the chapter providing provisions for “maintenance of public order and tranquillity” whereby the provision enables the appropriate executive magistrate to pass a written order directing a person or persons to abstain from doing certain acts. The given order is given when the magistrate is of the opinion that such direction is likely to prevent obstruction, annoyance, or injury to public tranquillity, or that it may prevent a riot or an affray. The given provision was challenged on the grounds that it was an unreasonable restriction under Article 19(2) because the order under Section 144 was passed on the mere apprehension of public order being disturbed. The court held that anticipatory actions taken to prevent disorder will fall within the ambit of the protection provided under Article 19(2). Later, in the case of State of Bihar v. Kamla Kant Misra (1969), it was observed by the Apex Court that the order passed under Section 144(6) of the CrPC can extend the life of an order passed by the magistrate beyond a period of two months. The court held that such an order would be an unreasonable restriction on the freedom of speech and expression.
Decency or morality
Decency can be construed as a lack of obscenity. The restriction on the grounds of decency and morality is primarily based on striking a balance between an individual’s right to express himself and the state’s duty to protect morals. The word “morality” or “morals” can not be defined as it is a concept that changes with the passage of time. The basic rationale behind such restrictions is to prevent the right to freedom of speech and expression from being exploited to deprave and corrupt the community. Thereby, the state can suppress and even punish such actions that promote indecent and obscene material. Sections 292 to 294 of the Indian Penal Code, 1860 penalise a person for selling, hiring, distributing, importing, exporting, or conveying any obscene material like a book, pamphlet, paper, writing, drawing, painting, representation, song, figure, or any other object.
Further, the Indecent Representation of Women (Prohibition) Act, 1986 was passed by the government to prohibit and punish the circulation of any obscene or indecent material relating to women. In the case of Ranjit D. Udeshi v. State of Maharashtra (1965), the Supreme Court held that Section 292 of the Indian Penal Code is constitutional as it is protected under Article 19(2) of the Indian Constitution. The court observed that the given provision will fall within the ground of ‘decency or morality’ given under Article 19(2). In the given case, the court followed the Hicklin Testto determine whether a specific material is obscene or not. As per the given test, it is to be seen in whose hands such material falls and whether the given material has the potential to deprave and corrupt the minds of the receiver or not.
In the latter case of S. Khushboo v. Kanniammal (2010), the Apex Court moved away from the Hicklin test and held that when literature is alleged to be obscene, the specific words or pieces of the literature are not to be magnified to find the said obscenity. Rather, the court should see the literature as a whole and then assess its impact on the minds of the readers. If the overall effect of such literature is not the corruption of the mind, it cannot be called obscene. The court also made a distinction between vulgarity and obscenity. The court held that the mere use of a few vulgar words did not make the entire literature obscene. The court held that “vulgarity” is said to arise from a feeling of disgust or aversion; however, it does not deprave the morals of any person, whereas “obscenity” should be adjudged on the basis of the contemporaneous community standards that reflect the tolerance of an average, reasonable person.
Contempt of court
Contempt of court is another reasonable restriction imposed on the fundamental right to freedom of speech and expression. The rationale behind contempt actions is not to protect the judges from scrutiny by the public; rather, it is to preserve the authority of the judicial mechanism. In the case of Ambard vs. Attorney General for Trinidad and Tobago (1936), it was observed by the privy council that even judges are open to public criticism, and if a reasonable argument is put forth against any judicial act alleging such act to be against public policy or contrary to law, the court will have no power to initiate the contempt proceedings. In the case ofM.R. Parashar v. Farooq Abdullah (1984), then Chief Justice Y.V. Chandrachud held that courts must be reluctant to initiate contempt proceedings; they should be initiated only in cases where it becomes necessary to uphold the rule of law. It was also held that in cases of contempt proceedings, judges also act as prosecutors to punish the person accused of contempt, and in no case should the proceedings give the impression that the judges are acting in their own defence through such proceedings.
In India, Articles 129 and 215 of the Constitution of India empower the Supreme Court and the High Courts to punish for their contempt, whereas, it is the Contempt of Courts Act, 1971 which defines the powers of the High Court to punish for contempt of a subordinate court. Section 2(a) of the Contempt of Courts Act categorises contempt as civil and criminal contempt. Section 2(b) defines civil contempt as wilful disobedience of any order of the court, and Section 2(c) defines criminal contempt as any kind of publication that scandalises or lowers the authority of the court, prejudices or interferes with the judicial proceedings or administration of justice. In the case of E.M. Sankaran Namboodripad v. T. Narayannan Nambiar (1970), the Supreme Court upheld the court’s power to punish for contempt and held that Articles 129 and 215 are not subject to Article 19(1)(a).
Defamation
The right to freedom of speech and expression can not be used to diminish a person’s reputation or credit in the opinion of others. The act of defamation is a tort as well as an offence under Section 499 of the Indian Penal Code, 1860. If a person is found guilty of defamation, he can be held liable for the punishment of simple imprisonment for up to a period of two years under Section 500 of the Indian Penal Code. In the case of Subramanian Swamy v. Union of India (2016), the Supreme Court held that, by virtue of Article 21, every person has a right to live with dignity, which also extends protection to his reputation. It was further held that nobody has the right to denigrate others.
Incitement of an offence
The following ground was added by the Constitution (1st Amendment) Act, 1951. During the Parliamentary debates, the proposal of using the word “violence” instead of the word “offence” was moved. The reasoning behind the given proposal was that the word “offence” has a very wide meaning and can include all the acts punishable under the Indian Penal Code and other special and local laws. However, the given proposal was rejected, and the word “offence” was incepted in Article 19(2). Chapter V of the Indian Penal Code provides various provisions that define and penalise the abetment of an offence. Instigation has been provided as one of the modes through which a person can be abetted. Thereby, no person can use his right to freedom of speech and expression to incite another person to commit an offence. It is pertinent to note that Section 109 of the Indian Penal Code does not differentiate between the person committing the offence and the person abetting the offence while making a person liable for the punishment of an abetted offence. The restrictions on the given ground were upheld in the case of State of Bihar v. Shailabala Devi (1952).
Sovereignty and integrity of India
The following ground was added by the Constitution (Sixteenth Amendment) Act, 1963. The given ground was added to prohibit any material that may be used to assail the territorial integrity and sovereignty of India. “Territorial Integrity” herein refers to the Territorial demarcation of India as a whole and not the demarcation of states. The Constitution itself provides for a mechanism to change the territorial demarcation of the constituent states under Article 3 of the Constitution. The word “sovereignty” herein means that India should be bound by law made by its own Parliament.
Reasonable restrictions on the right to assemble peaceably and without arms
The right to assembly embodied under Article 19(1)(b) includes the right to hold meetings and take out processions. Article 19(1)(b) itself imposes two restrictions, namely, to assemble ‘unarmed’ and for the processions and assemblies to be ‘peaceful’. Article 19(3) of the Indian Constitution further provides that the state can legislate laws to impose reasonable restrictions on the given right. Article 19(3) also provides that the given restrictions can only be in the interest of public order or the sovereignty and integrity of India. The Indian Constitution allows peaceful meetings that are for discussing public affairs or for purposes of education or leisure. The freedom to hold these kinds of meetings forms a bulwark of real democracy. However, the Constitution prohibits riotous or disorderly assemblies under Article 19(3). The Supreme Court in the case of Babulal Parate v. State of Maharashtra (1961) held that public order has to be maintained in advance, and thereby, even anticipatory actions can be taken to obviate the circumstances of any disorderly conduct.
Laws imposing reasonable restrictions on the right to assemble peaceably
The grounds of “public order” and “sovereignty and integrity of India” have to be construed in the same sense as done in Article 19(2). Further, it is imperative to note that the state has legislated various laws through which the given restrictions can be imposed. Provisions like Section 141 of the Indian Penal Code define unlawful assembly. Further, in the case of Mahendra Bahadur Singh v. State (1953), the Madhya Pradesh High Court held that, unlike the US constitution, the Indian Constitution does not confer upon its citizens the right to bear arms; thus, the Arms Act, 1959 which imposes restrictions on the bearing of arms, does not violate the right to assembly. Further, the state government has been empowered to declare the whole state or any part of it as a proclaimed area under the Seditious Meetings Act, 1911.
Further, police authorities have been conferred with the power to issue licenses defining the conditions under which assemblies or processions are to take place under Section 30 of the Police Act, 1861. The purpose of the given provision is to prevent the disturbance of public peace and tranquillity. The provision also empowers the police authorities to disperse the assembly if it violates any of the conditions imposed by the licence. Furthermore, the executive magistrates have been empowered to issue orders under Section 144 of the Code of Criminal Procedure, 1973, to impose restrictions on the holding of public meetings. The order under Section 144 is given when the magistrate is of the opinion that such direction is likely to prevent obstruction, annoyance, or injury to public tranquillity, or that it may prevent a riot or an affray.
Section 129 of the same Code empowers the police authorities and executive magistrate to disperse any unlawful assembly or any assembly of five or more persons who are likely to cause disturbance to the public peace. The given provision also allows the authorities to use reasonable force to disperse the assembly. The given provision is to be read with Section 151 of the Indian Penal Code, which makes the non-dispersal of the assembly after a lawful command to do so an offence punishable with imprisonment up to a period of six months, a fine, or both.
It is pertinent to note that the right to take out processions is implicit in the right to assemble. In the case of Saiyid Manzur Hassan V. Saiyid Mohammed Zaman (1925), it was held by the privy council that there exists a right to take out religious processions even when such processions are along the highways. However, such processions should be subject to the restrictions imposed by the state, and the usage of public highways should not be affected. The Supreme Court in the case of Rakesh Vaishnav v. Union of India (2021), held that the farmers protesting against the three controversial Farm bills near the Delhi Highways have the right to protest, but they cannot block the roads for public usage. The court in the given case reiterated that the right to protest is a fundamental right, but it has to be exercised subject to public order. The court held that there can be no impediment to the exercise of the given right as long as it is non-violent and does not cause damage to the lives and properties of other citizens.
Reasonable restrictions on the right to form associations, unions or co-operative societies
The right to form associations embodied in Article 19(1)(c) has a very wide scope as it guarantees the freedom to form various organisations for the citizens of India. It provides that an individual can form organisations like political parties, clubs, societies, companies, organisations, partnerships, trade unions, and any other body wherein individuals come together due to common and shared interests. In the case of All India Bank Employees Association v. National Industrial Tribunal (1962), it was held by the Supreme Court that the right to form an organisation is protected under Article 19(1)(c) irrespective of whether the objective of the organisation is achieved by it or not. For example, trade unions are generally made to take advantage of collective bargaining; if a trade union is made and the said trade union fails to reap the benefits of collective bargaining in the respective industry, the trade union can not be asked to cease its operations.
It is pertinent to note that the given right to form associations, unions, or co-operative societies is not absolute, and the same can be restricted through the imposition of reasonable restrictions on the grounds provided in Article 19(4). In the case of Dharam Dutt v. Union of India (2004), it was held by the Supreme Court that any restriction on the formation and continuation of any organization under Article 19(1)(c) will be judged on the anvil of the grounds provided under Article 19(4). The restrictions under Article 19(4) can be initiated in the interest of the sovereignty and integrity of India, public order, or morality.
The grounds are to be construed in a similar sense as was done in the previous provisions. In the case of O.K. Ghosh v. E.X. Joseph (1963), the Supreme Court expressly held that the phrase “public order” used in Article 19(4) has the same colour as in Article 19(2), which makes the phrase synonymous with public peace, safety, and tranquillity. In the case of D.A.V. College v. State of Punjab (1971), the restriction imposed by the state to get the educational institution mandatorily registered with a university was challenged on the grounds that it infringed the right conferred by Article 19(1)(c). It was held by the Supreme Court that Article 19(4) can impose reasonable restrictions on the formation as well as on the continuation of the organisation, and thereby, the restriction imposed by the state was upheld.
In the recent case of Central PWD Engineers Association and Anr. v. Union of India and Ors. (2023), the division bench of the Delhi High Court held that government servants cannot be excluded from the protections granted by Part III of the Indian Constitution. The duties that they may discharge might involve certain restrictions on freedoms provided under Article 19. However, by virtue of Article 19(1)(c), even government employees have the right to form associations, unions, or co-operative societies. The court held that the right to form such organizations is a fundamental right; however, the right to get them recognised by the government is not protected under Article 19(1)(c). In the case of S. Ramakrishnaiah v. District Board, Nellore (1952), the Madras High Court held the restriction imposed by the government on the municipal teachers to not join any union to be unreasonable. In the case of P. Balakotaiah v. Union of India (1958), the Supreme Court laid down an obiter dictum that even government servants can enjoy the rights embodied in Article 19(1)(c).
Reasonable restrictions on the right of movement and right to settle
It is Article 19(1)(d) that confers upon an Indian citizen the right to move freely throughout the territory of India. The given right overlaps with the right to settle and reside anywhere in India provided by Article 19(1)(e) of the Constitution. Article 19(5) provides grounds on the basis of which reasonable restrictions can be imposed on the rights provided in clauses (d) and (e). The following rights, not being absolute, can be restricted in the interest of the general public and for the protection of any scheduled tribes. It is imperative to encourage the ideas of fraternity, unity, and integrity of the nation as provided by the Preamble of the Indian Constitution.
Externment and internment orders
The orders passed by the state to prohibit a person from residing or entering a specific place are called ‘externment orders’. On the other hand, orders passed by the state prohibiting a person from leaving a particular place are called internment orders. It is apparent from the nature of the orders that they curtail the rights embodied in clauses (d) and (e) of Article 19 thereby, such kinds of orders are to be passed on the basis of the grounds provided in Article 19(5). The Supreme Court upheld the constitutional validity of the externment order in the case of N.B. Khare v. State of Delhi (1950). Further, In the case of State of Madhya Pradesh v. Baldeo Prasad (1961), it was held by the Supreme Court that if an enactment empowers the state to impose externment orders, it is also necessary for the given enactment to provide reasonable condition precedents for the exercise of the said power.
In the recent case of Deepak S/o Laxman Dongre v. State of Maharashtra (2022), the division bench of the Supreme Court held that the state is empowered to pass orders imposing reasonable restrictions on the exercise of rights conferred by clause (d) of Article 19. An order of externment passed under Section 56 of the Maharashtra Police Act, 1951 is an extraordinary measure that prohibits a person from entering a particular area. The order clearly infringes Article 19(1)(d); thereby, the order must stand the test of reasonableness. The court observed that orders of such kinds prevent the person from staying in his own house with his family members during the period for which the order is in force. This order, in a practical sense, has the effect of depriving a person of livelihood; thereby, the power to pass such orders should be used sparingly in only extraordinary cases.
Reasonable restrictions imposed in the interest of the general public
In the case of Ebrahim Vazir Mavat v. State of Bombay (1954), the constitutionality of Section 7 of the Influx from Pakistan (Control) Act, 1949 was challenged before the Supreme Court. The given provision empowered the Central Government of India to remove any person from India if such a person has committed or is suspected of having committed any offence under the given Act. The court held that the given provision is unconstitutional as it imposes an unreasonable restriction on the freedoms embodied in clauses (d) and (e) of Article 19(1). The court opined that the law subjected the citizens to an extreme penalty by virtually forfeiting their citizenship due to a breach of permit regulations provided in the Act or on the basis of mere suspicion. The court held that the penalty imposed by the provision cannot be justified on the ground that it imposes a reasonable restriction.
In the case of theState of Uttar Pradesh v. Kaushaliya (1964), it was held by the court that a person practising prostitution can be restricted from moving to protect the public from the harmful effects of prostitution. Further, in the case of Ajay Canu v. Union of India (1988), the Supreme Court held that the restriction to wear a crash protection helmet is not violative of the right embodied in Article 19(1)(d) as it is a reasonable restriction in the interest of the general public. In the case of Kharak Singh v. State of Uttar Pradesh (1963), The court expounded upon the rights of a habitual offender and held that watching and shadowing such a person to keep track of his movements and activities is reasonable under Article 19(5).
Restriction for protection of the interests of the scheduled tribes
Indigenous people have unique cultures and ways of relating to people and the environment. These indigenous people have sought recognition for their identities, ways of life, and rights to traditional lands, territories, and natural resources. India voted in favour of the United Nations Declaration on the Rights of Indigenous People. The given vote was based on the condition that, after independence, all Indians would be considered indigenous. Therefore, like in other countries, India does not have the concept of indigenous people. However, in the 2011 census, India recognised 705 tribal groups. The given groups are highly concentrated in various belts of the northeast part of India and in Rajasthan and West Bengal. These communities were recognised as Scheduled Tribes under Article 342(2) of the Indian Constitution. The Constitution provides for various safeguards to protect Scheduled Tribes. One of the safeguards is that the state can impose reasonable restrictions on any citizen from settling, residing, or moving through places that are the native lands of such Scheduled Tribes. These safeguards are incepted to protect the distinct culture, language, manners, and customs of these tribes.
Reasonable restrictions on the right to trade and occupation
Article 19(1)(g) of the Indian Constitution confers on the citizens of India the right to practice any profession or to carry out any occupation, trade, or business of their own choosing. In the case of Sodan Singh v. New Delhi Municipal Committee (1989), the Supreme Court clarified the expressions ‘profession’, ‘occupation’, ‘trade’ and ‘business’ used in Article 19(1)(g) are distinct from each other. The court held that the word ‘profession’ is used when the person earns his living by virtue of his personal and specialised qualifications, training, or skill. Whereas, the expression ‘trade’ is used when a person is engaged in activities of bargaining or sale for profit. The word ‘trade’ includes the buying, selling, and exchange of both goods and services. The word ‘business’ on the other hand, is used when a person is engaged in economic activity which requires the attention of labour to derive profit from capital invested. The word ‘occupation’ is the widest of all, which includes within it any regular work, profession, job, principal activity, employment, business, or calling in which the person is engaged.
The given freedom is not absolute and can be curtailed reasonably under Article 19(6) in the interest of the general public. Further, sub-clause (1) of Article 19(6) provides that the state can prescribe certain specific professional and technical qualifications for carrying on a particular trade, profession, or trade. It is also imperative to understand that India, being a mixed economy, reflects both socialistic and capitalistic characteristics. Thereby, sub-clause (2) of Article 19(6) enables the state to carry on certain trade, business, industry, or service by itself or through a state-owned corporation. The provision also provides that such operations being carried out by the state can be of partial or complete exclusion to the citizens.
Restrictions in the interest of the general public
It is imperative to understand that the restrictions imposed on Article 19(1)(g) have to go through two tests. Firstly, the restriction should be reasonable, and secondly, the restriction should be in the interest of the general public. The expression “ in the interest of the general public” was deliberated upon in the case of the Municipal Corporation of the City of Ahmedabad v. Jan Mohammed Usmanbhai (1986), wherein the Supreme Court held that the expression has to be construed in a wider sense. The court held that the expression can include within it restrictions for the preservation of public order, public health, public security, morality, and the economic welfare of the community. The court further held that restrictions can also be imposed on Article 19(1)(g) to achieve any of the objectives enshrined under Part IV of the Indian Constitution. The court also observed that for the restriction to be reasonable it will have to be varied according to the nature and existing circumstances of the occupation to which it is to be applied.
In the case of State of Gujarat v. Vora Saiyedbhai Kadarbhai (1995), the Supreme Court held that the activity of money-lending is entitled to be protected under Article 19(1)(g) however, the court observed that unscrupulous money-lending to economically weaker sections is reprehensible. Thereby, the court upheld the Gujarat Rural Debtors Relief Act, 1976 the aim of which was to ameliorate the position of rural people stuck in a debt trap. The court observed that the given Act was a reasonable restriction under Article 19(6).
The court also passed the Essential Commodities Act, 1955 in furtherance of Article 19(6). The given act empowers the central government to control the production, supply and distribution of essential commodities. The phrase “in the interest of the general public” empowers the state to impose restrictions to protect the citizens from economic exploitation at the time of the scarcity of essential commodities by the people involved in the trade of such commodities. These kinds of restrictions can even be anticipatory in nature.
In the case of U. Unichoyi v. State of Kerala (1962), the Supreme Court upheld the constitutionality of the Minimum Wages Act, 1948. The Court observed that the policy behind the Act was to protect the interests of sweated labour. The Court also held that even though the citizens have a fundamental right to carry on business, the restriction to provide minimum wages to the labour is a reasonable restriction protected under Article 19(5), and thereby, it is to be mandatorily followed. The minimum wages are not only for clothing the workers with the bare essentials but also for preserving their efficiency.
The requirement of procuring a licence before starting a particular business or trade is also considered a reasonable restriction, and the terms on which such a licence is granted can be tested on the anvil of Article 19(6). In the case of Diwan Sugar and General Mills Pvt. Ltd. v. Union of India (1959), the Supreme Court upheld the requirement of a licence to conduct the business of essential commodities under the Essential Supplies (Temporary Powers) Act, 1946 which was later replaced by the Essential Commodities Act, 1955. However, in the case of R.M. Seshadri v. District Magistrate, Tanjore (1954), the Supreme Court declared the condition in the licence regulating the length of an approved film is unreasonable under Article 19(6). The Court held that the conditions, which are worded widely, are bound to operate harshly and thereby be regarded as unreasonable.
It is pertinent to note that taxes are very distinct from the requirement of licences, as the purpose of taxes is to raise revenue whereas the purpose of licences is to regulate business and trade. The imposition of taxes, irrespective of their excessiveness or otherwise, can not be challenged on the basis of Article 19(1)(g) and Article 19(6). This proposition of law has been affirmed by the Supreme Court in the case of Express Hotels Pvt. Ltd. v. State of Gujarat (1989). However, in the case of Mohd. Yasin v. Town Area Committee (1952), the court held that paying taxes can not be a pre-requisite for carrying on business. Thereby, the state can not prohibit a person from exercising his right under Article 19(1)(g) due to his default in paying taxes.
Conclusion
The proverb ‘excess of everything is bad’ confines wisdom for all ages. It has been observed time and again how the excess of rights in the hands of citizens is exploited unreasonably by a few to harm the society for whose protection these rights were incepted in the first place. Therefore, reasonable restrictions are essential to prohibit any unscrupulous use of such rights.
The word ‘reasonable’ under clause (2) to (6) of Article 19 has broadened the ambit of judicial review for the laws brought by the legislature in furtherance of the reasonable restrictions that are to be imposed on the fundamental rights provided under Article 19. However, all these reasonable restrictions have to be examined by the courts in light of the purpose of the legislation through which they are imposed and the effect they have on fundamental rights. Indian citizens are fortunate to have had their forefathers give them such a wide set of fundamental rights, but the citizens do have a duty to use them responsibly. This responsibility of the citizens is not owed to any government, to any magnate, or to a politician, but only to the ideas and purposes enshrined in the Constitution.
Frequently Asked Questions (FAQs)
On whom does the burden of proof lie to prove the reasonableness of restrictions?
In the case of Mohd. Faruk v. State of Madhya Pradesh (1969), it was held by the Supreme Court that once the petitioner has successfully proved that the law made by the state is invading the freedom embodied in Article 19(1), the burden of proof lies on the state to prove that the invasion is only to a reasonable extent. In the case of Nawabkhan Abbaskhan v. State of Gujarat (1974), it was held by the Supreme Court that as the restrictions grow stringent the burden of proof on the state will also grow heavier. Apart from this the simple rule of evidence also applies in such cases whereby, proving a positive is easier than proving a negative thereby, the courts require the parties to prove the reasonableness and not to prove the unreasonableness.
What are the restrictions provided under Article 304(b)?
Clause (b) of Article 304 provides that the State legislature can impose ‘reasonable restrictions’ on the freedom of trade, commerce and intercourse on the grounds of ‘public interest’. However, any amendment or Bill passed under Article 304(b) requires the assent of the President. The given provision can be seen as an extension of Article 19(6) and similar to the Parliament’s power embodied in Article 302. However, obtaining the assent of the President is not a pre-requisite in Article 302.
Why is the ground of sedition not provided in Article 19(2)?
In India, “Sedition” is an offence by virtue of Section 124A of the Indian Penal Code, 1860. In the case of Kedar Nath Singh v. State of Bihar (1962), the constitutional validity of Section 124A was upheld by the constitutional bench of the Supreme Court. The court in the given case heavily relied on the definition of ‘sedition’ held by the court in the case of Niharendu Dutt v. Emperor (1942). The gist of the offence of sedition was thus provided as words written or spoken that had a tendency or intention of creating public disorder or disturbance in law and order. The ground of “public order” given under Article 19(2) is broad enough to include restrictions of sedition within it.
The court also observed that the word ‘sedition’ was removed from the draft Article 19(1) by the framers of the Constitution, which showed that they never intended to regard disaffection or bad feelings towards the government as a justifying ground to restrict the freedom of speech and expression, unless the speech or expression of such a nature had the tendency to overthrow the government.
Are educational institutions protected under Article 19(1)(g) of the Indian Constitution?
Earlier there existed a dichotomy of opinions on the issue of imparting education being a business, trade or occupation. In the case of Unnikrishnan, J.P. v. State of Andhra Pradesh (1993), the Supreme Court held that educational institutions are not for profit-making purposes and so are, not generally protected under Article 19(1)(g). In the later case of T.M.A. Pai Foundation v. State of Karnataka (2002), the courts held that the word ‘occupation’ in Article 19(1)(g) is wide enough to include the activity of imparting education within it. The same court after a year held in the case of Islamic Academy of Education v. State of Karnataka (2005), that educational institutions can not be allowed to be used for profiteering and directed the appointment of state-specific committees to regulate fee structure and admission process of the private universities.
It was in the same year, when the court in the case of P.A. Inamdar v. State of Maharashtra (2005), held that educational institutions can be set up for both profit-making and charitable purposes. The court clarified that educational institutions for profit-making purposes will be protected under Article 19(1)(g). The court further held that unaided non-minority educational institutions can be regulated under Article 19(6) to prevent profiteering and for the selection of non-meritorious candidates.
Are immoral occupations granted protection under Article 19(1)(g)?
In the case of Krishna Kumar Narula v. State of Jammu and Kashmir (1967), the Supreme Court negated the popular contention of excluding immoral occupations from the ambit of Article 19(1)(g). The court further held that the ambit of protection granted by such an imperative fundamental right can not be based on the prevailing standards of morals. The concept of morality can act as a guiding force whilst imposing restrictions however, it can not be used to limit the scope of a fundamental right. In the case of State of Bombay v. R.M.D. Chamarbaugwala (1957), the Supreme Court further clarified that morality can not decide the ambit of expressions like ‘occupation’, ‘trade’, ‘business’ or ‘profession’. The court further held that by the morals prevailing in society, we can single out some activities that would not fall within the ambit of these expressions. Such activities can be gambling or adulterating of food.
The given interpretation was adopted by the Supreme Court and applied in the case of Har Shankar v. Excise and Tax Commissioner (1975), where the business of liquor was also held to be an immoral activity which is out of the purview of Article 19(1)(g). It is pertinent to note that the liquor trade even though legal is always treated by the state on a different footing which is reasonable due to the harmful effects of intoxication. The state has deliberately monopolized the liquor trade by granting a limited number of licenses to control the supply which is reasonable.
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