Doctrine of essentiality

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November 30, 2023

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This article is written by Indrasish Majumdar, LawSikho Intern; and Monesh Mehndiratta. The article explains the concept of the doctrine of essentiality. It explains its meaning and its evolution over the years through various judicial precedents. It further discusses the role of this doctrine in Hindu law and the recent cases related to the doctrine.

This article has been published by Rachit Garg.

Table of Contents

General overview

The secularism theory in India is quite ingenious. Although initially the practice and spread of religious belief were suggested to be beyond the purview of the state, secularism in post-colonial India was not a principle replicated from the annals of its Western tradition. Secularism in India differed greatly, considering it had to encompass the distinctive socio-religious cultural identity of its people, in addition to the intricacies of India’s multiple religious’ communities. Essentially, Indian secularism has three aspects: Religion shall never play a role in the relations between the State and the individual (ii) the non-interventionist stature of the State was expected to grant equitable freedom of religion by guaranteeing that it did not interfere between the individual and his or her religious belief; (iii) Government intervention was to reinterpret the scope of religion, whereas non-intervention from the State was to provide religious establishments freedom from state intervention.

The Supreme Court of India came up with a key principle to determine the relationship between religion and the Constitution. The doctrine enumerates if a practice is crucial to a specific religion, it cannot be monitored or curtailed by the Government. This proposition was to the root of what later morphed into the “essential test of religious practice.” The test left the courts with two approaches – the first, wherein it was decided by the religion itself what was, and was not, essential practice following its sacred books and inscriptions. The second was for the courts to perform the role of cultural critic and to differentiate religious areas of life in India from temporal ones. The “essential religious practices test” was fashioned by the Supreme Court for the first time in the case of “The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt”, enumerating that the freedom of religion as enshrined in the Constitution extended to religious practices and was not limited to religious beliefs only, and was subject to limitations under the Constitution.

The Apex Court fluctuates between the two approaches and neither of the two approaches have been adopted by it as of yet, definitively. Several cases put the responsibility on religion to determine the essentiality of a particular norm, while others place that responsibility on the courts. The issue that arises from the first approach is the likelihood that religious groups may unjustifiably interpret every action as ‘essential,’ rendering very little scope for any legislative reform. This promotes divisive populism on basis of religion, as disorganized factions promote political activity bolstered by religious narratives. With the latter approach, there is a consideration that courts may not be fitted to decide on social change in religious circles, as religious aspects in India often tend towards policy-related issues.

The purpose of this article is to examine the essential religious practices test and how it integrates the broader constitutional freedom of practising one’s religion with the reparative secular values enshrined in the Constitution. Part II of this paper evaluates the substantial jurisprudence in India, which foments the essential religious practices test and identifies contradictions through cases and also lists some essential religious practices under the Hindu Personal Law on Marriage and Adoption. Part III criticizes the theory of ‘essential’ religious practices throws light on its shortcomings and problems, and proposes an alternative, bearing in mind the peculiarities of Indian secularism. Part IV concludes by stressing the need to introduce an alternative to ERP in India.

Are food and water essential for the continuation of life?

We have all been taught that food and water are essential for sustenance. But have we ever thought about what the term ‘essential’ means? We have seen people praying in mosques, temples, gurudwaras, and so on. Is it essential? Sikh males usually wear turbans; is it essential?.

The term ‘essential’ has been used above many times, and today we will understand the meaning of this term and its importance with respect to law. India is a secular country, which means it does not promote any particular religion but respects all religions. A person living in the country is free to practise any religion and its rituals. However, there is a concept of essential religious practices in our Constitution which determines what practices are essential to a particular religion.

Similarly, there are certain essential conditions or rituals that are to be followed in Hindu or Muslim law. For example, saptapadi or saath pheras, is one of the essential rituals of Hindu marriage. Similarly, mahr, or dower, in Muslim marriage is one such practice. The question that arises is why is this doctrine important and the reasons behind its repeated use by the courts. In the present article we will understand the meaning of the doctrine, its evolution, importance, use in the Constitution and Hindu law, and recent case laws.

Meaning and importance of the doctrine of essentiality

The term ‘essential’ in layman’s language means something which is necessary and must be done. The doctrine can be understood as doing something which is necessary according to the norms and laws laid down in society. This doctrine is mostly used with respect to religion. India, being a secular country, gives its citizens the right to profess and practise any religion under Article 25 of the Constitution. This also includes practising the rituals of that religion. Every religion has some or the other rituals that the followers have to obey and follow. For example, Sikh males wear turbans, Muslims pray in mosques, Hindus marry according to the norms of their religion, which includes Saptapadi; and so on.

With diverse religions and cultures in the country, it becomes necessary to determine what religious practices are essential to a particular religion. This is done so that when a person exercises his right to practise any religion, he is not violating others’ right to religion. According to Article 25 of the Constitution, the State will not interfere in religious matters unless they are related to public order, morality, or the health of the public. However, it also provides that the state can make laws:

To regulate and restrict any economic, financial, political or other activity associated with any religious practice.
Any law which provides social welfare and reforms or opens religious institutions for the public.

Thus, the doctrine helps determine such practices that are fundamental to a particular religion. It was evolved to protect the rights of minorities,prevent a particular religion from dominating others, and further protect religious autonomy.

Evolution of the doctrine of essentiality

The doctrine of essentiality is a jurisprudence or a legal principle developed by the Hon’ble Supreme Court through various judicial precedents. Essential religious practices are those rituals and customs which are important and necessary for a particular religion and must be adhered to by people practising it. The doctrine was formulated by the 7-judge bench of the Supreme Court in the case of the Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Thirtha Swamiyar of Shri Shirur Mutt (1954), famously known as the Shri Shirur Mutt Case, 1954. It was held that the term ‘religion’ will include those rituals that are integral to a particular religion. Article 25(2) of the Constitution gives the power to the state to make laws with respect to regulation of economic, political, and other activities related to religion. However, the responsibility of determining what is included within the ambit of integral religious practices was left with the courts. In the case of Ratilal Panachand Gandhi v. State of Bombay (1954), the court held that the right to religion and freedom is subject to certain restrictions mentioned in Article 25 of the Constitution. The doctrine was interpreted in such a way that it includes not only the beliefs but pursuant acts as well. Further, the Supreme Court held Section 44 of the Bombay Public Trust Act, 1950 void.

The very first case where the question related to religious practices was dealt with by the courts was State of Bombay v. Narasu Appa Mali (1951). In this case, the Bombay High Court refrained from answering the question and held that such questions related to religion, personal laws, rituals and religious practices must be kept outside the ambit of fundamental rights. This judgement was, however, overruled later by the Shri Shirur Mutt case (1954). Further, in the case of Ram Prasad Seth v. State of U.P. (1957), the Allahabad High Court held that bigamy does not amount to integral religious practice of Hindu religion and hence, cannot be called essential to the religion.

Another important question related to essential religious practice was dealt by the Supreme Court in the case of Church of God v. K.K.R. Majestic Colony Welfare (2000). In this case, the court had to decide upon the issue whether the use of loudspeakers while offering prayers is an essential religious practice. It was held that no religion prescribes or asks to offer prayers with the help of loudspeakers and by disturbing the peace of the public. It was further observed that in a civilised society, no such activities must be performed in the name of religion which causes harm to infirm or old people, students, or children. Thus, use of amplifiers and loudspeakers does not amount to essential religious practice. In the case of Commissioner of Police v. Acharya Jagadishwarananda Avadhuta (2004), the court, while applying the doctrine, observed that in order to decide whether a particular religious practice is essential or not, the test is to determine whether absence of such practice does any harm or alters the religion. The court has interpreted and widened the scope of the doctrine through various judicial decisions from time to time. In the case of Dr. Noorjehan Safia Niaz v. State of Maharashtra (2016), the court dealt with the question whether exclusion of women from dargahs is essential to Islam. The Bombay High Court held that it is not an essential practice of the religion, and hence, permitted the women to enter the Haji Ali Dargah. Similarly, in the case of Shayara Bano v. Union of India (2017), the Supreme Court rejected the argument that the practice of triple talaq was an essential practice in Islam. This kind of talaq was held to be unconstitutional and punishable by the court, and that it was against the basic tenets of the Quran.

Understanding essential religious practice : intermingling of law and religion

Considering India’s diverse democratic setup, which has thrived on the strong foundation of both regulations and rights, merely touching upon the two distinct domains of law and religion would not have sufficed. Though patently different, it is also true that both law and religion form the fundamental needs of the society. Therefore, the Apex Court as well as the High Courts have propounded certain parameters which can be taken as a benchmark while establishing and entrusting protection to such beliefs that are significant to the existence of the religion. In the following sections, the authors undertake an in-depth analysis so as to understand the position of essential religious practices under Constitutional Law as well as Personal Law.

Essential religious practices under Hindu Personal Law

Hindu law is mostly governed by Dharma, or religion. During the Rigvedic period, law was looked as a symbol of not only legal provisions but of social order as well. In the Samveda, it was associated with divine origin. According to Hindus, law is understood as a branch of Dharma, which signifies duty. This means that the people following Hinduism have to follow the dharma or religious practices which are termed as duties. Let us try to understand some of the essential religious practices in Hindu law.

Marriage and adoption for Hindus are two practices the legitimacy of which is derived from the personal laws of Hindus. The following section of the paper shall deliberate on a few essential religious practices under Hindu Personal law for adoption and marriage, without which neither of the two processes can be legally solemnized. “Section 5 of the Hindu Marriage Act, 1955” enumerates the requirements important for a Hindu marriage; namely: At the time of the marriage, neither party,- (a) is incapable of providing legal consent as a result of unsound mind; or (b) even if they are capable of giving informed consent, they are not inflicted by a psychiatric illness of nature which renders them unfit for marriage and childbearing; or (c) has been exposed to repeated acts of lunacy;

The bridegroom is twenty-one years old and the bride is eighteen years of age at the time of marriage;
The parties are not bound by the edicts of a forbidden partnership unless the practice allows marriage;
The parties to a marriage are not sapindas unless marriage between the concerned parties is permitted by tradition;
A bride doesn’t need to be a virgin.

Section 7 enumerates the essential rituals of Hindu matrimony. A Hindu marriage can be celebrated in compliance with the traditional rites of either of the concerned parties. One such customary ritual is “saptapadi” (taking seven steps by the bridegroom and bride in togetherness). However, the Supreme Court in one “Seema vs. Ashwani Kumar AIR 2006 SC 1158”, opined that the marital union of all Indian citizens belonging to different religions be compulsorily registered. If marriage is documented, most marital conflicts can be safely prevented. Registration was intended to secure the interests of the women and also to prevent the problems of recognition of the rights of children.

In “P. Ramesh Kumar vs. Secretary Kannapuram Grama Panchayat, AIR 1998 ker. 95”, it was opined by a single judge of the Kerala High Court that a Buddhist lady with a Japanese nationality had married a Hindu without registration. However, the certificate of registration was not a matter of concern invalidating the marriage since the bridegroom was not an Indian domicile.

Adoption

The concept of adoption is not new to Hindu law. Before the enactment of Hindu Adoption and Maintenance Act, 1956 any person who was not minor and was of sound mind could adopt. Usually, a son was adopted and not a girl. However, Section 6 of the Act provides essential requirements of adoption. These are:

The person adopting a child must have the capacity and right to do so as given in Section 7 and 8 of the Act.
The person giving a child in adoption must have the capacity to do so as mentioned under Section 9 of the Act.
The person adopted must be capable of being taken in adoption as given under Section 10 of the Act.
Adoption must be done according to other conditions mentioned in Section 11 of the Act.

It was enumerated in the Hindu Shastras that the adoptive son should be a manifestation of the real son. This ensured the protection of the adopted boy. He was no more an adoptive son only, but all ties on the matrilineal and patrilineal side of the adoptive family were to be regarded as natural relations implying the boy cannot marry the daughter of his adoptive parents, irrespective of whether the daughter was naturally born or adopted. The key aim of contemporary adoption legislation is to offer comfort and support to a childless parent and, on the other hand, provide the needy, abandoned, destitute or illegitimate child with parents. However, in the Chandrashekhara case,it was held that the legitimacy of the adoption must be decided based on moral rather than physical factors and the transfer of property is therefore of secondary significance.

The implementation of the Hindu Law is currently regulated by “the Hindu Adoption and Maintenance Act, 1956” which applies only to Hindus as specified in Section 2of the Act and includes any individual who is a Hindu by religion, including Virashaiva, Lingayat or a disciple of “Brahma, Prarthana or Arya Samaj, or a Buddhist, Jaina or Sikh”, to any person who is not a Muslim, Christian, Parsian or Jew. It also encompasses any legal or illegitimate infant who has been discarded either by his parents or whose paternity is not documented and is raised as a Hindu, Buddhist, Jaina or Sikh.

The essential conditions for legitimate adoption as laid down in Hindu Personal lawis as follows 1) The person to be adopted is lawfully capable of being adopted 2) The adoption is complete upon real giving and taking and once the ritual is termed the datahoman (fire oblation) has been carried out. However, this might not be essential concerning the legitimacy of adoption in all circumstances. The child may be adopted:

So long he or she is a Hindu;
He or she has not been adopted already;
He or she has not been engaged unless there is a tradition or practise relevant to the partners that allow adopting persons who are married;
He or she has not attained fifteen years of age unless there is a practice applicable to the parties that enables the adoption of children irrespective;

The judgment of 6 March was delivered in light of an appeal filed by Mr Vanaja, who claimed the title of the late Narasimhulu Naidu’s adoptive daughter. She had filed a civil suit for partitioning the property which was dismissed. The High Court of Hyderabad subsequently affirmed the dismissal. Pursuantly, an appeal was filed before the Supreme Court. Justice Rao, who penned the judgment opined Sections 7and 11of the 1956 Act which lays down the two essential conditions for adoption “1) consent of the wife before the adoption of the child by the Hindu male and the 2) evidence of the ceremony of actual giving and receiving needs to be mandatorily fulfilled.” The conditions enumerated above for the completion of the above-mentioned practices of marriage and adoption per Hindu personal laws can be determined as essential religious practices of the concerned sect without which a Hindu marriage cannot be solemnized nor can an adoption take place.

Marriage

Marriage in Hinduism is one of the oldest institutions. It is also considered as one of the most important samskaras or duties of Hindus and has a religious sacrament attached with itself. It is believed that marriage is important because all other rites and ceremonies are to be performed by a Hindu with his wife as Dharma. It is intended to fulfil religious duties and achieve higher ends of life i.e., Dharma, Artha, Kama, and Moksha. A Hindu marriage is said to be a sacrament because it creates an inseparable relationship between the husband and wife and many religious ceremonies are involved in it. Some of these religious ceremonies are recognised under the codified Hindu law as essential religious practices and conditions of valid Hindu marriage.

According to Section 5 of the Hindu Marriage Act, 1955 the following are the conditions of valid Hindu Marriage:

Monogamy
Soundness of mind
Age of marriage
Prohibited degrees
Sapinda relationship

In the case of Dr. A.N. Mukherji v. State (1968), the husband was prosecuted for bigamy. He developed a marital relationship with another woman and performed a false marriage with her while his first wife was alive and the marriage was still subsisting. The second marriage was said to be accomplished by performing three religious ceremonies at three different places in different ways. The first one was marriage in full moon night, secondly garlands were exchanged in the temple of goddess Kali and seven steps were walked together by both of them and a similar ceremony was done before Guru Granth Sahib. However, none of the ceremonies were recognised by the community of either party to a marriage. Hence, the second marriage was held to be invalid and the accused was charged for the offence of bigamy. In Hinduism, marriage is solemnised when the nuptial ceremonies that are essential to the marriage are performed. This includes invocation before the sacred fire, Saptapadi i.e., taking seven steps together, etc. In the present codified law, Section 7 of the Hindu Marriage Act, 1955 recognises the importance of ceremonies and rituals in a Hindu marriage. In the case of Bhaurao Shankar Lokhande v. State of Maharashtra (1965), the Supreme Court held that the word ‘solemnised’ means marriage which is performed with proper rituals and ceremonies. Further, in the case of Joyita Saha v. Rajesh Kumar Pandey (2000), the court held that a Hindu marriage must be performed with proper ceremonies which includes Saptapadi and Kanyadan.

Essential religious practices under Constitutional Law

The Constitution provides for “freedom of conscience and right to freely practice, profess and propagate religion subject to public order, morality and health.”Usage of the word ‘person’ reflected the conscious effort of the framers to vest in every individual, the freedom of religion regardless of whether they were the citizens of the country. Additionally, the provisions of reasonable restrictions mentioned in each of these rights embodied the balance which the Constitution sought to draw between the religious rights and goals of growth and development.However, given the countless beliefs in every religion, conferring legal protection upon all beliefs, including those which were remotely related or connected to a religion, would have flooded the courts with legions of religious claims by each community almost every other day. Therefore, protection under Articles 25-28 was afforded to only such practices of religion which fall under the broad umbrella of essential religious practices.

As of today, the courts have taken upon themselves, the onus of identifying the nature of the practice in question. Consequently, the Honorable Supreme Court of India [hereinafter Supreme Court] has declared that “it is for the Court to ascertain whether a practice forms an essential part of the religion”.When such questions appear before the Supreme Court, it analyses them in light of the doctrines of that specific religion.Following are the key principal tests which though have not been directly laid down by the Courts, have been considered while discerning the essentiality of a practice.

Test of scriptures

Scriptures also referred to as the holy or the sacred text, comprise literature on a particular religion. Most religions have their own scriptures which not only fosters a religious identity and spirituality among a group of individuals but also sets out the primary beliefs which guide the followers of a specific religion.As a mark of objectivity and respect towards both religion and law, the courts often inquire about religious tenets and literature while gauging the essentiality of a practice.Therefore, the assessment of religious practices through the lens of scriptural evidence plays an instrumental role in the identifying of essential practices. Consequently, judging such matters on evidenceor before the Court of Lawhas become a common practice among the courts.

Addressing this question was the stance of Hon’ble Mr. Justice Kurian Joseph in the landmark Triple Talaq verdictwhich confirmed and clarified that in matters pertaining to religion, sole reliance on the knowledge of those who claimed to be the ‘keepers of religion’ was not sufficient. Hence, it is a constitutional necessity that reliance is placed on these beliefs post careful scrutiny and not merely on the claims of the community. Therefore, one of the important factors which must be considered while ascertaining which practices are essential would be its explicit or implicit mention in the religious scriptures and tenets.

Test of fundamental change in religion

Every religion has a certain “set of beliefs and doctrines which are regarded by those who profess religion as being conducive to their spiritual well-being.”Some of these doctrines and beliefs are indispensable from the viewpoint of such religion. Essentiality, therefore, is only one of the elements which have to be taken into account while deciding whether a religious practice is indispensable from the viewpoint of the religion.Therefore, the significance can be judged by understanding the after effect of each of these practices upon the character of the religion itself. Thus, if the taking away of such practice directly impacts the very nature of the religion, it shall be considered as an integral or essential part of the religion.

Test of genuineness of beliefs

On various occasions, courts have also emphasized gauging the significance of religious practices which the followers associated with a particular religious practice. As put forth by Justice Mukherjea, “the main question does not lie in examining whether a particular religious belief or practice appeals to our reason or sentiment but whether the claimed belief is ‘genuinely’ and ‘conscientiously’ held to be a part of the profession or practice of any particular religion.”In case the claimed belief can be ascertained to have been preached conscientiously and genuinely by the followers of the religion, the practice can be said to qualify as an essential part of the religion. Hence, while assessing the genuineness of these claimed beliefs, the Supreme Court held these practices to be integral and essential to their religion. Therefore, the test of genuineness should also be given due regard while deciding the essentiality and integrality of such beliefs.

Test of nature of practice

While determining the essentiality of practice, it is also imperative to gauge the nature of the practice so as to reckon the nature of the practice and categorize the same as either obligatory or optional. For instance, the Supreme Court, in Acharya Jagdishwaranand Avadhuta and Ors. v. Commissioner of Police,held that the performance of the Tandava dance was not an integral or essential part of the petitioners’ religion owing to the fact that their religion did not mandate the performance of ‘Tandava Dance’ in public.

Extending the thread of reasoning, reliance is occasionally placed on the prestige and eminence of the place of worship and its role in that particular religion. Such places of worship are placed on a higher pedestal and ought to be treated “differently and more reverentially.”It is from this perspective that the Supreme Court declared mosque as not an essential part of Islam religion because Namaz could be offered from anywhere.

Limitations and challenges : the judiciary dilemma

Given the broad sphere of religion, the task of categorizing religious beliefs into essential or non-essential has not always been as simple as it seems to be. Not only do these beliefs form the core of the communities which follow them, but also symbolize a crucial aspect of their religion which has been a part and parcel for generations. Thus, the arduous task that comes up before the courts while handling such matters encompasses both identifications of such beliefs which were brought into existence in a completely different time period and weighing them against the practical needs of today’s society. While the court seems to have done an elaborative job by devising the above tests, it also needs to be understood that a blind application of the tests may not always provide us with an ideal solution to the issues that arise in the due course of time.

A stringent application of the principles established by the court may defy certain elementary features of religion which bind the people of a community together. For instance, confining the filtration of religious practices solely on the basis of scriptures could in fact result in violation of oral traditions of the followers. Oral traditions, though not written, have been accepted as a universal form of historical consciousness which also forms an intangible part of human culture.They could exist in the form of skills or sheer wisdom.

Confining the scope of essential religious practices has always been regarded as a threat to religious conscience.For example, by placing reliance on a Canadian judgment, the followers of Shri Shirur Matt, in their quest to protect their beliefs and practices in the casehad also argued that “it was not for the Court to embark upon an inquiry into the asserted belief and judge its validity by merely some objective standard such as the source material upon which the claimant finds his belief or the orthodox teaching of the religion in question.”As acknowledged in S.P. Mittal v. Union of India, “what is a religion to some is pure dogma to others and what is a religion to others is pure superstition to some others.” A similar thread of reasoning was also used in the Sabarimala case, wherein it was contended by the followers that there existed no requirement for the beliefs of the petitioners to be logical or comprehensible to others who do not share them.

Recent case laws

Aishat Shifa v. the State of Karnataka (2022)

Facts of the case

The present case was filed when a Muslim student in one of the schools in Karnataka was not permitted to enter the premises because she was wearing a hijab. The Karnataka High Court on the issue of whether wearing of hijab constitutes an essential religious practice, held that it is not one such practice and hence, not protected under the right to freedom of religion given under Article 25 of the Constitution. An appeal was filed against the decision of the High Court in the Hon’ble Supreme Court.

Issues involved in the case

Whether wearing hijab constitutes an essential religious practice?

Judgement of the court

The Supreme Court in this case observed that the issue in hand related to wearing of hijab should not have been dealt with by determining whether it is an essential religious practice or not. This is because there is democracy in the country and educational institutions provide secular education. Moreover, wearing a hijab is not against public order, morality or health. Wearing hijab also amounts to the privacy of a girl. Thus, the court held that there would be no restriction on wearing of hijab in the school or college premises and girls would not be denied entry in the premises on this ground.

With respect to tests of essential religious practice the court observed that the test was laid down to resolve disputes of a particular nature. These were the cases where the rituals and practices of a particular religion or sect sought protection against the interference of the state. The issue at hand was not only related to religious practice but freedom of expression given to citizens under Article 19(1)(a) of the Constitution.

Indian Young Lawyers Association v. State of Kerala (2018) (referred to a larger bench)

Facts of the case

The present case was filed against the Government of Kerala, Devaswom Board of Travancore, Chief Thanthri of Sabrimala Temple and the District Magistrate of Pathanamthitta. This is because women belonging to the age group of 10-50 years were denied entry in the Ayyappa Temple at Sabarimala.

Issues involved in the case

Whether denial of entry of females in the temple constitutes essential religious practice.

Judgement of the Court

While deciding the issue as to whether denial of entry to females constitutes essential religious practice, the Hon’ble Supreme Court made certain observations. The court observed that the test to decide whether any practice is integral part of a religion would be to determine whether such a practice is regarded as integral by the community or people following the religion. In deciding so, the court will have to enquire whether the practice is religious in character and even if it is, whether it is an integral part or not. It was held that the custom of denying entry to females in the temple belonging to a particular age group is not an essential religious practice and rather violates their fundamental rights. However, the decision was referred to the 9-judge bench, to which the court held that the decision of the court will be enforced till the review petition is pending.

The way forward

It is true that the courts are often plagued with a series of issues while striking down practices or traditions relating to religion. Firstly, the fact that those practices or principles are irretrievably affixed to law makes it impossible to quash a portion without disturbing the entire scheme of law as such. Validating only some features and nullifying some other features may hamper the functioning of the entire religion. Secondly, such practices are deeply rooted in the religion and followers of that religion might feel distressed by the courts quashing their practices thereby causing turmoil in the society.

The growing interactions between religion and law have today evolved into one of the major clashes of the country that often finds itself knocking on the door of the courts. The human string which ties the two contrasting knots of law and religion together has, on multiple occasions, suffered in its attempt to strike a balance between the two. In order to attain what our forefathers had dreamt of, and to evade a situation of chaos, the Courts must strive to strike a balance between Law and Religion. Therefore, what emerges as the need of the hour is placing law and religion alongside and not against each other. Both the concepts must be redeemed from their conventional setting as mythological and scientific entities and be perceived as two primordial needs of the modern society thereby ensuring a cordial equation and a mutuality between the two which furthers the larger goal of ensuring harmony amongst its people.

Conclusion

It is true that the doctrine helps in determining whether a particular practice is essential to a religion or not which further helps in dealing with the issues that come before the court. However, the doctrine has been criticised over the years by many scholars. It is believed that the doctrine leads to reduction of safeguards that are available to a religion or custom. Another point of criticism is that the doctrine impinges upon the autonomy of religion and the groups to decide for themselves and their right to religion.

The major issue while applying the doctrine is that there are no fixed parameters to decide what practice falls under the ambit of essential religious practices. This doctrine has widened the scope and jurisdiction of the court as the power to determine whether a practice is essential or not is given to them which further leads them to an area beyond their competence. It is true that the idea behind incorporating the doctrine was to make society progressive and court duty bound to strike down evil practices prevailing in the name of religion in society. But while doing so, the court must consider that religion is a crucial aspect of human development and harmony in society and so there should be no excessive interference with the religion, customs and faith of people.

Frequently Asked Questions (FAQs)

When was the doctrine of essentiality developed?

The doctrine was developed by the 7-judge bench of the Supreme Court in the famously known case of ‘Shirur Mutt‘ in 1954.

What are the advantages of this doctrine?

With the help of the doctrine, the courts try to make a balance between the fundamental rights.
It helps in ensuring social justice while exercising the right to religion.
The doctrine ensures that constitutional morality is preferred over and given importance over religious morality.
It also helps in ensuring that rule of law is preferred over rule of religion and hence, prevents conflict between the different sections of society.
It provides protection to essential religious practices prevailing in a society that are not in violation of fundamental rights.

What is the major issue while applying this doctrine?

While applying the doctrine the courts have to decide whether the practice in issue constitutes essential religious practice as there are no fixed parameters to decide so.

References

“The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shri Shirur Mutt, (1954) SCR 1005 (India)”, ¶ 20
Hindu Marriage Act 1955, s 5.
Kamesh, ‘Conditions for A Valid, Void and Voidable Hindu Marriage’ (legalservicesindia) < http://www.legalserviceindia.com/legal/article-1487-conditions-for-a-valid-void-and-viodable-hindu-marriage.html> accessed 27 February 2021”
Legal Correspondent, “Hindu adoption not valid without consent from wife”, The Hindu (New Delhi, March 10 2020)
Romit Agarwal, “Adoption: Under Hindu, Muslim, Christian And Parsi Laws – Requirements for a valid adoption” (legalservicesindia) “< http://www.legalserviceindia.com/articles/hmcp_adopt.htm>” accessed on 3^rdMarch 2021
Valentina Rita Scotti, The “Essential Practice of Religion” Doctrine in India and its application in Pakistan and Malaysia, Statochiese(Feb. 8, 2016), http://203/6783-Articolo-20292-1-10-20160208.pdf(last visited July 10, 2020).
Rahul Unnikrishnan, The Supreme Court’s tryst with religious practices (Nov. 10, 2018) https://www.barandbench.com/columns/supreme-court-tryst-religious-practices(last visited March 29, 2021)
Durgah Committee v. Syed Hussain Ali, AIR 1961 SC 1402 (India) [hereinafter Durgah Committee]; Sankarlinga Nadan v. Raja Rajeswara Dorai, (1908) 10 (Bom. L.R.) 781 (India).
Del Henige, Oral, but oral what? The nomenclatures of orality and their implications, Oral Tradition, 34 -47 (1988).
David Wilson, A study on Oral Tradition as a Communication Tool, 5 Int’l J. of res. In Economics and Soc.Sci.,118-124(2014) ; Zee Entertainment Enterprises v. Mr. Gajendra Singh, 2008 36 PTC 53 Bom. (India).

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DPDPA : transitioning India’s law on data privacy

By

Vanshika Kapoor

-

November 29, 2023

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This article is co-authored by Bhuvnesh Manchanda and Sukriti Verma, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Table of Contents

Introduction

“Right to privacy of any individual is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he/she breathes last. It is indeed inseparable and inalienable from human being.”

-Supreme Court of India

The architects of our Indian Constitution had the vision of making a secondary document wherein society could find answers when in a state of bafflement. When individuals are in a state of bafflement, they may turn to holy books. Whereas when society is in such a situation, the Constitution has guided it to light. The drafting committee of the Constitution recognised that the Constitution should adequately adapt to the changing demands of society. Since the constitutional makers have departed, the judiciary has adamantly preserved constitutional values.

The Digital Personal Data Protection Act, 2023 (“DPDPA” or “Act”) is the result of such judicial activism. The foundation of the Act was laid when a son overruled his father’s judgement for the sake of justice (K.S. Puttaswamy (Retd.) vs. Union of India (2018)) and accepted the right to privacy as an intrinsic part of the right to life and personal liberty enshrined under Article 21 of the Indian Constitution. The Hon’ble Supreme Court of India in the K.S. Puttaswamy judgement said, “We commend to the Union Government the need to examine and put into place a robust regime for data protection.” Had the view of the Supreme Court been any different, the possibility of an act like DPDPA being legislated was very minuscule or if it were legislated, then it could be a tiger without claws. Because no state would want to cut its hands by giving its citizens more rights.

However, the date of commencement of this Act is yet to be released and is subject to notification in the Official Gazette. Also, different provisions of the Act may come into effect on different dates. Furthermore, the rules/ regulations under the Act have to come out. Also, the Act is at an early stage and ripper towards data breaches happening across the country. The Act is a pioneer, considering the market it has to regulate. One can expect this Act to have many developments in the coming future.

Jurisdiction and scope of the DPDPA, 2023

According to the first part of Section 3 of the DPDPA, it applies to the whole of India where personal data is collected in digital form or non-digital form if that is to be digitalized at a later stage. The applicability of DPDPA stretches outside India as well if such data processing is in connection with any activity relating to the offering of goods or services within India.

However, the Act does not apply when personal data is processed for domestic or personal purposes or when the data is available in the public domain.

Under sub-clauses (b), (c), and (d) of Section 8, the state is free to process personal data for the reasons specified therein. Furthermore, under sub-section (2) of Section 17, the state has left a vaguely huge ambit to process personal data. The state has granted itself complete immunity against any kind of data processing breach under this Act. We may probably expect the judiciary to scrutinise these provisions of complete immunity to the state under the ambit of DPDPA in the near future.

Cross-border data transfer

The DPDPA’s applicability also extends outside India if such processing is in connection with any activity related to the offering of goods or services to data principals within India. The cross border transfer of data is governed under Chapter VI of the Act. The Legislature has kept it open for it to restrict the transfer of personal data to certain territories outside India. The legislature has also kept it open for the laws of different countries, such as the General Data Protection Regulation (GDPR), which has a higher degree of protection or restriction of personal data, to supersede the DPDPA.

Important definitions

Before getting into this article, we must familiarise ourselves with the definitions used in the Act for better comprehensibility, as follows:

Personal data: means any data about an individual who is identifiable by or in relation to such data.
Processing: In relation to personal data, it means a wholly or partly automated operation or set of operations performed on digital personal data and includes operations such as collection, recording, organisation, structuring, storage, adaptation, retrieval, use, alignment, or combination, indexing, sharing, disclosure by transmission, dissemination or otherwise making available, restriction, erasure or destruction.
Data fiduciary: Any person who, alone or in conjunction with other persons, determines the purpose and means of processing personal data.
Consent manager: A consent manager represents the data principal and takes action on their behalf when granting, managing, reviewing, and revoking consent.
Notice: A notice shall be given by the data fiduciary for processing data to the person whose data is being processed. It should be clear, itemised, and in simple language.
Data principal: an individual to whom the personal data relates.
Significant data fiduciary: means any data fiduciary or class of data fiduciaries as may be notified by the Central Government on certain grounds as defined in Section 10 of the Act.

Exemptions

The applicability of the DPDPA has certain exemptions governed under Section 17 of the Act, classified as follows:

When the personal data is made or caused to be made publicly available or when the law mandates the personal data to be made publicly available.
When the processing of the data is done for the purposes of prevention, detection, investigation, or prosecution of any offence or contravention of any law.
When the processing of personal data is done to enforce any legal right or any claim of any nature.
When the processing of personal data for the performance of any judicial or quasi-judicial functions by any Indian court/tribunal or any other body.
When the processing of personal data by data principals is done outside the territory of India under any contract entered into with any person outside the territory of India by any person based in the territory of India.
When the processing of personal data is necessary for a merger/amalgamation or similar arrangement as approved by a court or any other competent authority.
When the processing of personal data is done to ascertain the financial information, assets, and liabilities of any person who has made a default in payment due on account of a loan or advance taken from a financial institution, this shall be subject to the provisions regarding disclosure of information or data in any other law.

Compliance under the DPDPA, 2023

For starters, the data fiduciary shall, in a reasonable time, give a detailed notice relating to the personal data to the data principal if the data has already been processed before the commencement of this Act. The processing of data by the data fiduciary, after the commencement of this Act, shall be preceded or accompanied by a detailed notice of purpose, manner, and processing of data and a withdrawal of consent for processing personal data.

DPDPA vs GDPR

Date: GDPR came into force on 25^th May 2018 , whereas India came with its own data protection law on 11^th August 2023. Apparently, India may have just begun its data protection journey, but it is not lagging much behind the EU.
Basis: One of the major differences between both laws is that the EU’s legislature made a law as the need arose but in India, the Apex Court had to take the matter into its own hands and commend the Union Government for making a law for the same.
Scope and applicability: The GDPR governs the processing of personal data wholly or partly by automated means or such personal data that will form part of the filling system, whereas the DPDPA governs such personal data that is digital or will be digitalised.
Penalty: The penalty that can be imposed under the GDPR has no fixed cap, i.e., it can be a maximum of 20 million euros or 4% of the defaulting firm’s worldwide annual revenue from the preceding financial year (whichever is more), whereas in DPDPA there is a fixed cap of INR 250 crores.
Parental consent: In GDPR, parental consent is required to process data on minors up to the age of 16 years, whereas in DPDPA, the consent of the parent or guardian is required up to the age of 18 years.
Maintaining records: There is no provision in DPDPA putting an obligation on the data fiduciary to maintain records of processing activities (ROPA).
Reporting: The GDPR has a strict timeline of 72 hours to report data breaches to the Supervisory Authority and possible affected subjects, whereas, for the DPDPA, the government has not yet notified any such timeline.
Notice: It can be found that in the DPDPA, the data fiduciary is required to give notice to the data principal in any of the 22 languages given in the eighth Schedule of the Constitution, whereas in the GDPR there is no provision, as it is English Centric.

Legitimate use and limits for processing data

The Act explicitly mentions in Section 7(a) that the data fiduciary can only process the personal data to the extent to which the data principal has given her consent and if the data principal has not consented to the same, it may be assumed that she has not given consent for the same. For a crystal-clear understanding, here’s an illustration from the Act:

X, an individual, electronically messages Y, a real estate broker, requesting Y to help identify suitable rented accommodation for her and sharing her personal data for this purpose. Y may process her personal data to identify and intimate to her the details of accommodation available for rent. Subsequently, X informs Y that X no longer needs help from Y. Y shall cease to process the personal data of X.

Other legitimate uses under the Act include that the data fiduciary may process data for performing the functions of the state, for any obligation under law to disclose information to the state, for compliance with any judgement/decree/order, for responding to a medical emergency (involving a threat to life or health), for taking measures to provide medical treatment during an epidemic, for taking measures to ensure safety during any disaster, and for safeguarding employers from loss or liability, including corporate espionage, maintenance of confidentiality of trade secrets, and intellectual property.

The DPDPA sets the limits and boundaries for processing personal data for data fiduciaries. Like consent for processing the data, it shall be unambiguous and specific. It can also be in English or any other language specified in the Eighth Schedule of the Constitution. The data fiduciary can only process the personal data of a data principal under “certain legitimate uses” defined under Section 7 of the Act. Otherwise, it may attract a penalty of up to INR 50 crores.

Rights of data principal

The data principal shall have the following rights:

Right to access information: The right to obtain from the data fiduciary a summary of the data that is being processed, a list of identities of other data fiduciaries with whom such personal data has been shared, plus a description of such personal data, and any other information that may be prescribed by the legislature.
Right to amend/ withdraw data: The right to correction, completion, updating, and erasure of her personal data for which she consented.
Right to grievance redressal: The right to readily available means of grievance redressal.
Right to nominate: The right to nominate a person on his behalf on account of his incapacity.

Duties of data principal

Most of us would fall under the category of data principals under the Act. With great rights come great responsibilities, so let us get through our duties as data principals; otherwise, it may attract a penalty of INR 10,000.

To comply with the provisions of all applicable laws while exercising rights under the provisions of this Act.
To ensure not to impersonate another person while providing her personal data.
To ensure not to suppress any material information while providing her personal data.
To ensure not to register a false or frivolous grievance or complaint with a data fiduciary or the Board.
To furnish only such information as is verifiably authentic, while exercising the right to correction or erasure under the provisions of this Act or the rules made thereunder.

Significant data fiduciary

The Act has not adopted a size-fit approach for compliance. The data fiduciaries are divided into two structures:

Data fiduciary, and
Significant data fiduciary (SDF)

At present, the government has not defined the criteria for significant data fiduciaries, but it will soon notify the factors for determining significant data fiduciaries. However, such factors will revolve around the following:

volume and sensitivity of personal data processed;
risk to electoral democracy;
risk to the rights of the data principal;
security of the state;
Potential impact on the sovereignty and integrity of India; and
public order.

For significant data fiduciaries, there are additional obligations.

The SDFs are obligated to appoint a data protection officer (DPO) based in India, who shall be responsible to the governing body under the Act. The DPO appointed by the SDF shall handle the grievance redressal mechanism under the Act.
The SDF shall appoint an independent data auditor who shall carry out data audits and evaluate the complaints of the SDF. Moreover, periodic audits of personal data are going to be there.

Grievance redressal under the DPDPA, 2023

The grievance redressal mechanism under the DPDPA is three-fold:

The first one is via a consent manager to the Data Protection Board of India.
The second is through the concerned data fiduciary.
Thirdly, by approaching the Data Protection Board of India. An appeal can be filed with the Telecom Disputes Settlement and Appellate Tribunal against the order of the Board.

The Board shall follow the following steps while deciding the dispute:

Firstly, the Board shall determine whether there exists sufficient ground to proceed with an inquiry. If the grounds are insufficient, then the board will close the proceedings after recording reasons for the same.
Upon finding sufficient grounds for inquiry, the Board shall be obligated to find out whether there has been a violation of compliance with the act, rules, or regulations.
Thereafter, if the board finds default, it shall impose a monetary penalty as necessary.

Appeal against the order of Board

An appeal against the order of the Board can be filed within 60 (sixty) days from the date of receipt of the order or direction appealed against to the Appellate Body, i.e., the TDSAT (Telecom Dispute Settlement and Appellate Tribunal). The TDSAT shall expeditiously dispose of the appeal within six months, and if unable to do so, the TDSAT shall record reasons for the same in writing. The TDSAT shall not be bound by the Civil Procedure Code (CPC), 1908, but rather by the principles of natural justice and the provisions of this Act, but it shall have the power of a civil court under the CPC, 1908.

Appeal to the Supreme Court of India

An appeal against the order (except an interlocutory order) of the TDSAT within ninety days from the date of the decision or order appealed against. There are certain grounds specified in Section 100 of the Code of Civil Procedure, 1908. That is, these appeals must include a substantial question of law that may either be presented by the party in a memorandum of appeal or the court may itself formulate such a question.

Online portal for public grievance redressal

Grievance Redressal under the Centralised Public Grievance Redress and Monitoring System (CPGRAMS) is governed by a nodal agency called the Department of Administrative Reforms and Public Grievances. Its role is to formulate policy guidelines for citizen-centric governance and the redress of citizen’s grievances. This portal is provided to citizens by the government to help them effectively redress their grievances.

Loopholes in the DPDPA, 2023

Certain loopholes in the Act can lead to disruption of the data protection mechanism; some of such loopholes that need to be addressed are as follows:

Data storage: There are no clear guidelines on how data fiduciaries can retain or store personal data; this leaves chances of potential misuse or data leaks. The government should notify the public of some standards of security to be adhered to while storing data. This standard shall store data in such a way as to make it highly confidential and shall be only accessible to persons with a passcode.
Storing consent: The Act does not have any procedure for storing consents. There needs to be some mechanism for storing consents. For example, the government is establishing a procedure for storing parental consent on the Digilocker platform and soon it will be implemented.
Period for data retention: The sub-section 11 of Section 8 stipulates that “a data principal shall be considered as not having approached the data fiduciary for the performance of the specified purpose, in any period during which she has not initiated contact with the data fiduciary for such performance, in person or by way of communication in electronic or physical form.” This leaves ambiguity as the term “any period” can be misinterpreted. For instance, if an individual uses an application once a year but every year, the liability that arises upon such application is that of collecting consent, i.e., the application shall be liable to collect consent every year or on the first instance of the use of the application. This implies a need for an expiration date for consent in such cases. This may be within the powers of the Data Protection Board of India (DPBI) to clarify further for each case.
Record keeping: The Act has no provision for record keeping, unlike the GDPR, which has provisions for maintaining records of processing activities (ROPA).
Governmental interference: The government is free to process personal data for various reasons and for an unlimited period. There is a need for an established mechanism or procedure for the state agencies to obtain personal data for prevention, detection, investigation, etc., i.e., there shall be accountability of the governmental organisations. Also, there needs to be maintenance of records of inter-departmental sharing of personal data with them.
Public data: The Act does not provide whether the data fiduciaries are free to process the data available publicly. The act also doesn’t provide guidelines for the use of public data. The fact that the Act does not apply to public data doesn’t mean that one can arbitrarily use the public data.
Procedure for disclosure to another data fiduciary: If personal data has to be transferred, there is a need for establishing a procedure that shall secure the transfer of data from one data fiduciary to another to maintain the security of data during such transfer.
Procedure for cross-border data transfer: When data travels internationally, there arises a need for a stringent protocol to be adhered to by the data fiduciaries, which is absent in the present DPDPA.
Missing timeframes: The Act does not provide for timeframes for responding to the requests of Data Principals by the Data Fiduciaries, timeframes for resolving their concerns, timeframes for reporting data breaches, timeframes for the functions of the DPBI, etc.
Compensation: The Act does not provide for a provision that gives a right to the data principals to claim compensation or a power to the Board to award compensation for data breaches. Also, data privacy is a matter that can affect the mental and emotional condition of an adult as well as a child. Therefore, the Act fails to provide for a provision for compensation on account of a loss of mental well-being. The Act only provides that all the sums procured by way of penalty shall form part of the Consolidated Fund of India. The procedure or ratio for distribution of this fund to the affected data principals needs to be specified by the government.
Exceptions to start-ups: The penalty for breach of the provisions of this Act for start-ups shall be different, rather than completely omitting them from the application of some crucial provisions of the Act. The Legislature can set a limit to the penalty for start-ups under the Schedule.
Missing titles for sections: There are no section titles for each section in the DPDPA; apart from this, all the other acts have a title for each provision.
Compliance-based Act: The DPDPA does not have provisions regarding cyberattacks, hackers, ransomware attacks, etc. The fact that the Information Technology Act of 2000 governs this aspect makes room for the DPDPA to be a compliance-based act.
Potential gaps in the regulatory framework: Apart from the two procedures stated above, several other gaps need to be filled by the legislature through the medium of rules and regulations under the Act.

Penalties

Penalties can reach up to INR 250 crore for various data breaches under the Act. Although the previous draft of the bill had a penalty of up to INR 500 crore. Furthermore, there are no provisions for imprisonment in the Act and only monetary penalties are there.

Conclusion

The K.S. Puttaswamy judgement gave the citizens of India a sword of right to privacy, and after the DPDPA came into existence, the blunt sword began to get its sharpness. It shall be up to the judiciary to increase the sharpness of this sword through the means of orders and judgements. The sword has to be made sharper, because right now, in case of a data breach, the most any affected person may get is a detailed notice of the concerned breach. The Sword’s capabilities are limited to imposing a monetary penalty on a data breach offender by making him pay a fortune.

The sword shall be intimidating in this field, as cases of data breaches in India were the second highest globally, according to a report by digital security firm Gemalto. Some of the major data breaches that occurred recently include the Dominos India Cyberattack (May 22nd 2021) resulting in the data breach of 180 million orders; the Air India Cyberattack; the State Bank of India Cyberattack that exposed the personal and financial data of the customers; the Aadhaar attack in early 2018, wherein anonymous sellers on WhatsApp provided unrestricted access to the Aadhar database; and many more.

Considering these data breaches happening across the country, implementing the sword of privacy is the need of the hour, and the execution of this sword has to start immediately. Looking on the bright side of this Act, one interesting fact of DPDPA is that it acknowledges a person as ‘she’ and ‘her’. This is indeed a heart-warming gesture by the legislature.

References

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Marital rape : India’s legal labyrinth

By

Vanshika Kapoor

-

November 29, 2023

0

Virtual rape — Image Source: https://rb.gy/temyqx

This article is written by Ashok Sharma, pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho, retired Lt. Col, a 1st year law student at St. Thomas College of Law, Greater Noida and edited by Shashwat Kaushik. The issue of criminalising marital rape in India is knotted in different strands of public opinion, societal traditions and archaic laws. An attempt has been made in this article to present a balanced perspective, taking into account the manifestations of change in western countries.

It has been published by Rachit Garg.

Table of Contents

Introduction

The word ‘rape’ originates from the Latin word ‘rapere’, which is used to describe an act “to steal or carry off,” alluding to the prevalent behaviour of ancient Romans who stole their wives from other tribes. In the very nature of crimes against humanity, rape of women is embedded in the evolution of mankind and there are many references to the acts of spousal rape in ancient texts. This inhumane crime against women continues to this day and age across all nations, societies, religions, cultures and ethnicities.

Considered as a violation of human rights ‘rape’ is an act of forced sexual intercourse committed by a man (husband) on a woman (wife) against her consent or free will. To subjugate the defenceless victim, the rapist often resorts to violence, intimidation and the threat of dire consequences, forcing the victim to submit to the carnal desires of the perpetrator. Rape manifests in many forms, including gang rape, date rape, child rape, serial rape, marital rape, statutory rape, mass rape by conquering armies, incest, and many other pervasive forms of sexual assault on the dignity of women.

In ancient times, women in a patriarchal society like ours were treated as the property of their father and, after marriage, the property of their husband. An act of rape was considered damage to her father or husband and not to the dignity of the woman victim. The view that marriage itself gives consent to sexual intercourse and, on the other hand, the argument that forced sexual intercourse against free will or consent is rape, irrespective of the nature of the relationship between the man and woman, are the two conflicting schools of thought prevailing in our country.

Let us dive into the vexed issue of marital rape, its definition, history, legal status, prevalent laws in other countries and challenges in framing laws related to marital rape in Indian legal jurisprudence.

History and nature of marital rape

The earlier perception of the relationship between husband and wife hinged on the notion that men were superior to women. Being the sole earning members, men deserved more respect and authority in the family setup and women played second fiddle. Control over the woman’s body by her husband was treated as a marital right irrespective of her personal choices, likes, dislikes, desires or wishes. Abhorrent practises like ‘Sati’ in Rajasthan, where women jumped into the funeral pyres of their husbands, were prevalent to save the women’s honour from the invading armies. The sacrifice was glorified in folklore as an example of women’s chastity and fidelity.

As society evolved and women began to create their own space and excel in different walks of life, influenced by the winds of change blowing across the world, the voices in support of equal rights for women began to grow louder in the Indian social milieu. No longer a silent revolution, the issues around women’s independence, dignity, and right to autonomy over their bodies have acquired shrill and definitive voices being raised in Parliamentary debates, social media and by way of public interest litigations now under the radar of the Supreme Court of India.

The basic nature of rape remains the same in all forms of rape. For ease of identification and reference, different types of rape are associated with act-specific terminologies. Marital rape is not different from any other form of rape except that here the act of rape is committed upon an unwilling spouse by her husband. The basic element of power dynamics is evident in all forms of rape. In marital rape, there is a sense of entitlement by virtue of the relationship and there is no fear of any retaliatory or punitive action, especially in societies and countries where the law is silent on this issue, which is festering under multiple layers of turbulent marital relationships.

Definition of rape and related laws

India’s legal system inherited rape laws from British colonial era laws founded on Victorian principles. The offences against the body are described in Sections 299 to 376 in Chapter 16 of the Indian Penal Code, 1860. The act of rape is defined by Section 375 as an act committed by a man through the penetration of his penis, any object or any part of the body, or by manipulating any part of a woman’s body to perform vaginal, oral or anal sex with the woman or with another person. The act of performing oral-vaginal and oral-anal sex on a woman, either by a man or by making a woman engage in these acts with a man or another person, constitutes the offence of rape.

This section describes the following seven different scenarios to be considered in establishing an act of rape:

If rape is committed against the will of the woman.
If rape is committed against the consent of the woman.
If consent is obtained by inducing fear in the woman.
When a woman is deceived into believing that the rapist is her lawfully married husband.
Consent obtained from women under intoxication and/or who are of unsound mind.
Sex with or without consent of women under 16 years of age.
When a woman is unable to communicate consent.

This section provides the following two explanations

Firstly, the term ‘vagina’ (the internal female reproductive organ) is considered inclusive of the outer parts of the female genital area.

Secondly, consent means the wholehearted willingness of the woman to participate in the sexual act as indicated or expressed by words, gestures or any form of verbal or non-verbal communication. A woman who does not physically resist the act of penetration will not be regarded as consenting to the sexual activity on the sole basis of non-resistance as this may happen due to fear of violence and torture.

This section has the following exceptions to the act of rape

A medical procedure or intervention is not an act of rape.
Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not considered an act of rape.

The provisions of the law established over a century and a half ago failed to acknowledge marital rape except by way of an indirect reference in the above-mentioned exceptions, where-in an act of sexual intercourse by a man with his wife under fifteen years of age is defined as rape sans the prefix ‘marital’. By way of interpretation, the same act committed upon an unwilling wife above the age of 15 is not an act of rape and therefore it is not cognisable under the law. In later parts of this article, we shall examine how the rationale of these provisions was challenged in the courts, paving the way for necessary amendments, yet the goal of defining marital rape and its punishment remains elusive.

The absence of a law on marital rape in India does not imply that adequate laws do not exist in the statute for sexual offences against women. Indian laws on dowry, divorce, spousal maintenance, child support, inheritance and sexual offences are very comprehensive and often viewed as pro-women in intent, letter and spirit.

Laws addressing sexual offences against women

Let’s take a bird’s-eye view of the current laws addressing sexual offences against women. For the sake of brevity, only the essential laws have been mentioned.

Section 509 of the IPC: This section makes any act or action committed to insult a woman’s modesty punishable with a prison term of simple imprisonment of 3 years and payment of a mandatory fine. Intentional acts or actions committed through offensive gestures, words or sounds (cat calls, whistles, etc.) or by way of showing off any object fall within the ambit of this section. The prison term was raised from one year to three years and the imposition of a fine was made mandatory in the sentencing via the Criminal Law Amendment Act of 2013.
Section 354 of the IPC: The law prescribes a punishment of imprisonment for a term extendable up to two years, or with a fine, or with both in cases of assault or use of criminal force upon women to outrage her modesty or with the knowledge (realisation) that such actions are likely to cause affront to a woman’s modesty.
Sub-sections added via the 2013 Amendment in IPC:

354(A): This section categorizes the following actions as acts of sexual harassment committed by men:

intrusive and undesirable attempts to make physical contact by way of unambiguous and suggestive sexual advances,
solicit sexual favours, or
attempt to show pornographic material to a woman against her consent.

The punishment for offences specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) is rigrous imprisonment for a term extendable up to 3 years, or with a fine, or with both.

The punishment for the offence specified in clause (iv) of sub-section (1) is imprisonment for either description, for a term that may extend to one year, or with a fine, or both.

354(B): Any act of assault or use of criminal force upon a woman with the purpose of disrobing or compelling her to become naked is an offence punishable with imprisonment of either description for a term ranging from a minimum of 3 years up to 7 years with liability to pay a fine.

354(C): A man who takes photographs of a woman or watches them in a private act without their consent is guilty of voyeurism, an offence punishable by a minimum prison term of 1 year extendable up to 3 years and liability to pay a fine in case of first conviction. In cases of second or subsequent convictions, the minimum prison term is 3 years, extendable up to 7 years, with the liability to pay a fine.

354(D): Stalking is a form of harassment that manifests in a man following a woman either physically or online with the intention to harm or frighten her. The punishment for the first conviction is imprisonment for up to 3 years and liability to pay a fine. For the second conviction, the prison term is extendable up to 5 years with the liability to pay a fine.

Amendments to the Criminal Procedure Code, 1973

In cases involving rape and outraging the modesty of a woman, special provisions exist for the recording of FIR by a woman police officer.
The victims of rape or acid attacks are entitled to free first aid and medical treatment.
Lapses on the part of public servants or hospitals will warrant punishment.

Amendments to the Indian Evidence Act, 1872

In cases where a sexual act is established by the accused, there is no requirement for evidence of consent on the part of the woman.
The onus to prove consent on the part of the woman rests on the accused.

Sexual Harassment of Women (Prevention, Prohibition, and Redressal) Act, 2013

The law offers protection and a mechanism to report cases of sexual harassment at workplaces through the creation of internal complaints committees and local complaints committees.

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act)

This law specifically addresses sexual crimes committed against children under 18 years of age.
Acts of sexual assault and penetrative sexual assault against a child, irrespective of his/her gender, are punishable with a minimum of 3 years and a maximum of 7 years in jail.
Such acts, when committed by those in positions of power like management and staff of jails, remand homes, educational and religious institutions, relatives, guardians and so on, are classified as aggravated sexual assault.
Abatement of an offence or attempt to commit an offence is also punishable under the Act.
It is obligatory for any person who has knowledge of an offence or has a reasonable apprehension of an offence under the Act to report to the police.
The law protects disclosure of the identity of the child in the media.

The Protection of Women from Domestic Violence Act, 2005

Section 3 of the DV Act comprehensively defines different acts of domestic violence that cause harm or endanger the health, safety, life, limb or well-being of the aggrieved person and includes physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse.

The section explains different terms like physical abuse, sexual abuse, verbal and emotional abuse and economic abuse.

It suffices to say that the catalogue of laws dealing with various legal issues facing women in India is quite exhaustive and accommodating in nature. There are no discriminatory provisions related to women in any law of the land and this dictum applies to all faiths and religions. The recent abolition of the system of triple talaq with respect to Muslim women is an example of India’s secularism.

Laws on marital rape in other countries

In many countries around the world, marital rape is classified as a crime with varying degrees of punishment. After World War II, stories of the horrors of war, including the well-documented case of ‘comfort women’ from countries like China, Korea and the Philippines who were recruited to work in comfort stations established by the Imperialist Japanese Army only to be subjected to sexual slavery by the Japanese soldiers, stirred the consciences of the societies. Following the feminist movement in the latter half of the 20th century, the issue of marital rape came into the public domain. In 1995, all countries represented at the U.N.’s Women’s Conference voted in favour of a resolution endorsing the rights of wives to refuse the sexual demands of their husbands. Today, marital rape exemption is illegal in 80 countries and marital rape is an exclusive crime in 52 countries like the USSR, USA, UK, Canada, Sweden and Poland. Unfortunately, India is not yet on this coveted list.

We shall discuss some major developments in a few select countries that help tilt the scales in favour of marital rape legislation, thereby ending centuries of unspoken and suppressed expressions of a silent majority of women across all boundaries of cultures, religions and nationalities.

USSR

The erstwhile Soviet Union was among the first countries to criminalise marital rape in 1922. Information on the subject is suggestive of the possibility of change due to the larger participation of women in the workforce and the emergence of a new social order that influenced lawmakers in favour of women’s rights. This development led to the criminalisation of marital rape in Scandinavia and many other countries of the Soviet bloc.

United Kingdom

In the UK, there is a common law system where laws on the statute are enacted by the British Parliament and the courts are also guided by previous judgements often cited as precedents and referred to in deciding cases of a similar nature. This practise, based on the doctrine of ‘stare decisis,’ which means “to stand by things decided,” was adopted to ensure equality in the dispensation of justice and for quick disposal of cases. Case-by-case decisions incrementally expand the expanse of the common law system and it is amenable to change to conform with the changing times.

In the UK, the marital rape exemption was based on the reasoning of Sir Matthew Hale, the then Chief Justice of England, who propounded his ‘Implied Consent Theory’, where-in he wrote:

“But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.” An amendment was later inserted to add, “A husband also cannot be guilty of a rape upon his wife.”

For around 150 years, the above-mentioned views of Sir Hale remained unchallenged. As the wheels of time moved, the dynamics of marriages all around the world underwent a complete metamorphosis. Women graduated to being earning members of the family and made inroads into male bastions. Marriage is now considered a partnership of equals, and any attempt to make women subservient to men in marital relations was resented and frowned upon, leading to early breakups and divorces.

The following cases reported in the British Courts helped to shape judicial opinion in favour of marital rape.

R vs. Clarke (1949)

Facts of the case

In this case, the wife obtained a court separation order with the clause that she is no longer bound to cohabit with her husband. Notwithstanding the restraint imposed by the court, her husband had sex with her against her consent and, in the process, caused her bodily harm.

Issues involved in the case

The husband was indicted for an act of rape against his wife.
An appeal to quash the charge was presented on the ground that the husband can not be charged for the offence of rape of his own wife.

Judgement of the Court

Justice Byrne J. agreed that the husband can not be held guilty of rape, with the exception in the instant case being the forfeiture of the husband’s right to have non-consensual sex with his wife as specified in the court order. The Court ruled that the husband’s act of forcing sex on his unwilling wife constituted an act of rape.

R vs. Miller (1954)

Facts of the case

The wife left her husband and filed a divorce petition. Before hearing of the petition, the husband had non-consensual sex with his wife and in the act, he caused bodily harm to her as she suffered from a nervous breakdown as a result of her being thrown on the floor.

Issues involved in the case

The husband was charged with rape and causing bodily harm. The defendant cited the exemption for marital rape and argued that nervous shock does not amount to bodily injury.

Judgement of the Court

The defendant was charged with the offence of causing bodily harm and not for an act of rape. A series of similar cases led the judiciary to evaluate the relevance of Hale’s proposition as irrelevant in the modern age. In 1992, the exception to marital rape was removed from the ambit of common law and marital rape was defined as the act of penile penetration upon a non-consenting partner. Subject to certain conditions, the punishment for marital rape in the UK is on a scale of 4 to 19 years. In some cases, a life sentence can also be awarded.

USA

Colonial influence

As a former colony of the British Empire, the USA inherited the English common law system that accepted Lord Hale’s doctrine of marital rape exemption on the basis of a woman’s irrevocable consent for sex. Hale’s theory received support from the ‘Unites Theory’ formulated by Blackstone in the middle of the 18th century. According to the Unites Theory, upon marriage, husband and wife become one; that is to say, in a marriage, the wife forfeits her civil identity and is regarded as the property of her husband. The status of the woman was defined by the legal principle of coverture, which implies married women had no legal or economic identity except that of their husband. Similar views held sway over the judicial and legislative bodies and the marital rape exemption remained frozen in the statute over the years.

Rideout vs. Oregon (1978)

In 1977, the Oregon state legislature voted to remove the marital rape exemption. The following year, John Rideout, a resident of North Salem, was arrested for raping his wife, Greta, in front of their 2-year-old daughter in their apartment.

The case received wide publicity due to the relentless efforts of Advocate Laura X, a crusader in favour of criminalising marital rape in the United States. She led a successful campaign against the marital rape exemption law in California in 1999. Her efforts helped raise public awareness of marital rape cases in the states of New York, Florida, Virginia, Georgia, Nebraska and Ireland. John Rideout was acquitted of the charge of first-degree rape by a unanimous verdict of the jury. By 1993, marital rape was criminalised as a crime in the Sexual Offences Code in all 50 states of the USA.

How to report marital rape in India

Marital rape is not a crime in India. However, this does not prevent a battered wife from reporting an act of rape committed by her husband against her consent or free will.

By common sense and logic, as with any other act of rape, a rape of this nature will also be reported to the police for lodging an FIR and subsequent investigations that may include medical examination of the victim, recording of her statement in the presence of Magistrate First Class, and adherence to all laid down protocols under the law. The striking difference in the case of marital rape will be the recording of the name of the accused, which is the victim’s husband.

In such cases, the police will record the FIR as a case of rape under Section 375 of the IPC and mention the name of the husband as an accused.

Marital rape : the legal cauldron in India

In 2007, the UN Committee on the Elimination of Discrimination Against Women recommended that India “widen the definition of rape in its Penal Code to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape…..”

The debate on the legality of marital rape in India continues to spark discussions in the judicial and legislative domains, with strong opinions being expressed on either side of the argument. The issue of marital rape is actively pursued by human rights activists, women’s organizations, and social media platforms, inviting opinions and reactions from common men and women.

Let us understand some key developments in the legal jurisprudence on the issue of marital rape in India.

Judicial precedents

Sakshi vs. Union of India (2004)

In this case, Sakshi, an NGO, filed a public interest petition with the Supreme Court of India, seeking judicial directions to interpret the term ‘sexual intercourse’ liberally and for the inclusion of all types of penetrative sexual assault within the definition of rape. This case had references to marital rape exemption in the written submissions and arguments of the learned counsels.

Citing the principle of stare decisis, the Supreme Court refused to entertain the petition. However, the Court issued several directions to make the trial procedure more victim-friendly.

Independent Thought vs. Union of India (2017)

In this case, Independent Thought, an NGO working for children’s rights, filed a public interest litigation in the Supreme Court of India challenging Exception 2 to Section 375 of the IPC as violative of the rights of the married girl child between the ages of 15 and 18 years, as the same constitutes rape by the husband.

In a historic judgement, the Supreme Court struck down Exception 2 to Section 375, IPC, as unconstitutional. According to this section, an act of forcible sex by a husband on his unwilling wife who is not below 15 years of age is not an act of rape. The judgement makes sexual intercourse by a husband without the consent of his wife, who is under 18 years of age, a crime.

Delhi High Court split verdict on marital rape

On May 11, 2022, the Delhi High Court gave a split verdict on the issue of criminalising marital rape in response to a bunch of petitions urging the Court to strike down Exception 2 to Section 375 of the IPC as unconstitutional.

According to Exception 2, sexual intercourse by a husband with his own wife who is not under 15 years of age is not an act of rape. The interpretation of this exception clause by the two Hon’able Judges differed, with their views stretching to opposite sides of the constitutional spectrum.

Justice Shakdher’s perspective

In his judgement, Justice Rajiv Shakdher highlights the difference between an unmarried victim of rape who is legally protected vis-a-vis the fact that “the same regime does not kick-in if the complainant is a married woman.” Further, he opines that a woman reserves the right to withdraw consent at any point in time, irrespective of her relationship with the accused. To safeguard the rights of women over their bodies, the exception deserves to be struck down as unconstitutional, being violative of the following articles of the Constitution :

Article 14 (equality)
Article 15 (non-discrimination)
Article 19 (1)(a) (right to freedom of expression, which includes a woman’s right to assert her sexual agency and autonomy)
Article 21 (right to life and liberty)

Going a step further, the judgement held Section 376B (Sexual intercourse by husband upon his wife during separation) to be unconstitutional as it imposes lesser punishment and therefore there is no justification to treat separated husbands in a manner different than any other rapist.

Justice Shankar’s perspective

In the verdict of Justice Hari Shankar, the exception to marital rape was held to be constitutional on the premise that sexual intercourse by a husband with his wife does not amount to rape. The judgement draws a comparison between a non-consensual sexual act with a stranger and a non-consensual sexual act with one’s husband. It was noted that the level of outrage likely to be experienced by a woman over being raped by a stranger would be far more intense than the outrage over non-consensual sex by her husband. It was expressed in the judgement that the exercise of judicial authority on this issue would amount to interference in the legislative sphere.

The Hon’able judges have granted them leave to appeal to the Supreme Court and there is a glimmer of hope for the advocates of women’s rights.

Differing perspectives

The Law Commission of India has not supported the move to criminalise marital rape because it may trigger an avalanche of false cases by spouses. The politicians on the floor of the House have expressed their reservations, as they perceive factors like literacy, poverty and a lack of awareness as obstacles to the implementation of the proposal.

Conclusion

The element of consent is essential in sexual relations between opposite sexes of legally permissible age. The act of sex should not be viewed narrowly as a timed physical union for momentary sensual pleasure. The union of a man and woman is vital for the continuation of human life on this planet; therefore, voluntary participation in this act of intimacy is desirable human behaviour. When the husband indulges in a non-consensual sexual act by forcing himself upon his wife against her wishes, he commits an act of marital rape. Therefore, he must be punished for such an act that is not yet acknowledged as a crime in our legal paradigm. Presently, cases of spousal sexual assault are addressed in other relevant sections of the IPC, Domestic Violence Act, Divorce laws, POCSO Act, etc. Unlike in western countries, the consensus on the issue of marital rape still eludes legislative intent and judicial concurrence in India.

References

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:

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Uttar Pradesh Shops and Establishment Act, 1962

By

Vanshika Kapoor

-

November 29, 2023

0

This article is written by Mohammed Fardeen Yusuf. This article provides the readers with an in-depth analysis of the U.P Shops and Establishment Act,1962. It gives an overview of the purpose and objective behind the enactment of the Act. Further, it gives a detailed explanation of the important definitions of the Act, followed by an overview of the important provisions. The article also discusses the important judicial pronouncements relating to this Act.

It has been published by Rachit Garg.

Table of Contents

Introduction

This Act is also known as the U.P. Dookan Aur Vanijya Adhishthan Adhiniyam, or Uttar Pradesh Shops and Establishments Act, 1962 and the Legislative Council of U.P. passed it in Hindi on December 25, 1962. Furthermore, it was listed in the Uttar Pradesh Gazette after receiving the assent of the President on 18 December 1962. This Act certainly applies to all the shops and establishments operating in the state of Uttar Pradesh to be in compliance with the rules under this Act for the management of shops and commercial establishments, which can be further understood in this article.

Purpose and objectives of Uttar Pradesh Shops and Establishment Act, 1962

The purpose and objectives of this Act regarding shops and establishments may vary across diverse states; however, usually, the fundamental objectives are similar. There may be some differences in the purposes and objectives of the Act as articulated in different statutes. Let’s understand the purpose and objectives of the Act:

Maintenance of work records
Regulations for the employment of children and women
Significant working conditions
Providing maternity leaves and benefits
Prescribe the functioning of the shop concerning the opening and closing hours of shops and commercial establishments
Business hours with hours of work and overtime work
Essential terms and conditions of service
To provide intervals for rest
Wages, including salary, bonus, and allowances to be paid
Shops and commercial establishments are to be registered
Appointment to be made of the Inspector, Chief Inspector, and Deputy Chief Inspector and delegating powers

Important definitions

There are several definitions described under Section 2 of the UP Shops and Establishment Act. Let’s discuss the important ones below:

Commercial Establishment

Section 2(4) defines “Commercial Establishment” as the premise of a shop or factory in which any trade, business, or manufacturing is taking place and the profits are earned directly and indirectly from these activities, including the printing and journalist’s work as well. The establishment that deals with “insurance, banking, shares, stocks, and brokerage will also be referred to as a commercial establishment. Further including cinemas, theatres, and other places of entertainment and public amusement” will also fall under this definition.

Employee

Section 2(6) talks about “Employee” as a person who is employed wholly on wages by the employer in relation to any trade, business or manufacturing as carried in a shop or commercial establishment which includes the following-

Ward staff, the member of the watch or mali, and the caretaker.
Any other staff or the clerk of the industrial establishment, not covered under the provisions of the Factories Act, 1948.
A craft or apprentice or piece-rate worker.

Employer

Section 2(7) defines “Employer” as the person who has the charge or holds and has the ultimate control over the trade, business or manufacture that is carried in a shop or commercial establishment and also includes the manager with an agent or any other person who is under the control of the employer for the managing and control of such trade.

Factory

Section 2(8) complies with the meaning of the Factories Act of 1948, which certainly does not include the premise of factory or clerical work or those upon which the provisions of that Act do not apply.

Shop

Section 2 (16) defines “Shop” as referring to the premises of any trade retail or wholesale business taking place and the customers enjoying the services, including the warehouses, offices of business and godowns.

Wages

Section 2 (18) talks about wages as the remunerations by salary or allowances in the terms of money only payable by fulfilling the objectives of employment, express or implied, will be payable to the employee including the bonuses, the sums upon termination, remuneration for employment and any other additional sums for employment.

Essential Provisions of Uttar Pradesh Shops and Establishment Act, 1962

The whole Act would stand as a necessity for the proper means of setting up business or trade in the state of Uttar Pradesh, but there are provisions that are to be followed for easy business workflow. Below are the necessary provisions to be kept in mind in The U.P Shops and Establishment Act 1962:

Section 3 (The provisions of the Act not to apply to certain persons, shops and commercial establishments)

Provisions of this Act do not apply to:

The employees who are appointed for confidential, managerial or supervisory work in any shop or commercial establishment, which include five employees and the employees exempted from the shop or commercial establishment shall not exceed more than ten per cent of the total employed persons.
Employees who are associated with an intermittent type of work like a traveller or canvasser.
Government or office of the local authorities.
Authority or offices of the RBI.
Establishment for the treatment or care of the sick infirm, destitute or mentally unfit.
Employers’ family members.

The notification shall be made by the state government in the interest of the public to exempt the subjects of shops or commercial establishments under the provisions of this Act.

Section 4 (A) (Registration of shops and commercial establishment)

It is the sole responsibility of the inspector for the maintenance of such records, which include a register of all the shops and commercial establishments that are registered under this Act.

Provided that different such registers may be maintained for different areas and for different classes of shops and commercial establishments.

Section 4 (B) (Registration)

The owner of the shop or the commercial establishment should apply to the Chief Inspector for the registration of the shop or commercial establishment within three months of the commencement of the business or three months of the commencement of the Uttar Pradesh Dookan Aur Vanijya Adhisthan (Sansodhan) Adhiniyam as prescribed which is later, apply to the Chief Inspector for registration of his shop or commercial establishment.
Every application for registration under sub-section (1) shall be in such form and shall be accompanied by such fees as may be prescribed.
Upon the satisfaction of the Chief Inspector upon receiving the amount of fee, the shop or commercial establishment is to be registered and regulated under Section 4-A, and shall also issue a certificate of registration to the owner in the manner prescribed.

Section 4 (C) and (D) (Term and Renewal of Registration Certificate/ Duplicate Registration Certificate)

The certificate granted under the previous Section will be liable for renewal of the certificate of registration from time to time as prescribed by the Chief Inspector. If the registration certificate is “lost, destroyed, torn, or is defaced or otherwise becomes illegible”, the Chief Inspector shall, to proceed only after the payment of the prescribed fee, issue a duplicate registration certificate.

Section 5 (Hours of business)

The shops or commercial establishments not being a shop or commercial establishments mentioned in Schedule II shall not open earlier or close later than the period prescribed during registration.
Regarding Sub-Section (1), the hours for the closing and opening of the shops or commercial establishments are to be prescribed for various areas.
Notification shall be made in the official gazette by the state government to add or remove any class of shop or commercial establishment under Schedule II of this Act.

Section 6 (Hours of Work and Overtime)

The employer shall not allow any employee to work on any day for more than-

Five hours as a child.
Six hours for a young person.
Eight hours for any employee.

Provided, if the employee not being a young person or a child shall be allowed to work more than the prescribed limit the total number of working hours including overtime should not exceed ten on any day only except on the day of stock-taking or the making of accounts.

Further, it is provided that the total working hours of overtime shall not be more than fifty in any quarter.

“Quarter” refers to the period of three consecutive months starting from the 1st of January, 1st of April, 1st of July or 1st of October

2. Any employee who has worked for more than the hours prescribed under clause(c) of sub-section(1) is to be paid by the employer for wages that are twice the ordinary rate including every overtime work.

“Ordinary rate” refers to the basic wages including the allowance, the cash that is equivalent to the advantage of the concessional sale of food grains and other items for the employee as the employee is entitled to, not including the bonus.

The calculation for the wages that are payable to the employee for the overtime work for a day is to be considered as eight working hours.

Section 7 (Intervals for rest and spread-over of working hours in a day)

The working hours for the shops and commercial establishments shall be arranged in a manner in which the employee gets an interval for a minimum of half an hour after five hours of work and this period of work and intervals including the rest of the employees shall not be more than twelve hours a day.

Provided that the State Government keeping the interest of the public may alter such conditions as required generally for the different classes of shops and commercial establishments.

Section 8 (Close Days)

The shop or commercial establishment not included in Schedule II is to be closed one day a week, and also on public holidays.
The close day selected by the owner shall be subjected to approval from the authority that is appointed by the state. A notice highlighting the days of the holiday shall be displayed in the shop or commercial establishment.
The days for a holiday or close days shall not be subjected to alteration more than once in a year, which would again require approval as per Sub-Section (2). The alteration will only take effect on the first day of January as:

The close day does not match the prescribed day of the employer, which differs depending on the locality of the establishment, to be provided by the authority mentioned under Sub-Section (2) for a prescribed close day.
The authority to declare only upon the suggestion made by the majority of the employers of that locality, after six months on which the close day was earlier fixed, shall alter the close day, which is not a public holiday.

Section 13 (Wage Period)

The employer should fix a period certainly referred to as the wage period as of which the wages are to be payable to the employee.
The wage period shall not exceed one month.
The wages are only to be paid upon the said period as mentioned.
The wages earned by him including the period of leave and the remuneration that is due to be paid-

On the termination of his employment by or on behalf of the employer as before the expiry of the second working day for such termination.
The termination of employment is made by the employee on or before the next payday.

Section 14 (Payment of wages for the period of earned leave)

The employee who wants to proceed with earned leave shall be given an advance payment of wages towards the half period of leave, including the wage for the wage period preceding such leave. It shall be paid, including the wages for the remaining half period and the first day’s wages on the day of resuming duty.
The period of sickness will include the wages that are to be paid to the employee on the first day of resuming duty.

Section 21 and 22 (Prohibition of employment of children and prohibition of employment of women and children during the night)

Children shall not be required or allowed to work in any shop or commercial establishment but as apprentices, which is to be notified to the government through notification.
Women and children shall not be required or allowed to work as employees during the night in any shop or commercial establishment.

Section 24 (Right of Absence during Pregnancy)

A seven-day notice is required to be given by the pregnant woman employee to the employer for a period of leave not more than six weeks before the date of delivery.
Upon receiving such notice, the employer approves being absent from duty for the prescribed period of six weeks before the date of delivery.
The employer also has the responsibility upon receiving such notice, to require an examination to be conducted by a lady doctor at his cost, but if she desires or shall include any qualified medical practitioner.

If the woman refuses to be the subject of such medical examination or is found not pregnant upon such examination, the child is not to be delivered within six weeks from the date of leave.
The employer shall refuse to provide leave from duty if such a situation arises, or else the women employee is liable for relief from duty.

Section 30 (Power of inspector to enter)

This part defines the powers of an inspector to enter all those shops and commercial establishments to examine the functions, check up registers and other related documents. The inspector can also accompany such a person for assistance with these works with the same powers as directed by the inspector and can also cease articles that are not in compliance with this Act.

Section 32 (Maintenance of registers, and records by the employers)

The mandatory obligation of the employer of a shop or commercial establishment is to maintain registers and records of work and to display the required notices.

Section 36 (Limitation of prosecution, courts empowered to try offences under this Act)

The court shall take cognizance of any offence made under this Act, except only on the complaint that is made in writing within six months of the date on which the offence is alleged to have been committed. Any other court, not inferior to that of a Magistrate of the Second Class, shall have the authority to try any offence under this Act or the rules made thereunder.

Section 39 (Application of Workmen’s Compensation Act and Rules)

The provisions of the Workmen’s Compensation Act, 1923 including the rules made under shall be mutatis mutandis be applicable to every employee of a shop or the commercial establishment.

Landmark case laws

L.I.C of India v. Anwar Khan, (2007)

Facts

In this case, a suit was filed by Anwar Khan and expired, as his legal representatives are the present respondents. The suit was filed as per the agreement between the field officer and the LIC, whose age of retirement is 60 years, and further appeals made by LIC were dismissed. The second appeal was filed before the HC and is said to be pending. In the meantime, Anwar Khan assisted the authorities under the Payment of Wages Act, 1936, claiming compensation. LIC stated that the Development Officers are not covered under the act as they receive Rs. 1,000/- p.m. Later on, it was declared by the Assistant Labour Commissioner that the claimant was entitled to double compensation. Further modifications were made to the award as the claimant was entitled to the wages with compensation, and a writ petition was filed questioning the validity of the order passed by the appellate authority.

Issue

The validity of the decision passed by the appellant-LIC of India, for fixing the age of retirement of the Development Officer, now called Field Officer, at 58 years.

Judgement

The petition was dismissed by the learned single judge, who held that the “Letter Patent Appeal” is not maintainable. As mentioned above, Anwar Khan passed away in 1990. The authorities standing before the HC under the Act must not have decided the claim that was made because it was for the declaration, and further, no relief was granted. The Act is said to have no application, as a result of which the compensation is not payable.

Ganesh Floor Mills v. Labour Court (1970)

Facts

In this case, the workman was a servant, as provided by the company to their officers at the petitioner’s residence, and would take leave only on Sundays. Later on, he was sued by the employer for taking holidays as misconduct. But the question was whether the servant was entitled to take a holiday. There were several questions about the validity of that servant as an employee of the company. It was highlighted in the later part that he was not considered an employee under Section 9, under which the employer allows the employee to take one whole day as a holiday in a week, and the absence of a servant on Sundays amounted to misconduct.

Issues

The question was whether the termination of the services of a servant is valid and whether the servant is entitled to leave upon one’s decision.

Judgement

It was held in this case that this Act does not give an absolute right to the workmen to select the day for a holiday, as the employer has the sole right and has the choice to declare a holiday under Section 9 of this Act. The servant was entitled to take a holiday on Sundays and if the employer did not allow it, then he/she would be violating the provisions of Section 9 of this Act, and the workman would be further entitled to the remedy. But it was on the part of the employer to give a holiday, and the servant took leave without the authorisation of the employer. It was held that the misconduct was made on three charges, of which one was upheld and the other had again gone back to labour court.

Recent developments

Anyone who lives in Uttar Pradesh and wants to set up a business shall require a licence. The setting up of a shop or establishment should be done within compliance with this Act and now it has become easier than before as the registration of any shop and commercial establishment can be done online by simply following the methods at the available portal for online registration and getting a license:

As entering the site of the labour department of Uttar Pradesh government. A profile is needed to be created by the owner of the business and fill all the necessary details that are required.
Certain documents are required to be uploaded for the completion of the registration process.
A further step would demand a prescribed amount of fee to complete the process.
After the payment of the registration fees, the owner needs to provide the details of the challan, the date of the payment for the application form and the name of the bank.
After the successful filing of the form for registration, it undergoes a review process by the labour enforcement officer for verification and giving validity to these details and then issues a licence for shops and establishments.

The table below will give you an idea of the required fee structure for the no of employees for the process of registration:

No. of Employees	Price
01-55-1011-2525+	Rs 40Rs 200Rs 300Rs 500Rs 1000

Conclusion

The U.P Dookan Aur Vanijya Adhishthan Adhiniyam, or Uttar Pradesh Shops and Establishments Act, is the primary legislation that provides a safeguard for all the shops and establishments in the State of Uttar Pradesh. The Act plays a very vital role in giving a valid registration and the benefits, including legal safeguards to both the employer and the employee, that can be availed of if the shop or the commercial establishment is registered under this Act.

Frequently Asked Questions (FAQs)

Is shop and establishment licence compulsory for less than 10 employees in Uttar Pradesh?

The establishment which consists of less than 10 workers must mandatorily submit an online intimation of commencement of the business and attach all required documents. Only after receiving this information along with all the required shall a receipt of Form ‘G’ be issued to the applicant online.

What are the provisions of the UP Shops and Commercial Establishments Act?

The Act consists of provisions in relation to “the payment of wages, terms of services, work hours, rest intervals, overtime work, opening and closing hours, closed days, holidays, leaves, maternity leave and benefits, work conditions, rules for employment of children, records maintenance, etc”.

How do I register under the Shop and Establishment Act in UP?

To get a shop registered under the UP Shops and Establishment Act,1962 the following procedure needs to be followed by an applicant: First of all, open the given web address (www.uplabour.gov.in). The website of the Uttar Pradesh Labor Department will open. Now click on the “Online Registration and Renewal” link.

References

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:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

Doctrine of relation back

By

Vanshika Kapoor

-

November 29, 2023

0

This article is written by Monesh Mehndiratta. The article explains the meaning of the doctrine of relation back. It further explains its applicability and use in different areas of law along with relevant case laws.

It has been published by Rachit Garg.

Introduction

Did you know that if you do something today, it might be presumed under the law that you did it some years ago? Surprising, right?

Well, it is true. Law is not just the legislations or statutes enacted by the legislators or the precedents and guidelines set by the judiciary; it also consists of doctrines and rules that may not be expressly mentioned anywhere but applied and mentioned impliedly in the provisions. However, when such doctrines are applied, they have their own impact. Thus, it is necessary to understand such doctrines and theories. One such doctrine is the doctrine of relation back. This doctrine is frequently applied by the courts in different cases depending upon the nature and circumstances of the case. This doctrine has its own use under different areas of law and is not limited to just one particular area. In the present article, we will understand the meaning and objective of this doctrine and its applicability under different areas of law like concept of adoption under hindu law i.e the Hindu Adoption and Maintenance Act, 1956 , Civil Procedure Code, 1908, Indian Contract Act, 1872 along with relevant case laws.

What is the doctrine of relation back

The term relation back has been defined by the Black’s law dictionary as ‘a principle that an act done today is considered to have been done at an earlier time.’ Thus, the doctrine implies that under certain circumstances, an act done at a later stage is considered as if it was done earlier. It can also be said that according to the doctrine an act done by a person in the present situation is linked with an act done by him previously to determine the issue or cause of action. It must be noted that it is not universally applicable and is applied depending upon the nature and circumstances of the case. However, application of this doctrine can never be used to overturn or change the provisions of a statute.

The doctrine is used differently in different areas of law. For example, Order VI Rule 17 of the Code of Civil Procedure, 1908 provides an opportunity for pleading amendments at any stage of pleadings before a trial has begun in order to determine the dispute between the parties. In the case of Sampath Kumar v. Ayyakannu (2002), the Supreme Court held that once an amendment is incorporated it is referred back to the date of the suit. The doctrine is also applicable to the Registration Act, 1908. Section 47 of the Act provides that a registered document becomes operative from the date it was made and not when it was registered.

Objective of the doctrine of relation back

The doctrine aims to fulfil the following objectives:

The doctrine is applied to avoid confusion in the justice delivery system
It helps to avoid limitations and restrictions in a case
It further reduces chances of mistakes
The doctrine is used as a tool by the judges while deciding a case with fairness

Doctrine of relation back under Hindu Law

Application of the doctrine of relation back in old Hindu Law

As said earlier, the doctrine is used differently in different areas of law. In Hindu law, it is mostly used in the concept of adoption and inheritance law. In the ancient times, families with no children, especially sons, used to adopt a son in order to protect their ancestral property so that it could vest with the adopted son. If a widow adopted a son after the death of her husband, it was believed that she adopted the child before her husband’s death. In simple words, the doctrine provided that if a son is adopted by a widow after her husband’s death, it would be deemed as if she adopted him during the time her husband was alive. After the adoption, the adopted son is under an obligation to perform all the duties of a son and even inherit the property owned by the father before his death. To better understand the doctrine, let’s take an example:

Illustration: A woman ‘Q’, married ‘B’ who died in 1940. Q had limited interest but no right to inherit B’s property and so the property was equally distributed among his two brothers. However, in 1949, Q adopted Y. Applying the doctrine of relation back, it will be presumed that Y was adopted in 1940 and so he will be allowed to divest B’s property.

However, the doctrine has two exceptions:

If any lawful alienation is done by a female heir after the death of the father and before the son is adopted, it would be binding on him as well. The same was also reiterated in the case of Anant Bhikappa Patil v. Shankar Ramchandra Patil (1943).
If the property is already inherited to any relative descending from a common ancestor, the adoption would not divest such property vested in the heir of collateral. He is entitled to inherit only that property which was owned by the father before his death.

In the case of Shripad Gajanan Suthankar v. Dattaram Kashinath Suthankar (1974), the Supreme Court held that according to the doctrine of relation back, if a widow adopts a son, the adoption would be considered retrospective in nature as if the child was adopted before the father’s death.

The doctrine of relation back was also explained in the case of K.R. Sankaralingam Pillai v. Veluchami Pillai (1942) as:

The doctrine was accepted as a rule of Hindu law wherein the adoption is considered retrospective to the date of father’s death.
The court also recognised the right of the adopted son to demand partition.

In the case of Venkalakshmi Ammal v. Jagannathan (1963), the Madras High Court held that the above principle could only apply to the father’s estate and not to that of collateral heirs. Thus, it must also be noted that the rule or the doctrine can be applied only when an adopted son claims his father’s estate after his death. This was based on the principle which provided that the creation of filial relations was based on the rule of continuity of life.

Application of the doctrine of relation back under modern Hindu Law

The doctrine was applicable only till the time adopted laws were not codified. After the enactment of Hindu Adoption and Maintenance Act, 1956, the doctrine has neither been recognised nor applied unlike before. Section 12 of the Act clearly provides that an adopted child would be considered as the child of the adoptive parents from the date of his or her adoption which means that unlike before the enactment of the Act, the adoption of a child is not retrospective in nature. The section also provides that the child so adopted will not divest or deprive any person of any estate which is vested in him before the adoption. Thus, adoption would have no effect on the estate which is already vested in a person.

The primary aim of the Section is to codify the law of adoption and maintenance. It does not recognise the doctrine and rather confers equal status of a natural child with the adopted child in the family, in which he or she is adopted, but only from the date of adoption and not retrospectively. Section 12(c) further denies the theory of relation back which was applied and used in the case of vesting and divesting of property. It also helped reduce multiple litigation in this regard. Moreover, the date of adoption is considered necessary to determine filial relations in the adoptive family.

In the case of Sitabai & Anr. v. Ramachandra (1970), the Supreme Court observed that the aim of the Hindu Adoption and Maintenance Act, 1956 and the provisions for adoption given therein is to sever all ties of birth family of the adopted child after he or she is given in adoption to the adoptive family. The legal effect is to transfer the child from his or her birth family to adoptive family. Thus, the Act abrogates the doctrine of relation back by providing the adopted child with the same status as that of a natural born child in the adoptive family from the date of adoption. From the date of adoption, all the ties of a child with his or her birth family would be replaced by that of the adoptive family.

In the case of K. Venkata Somaiah v. K. Ramasubbamma (1984), the Andhra Pradesh High Court held that the doctrine of relation back can no longer be applied to the issue of divesting of property and adoption. The 1956 Act clearly provides express provision which states that the adopted child would not take away any estate already vested in a person before the adoption. In this case, a sole surviving coparcener gave all his properties to his wife. After his death, the widow adopted a son and gave him certain properties and retained the others. The adopted son tried to divest all the properties of his adoptive mother but the same was denied by the court.

In the case of Ratan Singh v. Rajaram (2020), the Madras High Court observed that the person who claims title of the property on the basis of adoption must prove the adoption was valid by giving relevant evidence. The burden to disprove the same then shifts to the one who challenges it. In the present case, the adoption deed was not signed by any person giving the child in adoption. In the absence of any evidence, the court held that the adoption cannot be said to be a valid adoption and hence, the decree passed by lower court was set aside.

Doctrine of relation back under CPC, 1908

Order VI Rule 17 CPC, 1908

Under the Code of Civil Procedure, 1908, the doctrine of relation back is applicable to the amendment of pleadings. Pleadings are the statements made in writing by each party to the suit, delivered to the other wherein their contentions are stated. One of the essentials of pleadings is that all the material facts and other necessary particulars like interrogatories, essential documents, etc must be disclosed. The doctrine of relation back is impliedly given under Order VI Rule 17 of the Code. It provides that a court can allow a party to a suit to amend the pleadings at any time before the trial, if it is necessary to determine the issues between the parties. It further provides that no amendment can be allowed once the trial has commenced unless the court is satisfied that the party could not have amended it before the trial in spite of due diligence.

The objective of such a rule is:

To reduce multiplicity of suits.
Avoid unnecessary delay in trial.
Minimise litigation.

The Supreme Court, in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India (2005), held that the objective of inserting a proviso in Rule 17 is to prevent false and frivolous applications intended to delay the trial.

Applicability of the doctrine of relation back

According to the doctrine of relation back, an amendment usually relates back to the date of pleadings when it was filed. However, the doctrine is not absolute and cannot be applied universally. The court can order that a particular amendment would be effective from the date it was allowed rather than the date when the plaint or written statement was made. The application of the doctrine in this regard is closely linked with the limitation of the suit. Section 21 of the Limitation Act, 1963 clearly provides that the substitution or addition of parties will be governed by the doctrine of relation back.

Another thing to be noted is that, if any amendment is done pertaining to any defect or error according to Section 153 of the Code of Civil Procedure, 1908, the doctrine of relation back will be applicable. For example, If there is a misdescription of a party and the same is corrected by amendment, it will relate back to the date when the suit was instituted. The same was observed in the case of Purushottam Umedbhai and Co. v. M/S Manilal and Sons (1960).

Relevant cases explaining the doctrine

The court in the case of Purushottam Umedbhai and Co. v. M/S Manilal and Sons (1961) provided a distinction between Order VI Rule 17 and Section 153 of the Code. It was observed that there may be grammatical errors in pleadings, these are not covered under Order VI Rule 17 but under Section 153. Thus, where such defects or errors are corrected, the doctrine will be applicable irrespective of the fact that the correction is done within or without limitation.

In the case of Maguluri Venkata Subba Rao v. Syed Khasim Saheb (2003), the Court held that the aim of the rule is to reduce multiplicity of suits by enabling the court to decide all the issues in a single suit. Further, in the case of Rajkumar Gurawara v. M/S S.K. Sarwagi & Co. Pvt. Ltd. (2008), it was held that the pre-trial amendments must be allowed liberally. In the case of Boya Pikkili Pedda Venkataswamy v. Boya Ramakrishnudu (2013), the court held that the amendment can also be allowed to be made during the appellate stage if no injustice will be caused to the other party to the suit. Further, in the case of Pandit Malhari Mahale v. Monika Pandit Mahale (2020), the Court observed that whenever an application for amendment is allowed by a court, it must be done after the court is satisfied that the party could not make amendments before the trial despite due diligence.

Doctrine of relation back under Indian Contract Act, 1872

The application of the doctrine of relation back under the Indian Contract, 1872 can be found in the concept of ratification given under Section 196 of the Act. The doctrine is closely linked with the principal-agent relationship and the concept of agency. Before understanding the applicability of the doctrine, it is important to understand the concept of agency. Section 182 of the Act gives the definition of an agent and a principal. An agent is a person who is engaged or employed by a person to act on his or her behalf and the person who employs him or who is being represented by him is known as the principal. Thus, agency is a contractual relationship that exists between an agent and a principal. Usually, a principal is liable for the acts done by an agent under the contract of agency.

The doctrine of relation back is applied in cases of ratification. Ratification is done by a person who employs or engages another person to act on his behalf but the person so employed does an act without his knowledge or consent. In this situation, the person who employed the other person i.e. a principal has a right to choose or elect to either ratify or disown the acts done by the agent. If the principal decides to ratify such acts, it will be presumed that the acts were done with his consent and under his authority. Section 196 of the Act provides this right. The doctrine states that once a principal decides to ratify the acts of the agent, it cannot be revoked and the principal will be liable as if he had authorised the act from the very beginning. Thus, ratification will have a retrospective effect on the subject and will bind the principal from the date when such an act was performed initially and not from the date when it was ratified.

Illustration: X (agent), buys goods for Y (principal) without his consent and knowledge. Y further sells those goods to Z. This is implied ratification by Y of the act done by X. Now, if there will be any default, Y will be liable and bound from the date X bought the goods.

Section 197 of the Act further states that ratification may be expressed or implied. In the case of Bolton Partners v. Lambert (1889), the court applied the doctrine of relation back and stated that the contract was binding on all the parties and was enforceable from the date on which it was made.

Important case laws

Sampath Kumar v. Ayyakannu (2002)

Facts of the case

The plaintiff in this case filed a suit seeking permanent injunction alleging that he is entitled to possession over the property in dispute. The defendant on the other hand denied the allegations and pleaded that he was in possession of the property when the suit was instituted. Before the trial, the plaintiff filed an application under Order VI Rule 17 of the Code for making amendments in the plaint wherein he wanted to seek relief for declaration of title. However, the defendant opposed the application stating that the plaintiff is trying to change the cause of action as a result of which the application was rejected by the trial court and the plaintiff was asked to institute a fresh suit. This order was further maintained by the High Court. Aggrieved by the order, the present appeal was filed before the Supreme Court

Issues involved in the case

Whether a suit filed for seeking injunction can be converted into a suit for declaration of title through amendment?

Judgement of the court

The Hon’ble Supreme Court observed that the amendment proposed by the plaintiff in the application did not alter the basic structure of the suit, rather it only sought to change the nature of relief. It was further observed that the delay in making amendments must be decided not by calculating the period of delay but by the stage at which the suit has proceeded. Thus, pre-trial amendments must be allowed and courts must take a liberal approach in this regard. It was also observed that once an amendment is incorporated it relates back to the date when the suit was instituted.

Doctrine of relation back, however, cannot be applied universally in every case. In certain cases the court can declare that a particular amendment would not relate back to the date of suit. In the present case, the court allowed the appeal and held that the amendment will be allowed and it will be considered that the prayer for declaration of title and recovery of possession has been made on the date on which amendment was filed. Thus, it will not relate back to the date when the suit was instituted.

M/s South Konkan Distilleries v. Prabhakar Gajanan Naik (2008)

Facts of the case

In this case, a suit was filed by the respondent for the dissolution of partnership. The appellants or the defendants questioned the other existence of the partnership in their written statement. After thirteen and a half years, the appellant filed an application for amendment in the written statement in order to enhance the amount. This was challenged by the respondent saying that the application was barred by limitation. For the same reason, the trial court rejected the application. Aggrieved by the order, the appellant filed a writ petition in the Bombay High Court which was also rejected and finally a special leave petition was filed in the Supreme Court.

Issues involved in the case

Whether the application for amendment be allowed.

Judgement of the court

The court observed that it is a well settled principle that the application for amendment must be allowed when the court is satisfied that if it is not allowed, the applicant would suffer irreparable loss or injury. Another cardinal principle in this regard is that the courts generally decline the amendments if the fresh suit on that matter is barred by limitation on the date when the application is made. The court also relied on the doctrine of relation back and that it is not applicable to every case. In certain cases, the amendment cannot relate back to the date of institution of suit but to date when the application was made. The court held that the trial court and High Court acted in a proper manner while rejecting the application for amendment.

Kasabai Tukaram Karvar v. Nivruti (dead) through legal heirs (2022)

Facts of the case

This case is related to the partition of property of a deceased father among the step- sisters and the adopted son. The daughters of the deceased claimed that they are entitled to a share in the property along with the adopted son. The High Court in this regard held that according to doctrine of relation back, the adopted son would be the sole and exclusive heir of the property and would also divest the plaintiff’s right (daughters). The plaintiff further challenged the applicability of the doctrine of relation back.

Issues involved in the case

Whether the doctrine of relation back was applied correctly in this case.
Whether the partition be invalidated retrospectively.

Judgement of the court

The Supreme Court observed that the doctrine of relation back makes sonship retrospective in nature from the date when the father died. In the present case, there is no question on the validity of the adoption. Applying the doctrine, it will be deemed that the adopted son was notionally alive on the death of the father and he would become the sole coparcener. The court held that in the present case, the daughter would not be considered an heir because of the existence of an adopted son and the doctrine of relation back.

Conclusion

Law is never static but dynamic in nature and is subject to wide interpretation and understanding. Doctrines and principles of interpretation play an important role in understanding the intricacies while applying any provision of law. The doctrine of relation back has its own importance and impact when applied to a particular case. It is used differently in different areas of law but the basic understanding remains the same. The doctrine implies that in certain situations, the act done at a later stage is considered as if it was done earlier.

The application of the doctrine can be seen in the adoption governed by Hindu law, Order VI Rule 17 of the Code of Civil Procedure, 1908, ratification under Indian Contract Act, 1872. Another application of the doctrine can be found in the execution of sale deeds. When the parties enter into a sale agreement and later the sale deed is executed, it is considered that the deed relates back to the date when sale agreement was made and entered into by the parties. Further, earlier, the Provincial Insolvency Act, 1920 provided that an order of adjudication would relate back and have effect from the date when the petition was presented. However, now the Insolvency and Bankruptcy Code, 2016 is applicable. Thus, it can be said that the doctrine has its own effect when applied to the facts and circumstances of each case depending upon the area of law in which it is applied. However, it must be noted that it cannot have universal application.

Frequently Asked Questions (FAQs)

How is the doctrine of relation back applied to Provincial Insolvency Act, 1920?

Under the Provincial Insolvency Act, 1920 the doctrine provides that an order of adjudication would relate back and have effect from the date when the petition was presented.

Can a widow inherit her deceased husband’s property even if she has adopted a son?

Yes, the widow can inherit such property but if she has adopted a son then according to the doctrine of relation back, he would be the sole coparcener and inherit the property.

What is the difference between the applicability of the doctrine in the old Hindu and modern Hindu law?

In old Hindu law, the doctrine of relation back was applied in cases of adoption and it was deemed as if the son was adopted before the death of the husband. However, in the modern law, the Hindu Adoption and Maintenance Act, 1956 has been enacted which provides that the adopted child would be considered the child of the adoptive parents from the date of his or her adoption. Thus, it will not be applied retrospectively.

References

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Doctrine of reasonable classification

By

Diva Rai

-

November 28, 2023

0

This article has been written by Diva Rai and updated by Upasana Sarkar. This article deals with the doctrine of reasonable classification, which provides a detailed understanding of its concept, scope, and significance in India.

It has been published by Rachit Garg.

Table of Contents

Introduction

Article 14 in India’s Constitution guarantees the right to equality for every citizen of the country. It encompasses the general principles of equality before the law and prohibits unreasonable discrimination between two persons. It incorporates the idea of equality expressed in the preamble.

Article 14 Equality before Law

It is declared in the article that ‘the State shall not deny to any person equality before the law or equal protection of law within the territory of India.’ The expressions of equal protection of law and equality before the law are enshrined in the constitution. They guarantee the fundamental rights and aim to establish equality of status. The two expressions seem identical, but they do not convey similar meanings.

Origin of Equality before Law

The term has its origin from America and is somewhat a negative concept aiming at the implication of an absence of some special privileges. This can be by the reason of birth, religion, sex, caste, etc and by the ordinary law in favor of persons and all the equal subject of classes.

Equal Protection of Law

The term has its origin from Britain and is somewhat a positive concept aiming at equal treatment in identical situations. In other words, the President or the Prime Minister of the country should be dealt in the same manner in law as that of a common citizen.

To know more about reasonable classification and its validity under Article 14 in brief, please refer to the video below:

Rule of Law

The Rule of Law in England called by Dicey is an aspect of the guarantee of equality before the law. This means that irrespective of the rank of a person, his condition would be subject to the jurisdiction of ordinary courts as no man is above law. It is a requirement of the rule of law that no man should be subjected to uncivilized, discriminatory and harsh treatment. This would be applicable even when the objective is to secure a paramount need of law and order.

Meaning of the Rule of Law

The three meanings as given by Professor Dicey of the Rule Of Law are:

(i)- Supremacy of the law or the absence of arbitrary power:

This means that absolute supremacy of law prevails are contrary to the Government’s arbitrary power.
A man can only be punished due to a breach of law and nothing else.

(ii)- Equality before law:

This means that ordinary law courts administer the subjection of all classes to the ordinary law of the land.
In the eyes of law, all are equal and no one is above law.

(iii)- Absence of individual liberty:

A variety of constitution grants individual freedom but does not provide a method.
The source of individuals’ rights in the constitution is neither written nor mentioned.
Provision for individual liberty is not in the U.K.

Rule of Law In India

Supremacy of Law:

The very first meaning is that in goods no person is punishable or can be legally made to suffer. This is except for a distinct infringement of law established in an ordinary legal manner before the land’s ordinary courts. It means a person can be punished for an infringement of the law but can not be held responsible and punished for anything else. Except in the case of a breach of law, a person cannot be punished. In accordance with the ordinary procedure, an alleged offense needs to be proven in front of the court.

Equality before Law:

A person irrespective of his rank or condition would be subject to the realm of the ordinary law. He would be amenable at the jurisdiction of ordinary tribunals. Under Article 14, every person has equal protection and is equal before law.

Individual Liberty:

Article 21 provides protection of life and personal liberty while Article 19 provides right to freedom which mentions individual liberty like a fundamental right. The first and second of the Dicey’s rule apply to the Indian system but not the third aspect of it. This is because the Constitution of India is the source of the right of individuals. Constitution is the supreme law of the land. The laws passed by the legislature must be in consistency to the provisions of the Constitution. A duty is imposed by the rule of law upon the state as a special measure so as to prevent and punish the brutality of the police methodology. A basic feature is the embodiment of the rule of law in Article 14 of the Indian constitution. Under Article 368 also, it cannot be destroyed or amended.

Exception To Rule of Law

The above mentioned rule of equality is not an absolute rule and contains a lot many exceptions to it and they are:

The meaning of equality of law is not that the power lying at the hands of the private citizens is the same as that of the public officials. The rule of law requires that the powers of the public officials must be clearly defined. The abuse of such power or authority by the officials must be punishable in the courts. Example- No private person can arrest another person whereas a police officer has the power to do so. This is not a violation of the rule of law.
A certain class of people being subject to some special rules are not prevented by the rule of law. Example- Armed forces members are controlled by their military rules; the medical council of India controls the medical practitioners.
Special rules in the professions govern those specific members of society. These people are treated differently from other citizens. Example- Doctors, police, lawyers, nurses, members of the armed forces, etc.

Reasonable Classification

If the classification is made on a reasonable basis, the legislature can deal with two sets of individuals. A reasonable classification must be based on smart differences. This means that collectively grouped persons or things make a properly defined, distinct class and may be exceptional from those left out of the group. Furthermore, this classification basis must have a rational nexus to the object that the legislation in question seeks to achieve.

Illustration- The law on maternity benefits applies to women working on the way to maternity, not to others. Because the purpose of the law on maternity benefits is to grant privileges only to women who turn out to be mothers when they need them. Hence, the category of men and women is based totally on an intelligible differentia.

Another illustration is of tax laws. Charities, libraries are exempted from sure tax whereas other residences are not.

Scope of doctrine of reasonable classification

The ambit of the doctrine of reasonable classification is derived from the Constitution of India. The discrimination must be made on the basis of valid reasons. A framework for establishing reasonable classification among different individuals or groups of society is provided under Article 14 of the Constitution. The scope of a reasonable classification is usually determined by its capacity in supporting some specific regulations or legislation that are particularly addressed to certain situations or conditions. This provides the concept that all individuals are different from one another. So if the treatments provided to them are equal or similar, it would lead to unfairness and injustice. Therefore, when the State gives special treatment to a particular section of people, it is done to promote social welfare and justice. Hence, this doctrine of classification offers the legislature an opportunity to enact laws on the basis of intelligible differentia. It helps the State make laws for the welfare of different sections of society and provide equitable treatment to everyone.

Intelligible Differentia

The intelligible differentia is an important factor in reasonable classification. It means forming a particular group of individuals with common characteristics. In other words, the members of that group should be unique from the members of other groups. In addition to it, this classification ought to have a reasonable connection that would explain the basis for its enactment, which the country wants to find. For instance, the Child Labour (Prohibition and Regulation) Act, 1986, is applicable to children who are below the age of 14 years to protect them from being employed in hazardous industries. It cannot be used for any children who have completed the age of 14 years. Similarly, the Maternity Benefit Act, 1961, is available only to the working women who are pregnant. It will not be applicable to any other women except those who are expecting a child. Maternity leave is important for those women who are about to become mothers for their and their babies good health. Women who carry a baby need special care and rest. For this reason, Article 14 grants a reasonable classification between men and women.

Importance of doctrine of reasonable classification

As mentioned earlier, Article 14 guarantees everyone equality before the law without any kind of unreasonable discrimination. This means that necessary discrimination is allowed by law. Since the situations and conditions of all individuals are different, the way of treating them must also be different. Therefore, reasonable discrimination is permitted. If the ground of discrimination is fair, logical, and reasonable, then such discrimination is considered necessary for the welfare of the people of society. The doctrine of classification allows the legislature to make laws accordingly. The legislature makes laws keeping in mind the social inequalities and various other challenges that people of different communities face. The laws are made in such a way that no group or community feels discriminated. It tries to provide equal opportunities to all members of society. The Judiciary also plays an important role in ensuring that the laws made by the legislature for the benefit of any particular group or community are reasonable and not arbitrary in nature.

Test of Reasonable Classification

Article 13 of the Indian constitution forbids class legislation but it does not prohibit the reasonable classification of objects, persons, and transactions for the purpose so as to achieve specific ends by the parliament. Such classification should not be artificial, arbitrary or evasive and it must rest on substantial distinction which is real. It must bear a reasonable and just relation to the sought object which is to be achieved by the legislation. Classification of reasonable as laid by the Indian Supreme Court has two conditions as in the case of Saurabh Chaudhari v Union Of India [1], are-

(i)- The classification must be founded on intelligible differentia, distinguishing grouped together persons or goods from the left out ones of the group.

(ii)- The differential must be in a rational relation with the sought object that is to be achieved by the act. The object of the act and differential on the basis of classification are two separate things. It is essential that there must be the presence of nexus between the object of the act and the basis of classification. When a reasonable basis is not present for classification then such classification made by the legislature must be declared discriminatory.

The age at which a person would be deemed competent between themselves can be fixed by the legislature but competency cannot be claimed. A contract made dependent on the color of hair cannot be made, and such a classification would be arbitrary.

Role played by the doctrine of reasonable classification in Administrative Law

This doctrine of reasonable classification also plays an important role in the administrative laws in the following ways:

Provide guidance for the interpretation of statutes: It also plays an important role by guiding the formation statutes so that its interpretation does not give rise to any irrational or ludicrous conclusion. So the legislators and the judges use this doctrine as their guiding principle for enacting or interpreting laws. It helps them deliver fair justice to the people without any arbitrariness.
Testing the legitimacy of the law: One of the significant roles played by the doctrine of reasonable classification is determining the legitimacy of any bill of law that is introduced or enacted by the Government of the State. The rationality of that bill or law is determined by this doctrine. It clarifies whether the law is justifiable or not, which in turn reduces problems and increases acceptability.
Provide a standard for judicial review: This doctrine is also useful in providing a standard for judicial review. The judicial review nullifies any administrative action that seems irrational or arbitrary. Some discretionary powers have been granted to the administration, but those are also subjected to judicial review.

Article 14 Permits Classification But Prohibits Class Legislation

Article 14 guarantee equal protection of laws and they are:

Neither means that the laws need to be general in character nor that it should be applicable to everyone, which means, the same law applies to every person.
It does not assess attainment or situations in the same position. Different classes have various needs that require separate treatment.
For safety and security different laws for varying places and legitimate control policies enacting laws lie at the best interest of the state.
Identical treatment in unequal situations, in fact, would amount as inequality.

Therefore for the society to progress a reasonable classification is not only permitted but also necessary. Article 14 forbids class legislation but not reasonable classification. The article applies on the reasonable basis, equals are treated differently. The article does not apply where unequals and equals are given different treatments.

Conferring particular privileges upon a class of persons, class legislation makes improper discrimination by selecting a large number of persons arbitrarily. No reasonable or substantial difference can be found in justifying the exclusion of the one and the inclusion of the other from such privilege.

Meaning and Scope of the Right to Equality

The propositions laid in Ram Krishna Dalmia v. Tendolkar [2], explains the true scope and meaning to the right to equality and holds a valid classification. It is as follows:

1- Even though relating to an individual person, a law would be constitutional if on account of some reasons or special circumstances is applicable to him and not applicable to others. The individual person can be treated as a class.

2- There is a dependable assumption in favor of the constitutionality of a rule and the burden is upon him who attacks it to demonstrate that there has been a reasonable transgression of established constitutional standards.

3- The assumption might be disproved in specific cases by showing that on the fact of the statue, there is no order and no distinction peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits a specific individual or class.

4- It must be assumed that the legislature accurately acknowledges and comprehends the need of its own people that its law is directed to the problem made manifest by involvement and that its discrimination is based on satisfactory grounds.

5- So as to continue the assumption of constitutionality the court may take into consideration matters of basic knowledge, matters of report, the historical backdrop of the times and may expect each condition of facts which can be conceived existing at the time of the enactment.

6- Thus the legislation is allowed to perceive degrees of harm and may confine its limitation to those situations where the need is considered to be the clearest.

7- While good faith and knowledge of the current conditions with respect to a legislature are to be assumed, if there is nothing on the substance of the law or the surrounding conditions brought to the notice of the court on which the classification may reasonably be viewed as based, the assumption of constitutionality can’t be conveyed to the degree dependably that there must be some undisclosed and obscure explanation behind exposing certain people or organization to be unfriendly or discriminating legislation.

8- The classification can be made on various bases like geographical or according to object or occupation.

9- The legislative classification no longer needs to be scientifically perfect or logically complete. There is no need for mathematical nicety and perfect equality. Equal treatment no longer involves the same treatment. Similarly, remedy identity is no longer enough.

10- There may be discrimination each inside the substantive as well as the procedural law. Article 14 applies to both. If the class satisfies the test laid down inside the above propositions, the regulation could be declared constitutional. The query whether or not a classification is reasonable and proper and no longer need to but, be judged more on common sense than on legal subtitles.

Limitations of the doctrine of reasonable classification

The doctrine of reasonable classification has some limitations as well. The critics pointed out the few situations where this doctrine can be misused by the people. This reasonable discrimination can lead to unjustified differentiation at times. So it is required to ensure that while making a reasonable classification, it should not be done in any arbitrary way. It is necessary to make sure that the law is fair and reasonable. It should be made in such a way that no fundamental rights of any person are infringed. The classification must be made in such a way that it removes inequality among various sections of society. This reasonableness of classification is scrutinized by the Judiciary. The judicial review examines whether the classification made in a particular case is reasonable or not. This would help safeguard the principles of the Indian Constitution.

Another important limitation is that it may be subjective to determine the factors that would constitute a reasonable classification. Providing equal or the same treatment to everyone might not always be right due to factors like age, gender, physical strength, and many more. If everyone had been treated equally without providing reasonable discrimination, then it may not always result in fairness and justice. To provide fair justice to everyone, it is very important to take into consideration the needs and conditions of different individuals or groups. The critics stated that for a particular reasonable classification, different judgements or interpretations may arise from various perspectives. So it is important for the Judiciary to provide clear and specific principles and guidelines for determining the requirements of classification.

Therefore, it is very much necessary to ensure that while using this reasonable discrimination, the doctrine of reasonable classification should be able to create a balance by recognising different realities while upholding the principles of equality as mentioned in Article 14 of the Constitution of India.

Judicial pronouncements

In the case of State of West Bengal v. Anwar Ali Sarkar (1952), the Supreme Court of India upheld the distinction between the object of the Act and the basis of classification, which should be examined carefully before passing any order. Before passing any decree regarding the classification, it must be examined carefully. The following two conditions must be fulfilled-
- It should be based on an intelligible differentia that makes a distinction between one group of people and another.
- The differentia must have a reasonable connection with the purpose sought by the law.

It is the responsibility of the courts to make sure that there exists a relationship between the differentia and the objectives of the legislators. The classification can be declared discriminatory in nature if the basis for it is unreasonable. It is the duty of the courts to prevent any unfairness or arbitrariness in treatment.

In the case of Madhu Limaye v. the Superintendent, Tihar Jail (1975), the case was filed against the discriminatory treatment of prisoners at Tihar Jail. The European prisoners were treated differently from the Indian prisoners. They were given nutritious food and treated in a better way than the Indian prisoners. So the Indian prisoners challenged this kind of discrimination before the Supreme Court. The Apex Court observed that this kind of behaviour violates Article 14 of the Indian Constitution. As right to equality is considered fundamental in the Constitution, the Court ordered the officials to treat every prisoner equally without any kind of discrimination. The Court stated that the doctrine of reasonable classification shall not be applicable in this case.
In the case of D.S. Nakara & Others v. Union of India (1983), there was an issuance of a memorandum by the Government where it was notified that persons who have retired after 31st March, 1979, will be eligible to get the benefits of liberalized pension. The Supreme Court was against this scheme because it was arbitrary in nature. There exist no rational grounds that would clarify that the fixing of cut off date is non-discriminatory. This distinction of pensioners into two categories based on retirement date is considered irrational and unprincipled. So the Court held it to be violative of Section 14. Therefore, the doctrine of reasonable classification cannot be applied under any circumstances in this case.

Conclusion

The doctrine of reasonable classification plays a significant role in supporting the less privileged section of society. It helps in distinguishing people from one another on the basis of their characteristics. This doctrine provides benefits to a certain group or section. Though Article 14 lays down the provisions of the Right to Equality, discrimination by way of reasonable classification is permitted by law. As the conditions and circumstances of different people vary from one another, their treatment must also differ. There shall be an equitable distribution of rights and responsibilities so that no section of society alone feels that burden. Therefore, if identical treatment is provided to everyone, then it will amount to inequality. So the doctrine of reasonable classification is introduced under Article 14 as an exception to the rule. Though sometimes, it is misused by certain authorities. When they are awarded some discretionary power, they try to use this doctrine in an arbitrary manner. To prevent such arbitrary use, judicial review plays an important role by striking off those arbitrary actions taken by an authority. In short, the doctrine of reasonable classification can be used for discrimination when rational and logical grounds are present.

Frequently asked questions (FAQs)

Which amendment introduced an exception to Article 14?

The 42nd Amendment Act of 1976 introduced an exception to the equality principle. It made reasonable classification legal. It helped in categorising different sections of people on the basis of caste, sex, creed, race, gender, religion, place of birth, and many more. Therefore, the doctrine of reasonable classification allows only reasonable discrimination among the members of society, as laid down in the provisions of Article 14 of the Indian Constitution.

What is the difference between class legislation and reasonable classification?

The reasonable classification is permitted by law on valid grounds as it discriminates one group from another on the basis of circumstances or characteristics. Class legislation, on the other hand, means discriminating one group from another by giving them certain privileges arbitrarily without any valid and rational basis. So it is not permissible by law. Therefore, distinction on the basis of reasonable classification is rational and logical, whereas distinction on the basis of class legislation is improper and violates Article 14 of the Constitution.

Which States inspired India to introduce this doctrine of reasonable classification?

Article 14 of the Constitution states that everyone should be given equal and fair treatment without any kind of discrimination, as everybody is equal in the eyes of the law. But the doctrine of reasonable classification states that only those people with similar characteristics or conditions should be treated similarly, not everyone. The phrases ‘equality before law’ and ‘equal protection of laws’ were derived from the UK Constitution and the American Constitution.

References

AIR 2004 SC 2212
1958 AIR 538, 1959 SCR 279

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All about an indemnity period

By

Vanshika Kapoor

-

November 28, 2023

0

This article has been written by Mudit Gupta. This article discusses all the necessary details about the indemnity period and its implications for various types of agreements.

It has been published by Rachit Garg.

Table of Contents

Introduction

In a world that is constantly evolving and full of uncertainties, risks, and unexpected events, it becomes crucial to prioritise safeguarding our interests. Whether we are starting a business venture, pursuing our dream job, or simply going about our activities, we as humans face numerous risks that can result in unforeseen consequences. It is during these times that the importance of indemnity contracts becomes paramount. One crucial aspect considered during the negotiation of these contracts is the duration for which indemnity is provided to the party being protected.

An indemnity contract is an agreement where one party assures the other party that they will cover any losses that may occur on an asset or any other matter for which indemnification is provided. This arrangement is commonly known as indemnification. Indemnification is granted for a period of time, and any losses occurring after that period are not covered. A familiar example where many of us have encountered agreements is through our insurance policies. Insurance involves one party, typically referred to as the insurer, promising to compensate another party, known as the insured, for any losses, damages, or liabilities covered by the policy. Thus, insurance can be seen as a form of indemnity. In this setup, the insurance company receives a payment, known as a premium, from the policyholder. Takes on the responsibility of covering any losses that may occur due to specific events mentioned in the policy.

In this article, we will be looking at all the important aspects of the indemnity period, including what an indemnity period is, how it works, its role in the insurance industry, business interruptions, and tax indemnity in cross-border transactions.

What is indemnity

The case of Adamson v. Jarvis (1827) introduced the contract of indemnity for the first time. In this case, the defendant gave the plaintiff, who was an auctioneer, instructions to sell livestock, which were later discovered to be belonging to someone else. The owner died. After that, the plaintiff sued the defendant, who gave him the order to sell the livestock. The decision in this instance was given in favour of the plaintiff. According to the Court, the individual who gave the auctioneer instructions effectively indemnified the auctioneer, and hence, he was held accountable for the same under his indemnity liability.

As per Section 124 of the Indian Contract Act, 1872:

A contract of indemnity is a contract whereby one party, i.e., the indemnifier, promises to save the other party, i.e., the indemnified, from the loss caused to him by the conduct of the promisor or any other person.

A contract of indemnity is a contingent contract because it is the happening of a certain event by the indemnifier or a third party that triggers the contract. The occurring event triggers the contract and leads to the maturity of liability.

For a valid contract of indemnity, there are certain conditions-

The consideration for the contract must be lawful.
The object of the contract must be lawful.
Loss to the indemnity holder is an essential requirement.
It is dependent on a particular event.
The indemnity may be expressed or implied, as per the situation.
All the other essentials of a valid contract.

These conditions need to be fulfilled for a valid contract of indemnity to take place.

What is an indemnity period

The indemnity period is the duration of time agreed is agreed-upon by the parties during which one party agrees to assume the risk and provide the other with indemnification. Most of the time, it is specified as a clause in the agreements and acts as a deadline for identifying and disclosing losses or damages. Once this time period gets over, the party seeking indemnity can experience difficulties as they might have to resort to dispute resolution mechanisms to recover for losses that were previously unknown to them while making the agreement.

How does the indemnity period work

Commencement

The commencement of the indemnity process is initiated by the agreement itself. The exact point at which the indemnification starts is typically specified in the indemnity agreement. This could be triggered by an occurrence, such as an accident or a natural calamity, or in accordance with agreed upon terms between both parties.

Duration

The duration of the indemnity period may differ based on the agreement or policy and the level of coverage offered. It can be restricted to a timeframe, like a year, or it could extend until certain requirements are fulfilled, such as the completion of a particular project. In a few exceptional cases, insurance is obtained to protect against incidents that happened prior to obtaining the policy; in fact, some policies might even have a start date that precedes their date.

Claim submission

If the indemnified party suffers a loss or damage covered by the agreement or policy during the indemnity term, they can file a claim with the party providing indemnification. The claim should follow the guidelines outlined in the agreement or policy. Include supporting documents and evidence.

Recompense

As per the terms and conditions outlined in the policy or agreement, the party responsible for indemnification will be required to provide compensation to the party being indemnified if their claim is approved. Typically, the agreed upon indemnity amount or the coverage limit specified in the policy is used to determine the loss incurred during the indemnity period and calculate the compensation.

Termination

The period of indemnification ends either after a specified duration or when certain predetermined conditions are met. For example, in a construction project the indemnification period concludes at the project’s completion and final approval. After the indemnity terminates, the party who has been protected may no longer be eligible to make claims, for losses that occurred thereafter.

Extension or renewal

The party being indemnified may choose to extend the indemnity agreement for an additional time or renew the agreement. But this scenario is completely dependent on the specific circumstances of the case. Both parties have to agree in order to extend the agreement.

Indemnity periods in insurance claims

In coverage claims, the period of indemnity plays a crucial role in establishing the time frame within which the insured party can obtain compensation for the covered loss. The most important factor that is taken into consideration when evaluating the financial effects of a loss and ensuring that the insured party receives sufficient reimbursement is the indemnity period.

In order to make sure that the insured parties are reimbursed fairly for the financial impact of the covered losses, the indemnity period plays an essential role. The insured stakeholders can continue regular activities and recover financially from the losses experienced during this time because the indemnifier pays for ongoing expenses and loss of income. If the insured party’s recovery period is longer than the insurance term, they may also experience financial difficulties if the indemnity duration is not appropriate.

Also, security is provided during the indemnification period against unforeseen setbacks or difficulties in the healing process. It provides an affordable timeframe for assessing and reconstructing the business, providing the insured party with a sense of security during a challenging period.

Indemnity period in fire insurance claims

The period during which the policyholder can request compensation for damages caused by a fire incident on their property or goods covered by the insurance policy is known as the indemnity period in fire insurance claims. This period typically begins from the day of the loss. Continues until the insured property is fully restored or repaired or until the maximum compensation limit is reached, whichever happens first. The purpose of this timeframe is to ensure that the insurance coverage remains valid and that policyholders receive proper compensation for their losses.

Indemnity period in life insurance claims

The time period following the insured person’s demise during which the policyholder’s beneficiaries may submit a claim is known as the indemnity period in life insurance. This time frame varies according to the provisions of the policy but normally lasts between one and two years. The insurer may reject a claim if it is not submitted within this time frame.

Indemnity period in commercial insurance policies

In the realm of commercial insurance policies, the concept of the indemnity period holds significance in determining the extent of coverage and compensation provided to those who are insured. The indemnity period in commercial insurance policy refers to the duration during which individuals have the right to receive compensation after experiencing a loss or event that falls under their insurance policy coverage, such as a fire, a natural disaster, or business interruption. Throughout this period, the insurance policy typically covers any loss of profits, additional expenses incurred, or reduction in business turnover as a result of the covered event. It is crucial for both policyholders and insurers to establish a mutually agreed upon indemnity period during negotiations and when drafting insurance policies since it directly impacts an insured individual’s ability to recover from unexpected disruptions and maintain their financial stability following a covered incident.

Indemnity period in auto insurance claims

The time frame in which an insured person is qualified to receive compensation for damages brought on by covered occurrences, such as accidents or theft, is known as the indemnity period in vehicle insurance claims. This time frame normally starts when the incident happens and lasts until the vehicle is fixed, replaced, or the policy limit is reached.

Indemnity period in home insurance claims

The indemnity period in home insurance refers to the time frame when homeowners can request compensation for any damage or loss to their property or belongings caused by covered events like fires, thefts, or natural disasters. This period starts from the date of the incident. It lasts for the duration mentioned in the insurance policy. It’s crucial for policyholders to carefully review and understand the indemnity period mentioned in their home insurance policies, as it directly affects their ability to file claims and receive reimbursement for any losses suffered. Having a coverage duration can leave homeowners exposed to expenses, so it’s important to choose an indemnity period that suits their individual needs and potential recovery timelines. Additionally, any extensions or changes to the indemnity period should be discussed with the insurer to ensure the protection of the property.

Indemnity period in marine insurance claims

The period of indemnity, in the context of marine insurance usually starts when the insured event occurs, like when the vessel leaves the port or begins its voyage. It lasts for a duration as mentioned in the insurance policy. It’s crucial for both insurers and insured parties to have an understanding and agreement about how this indemnity period will be since it directly affects the coverage provided by the policy. During this time the insured party can seek compensation for losses covered by their insurance policy following the terms conditions and limitations stated in their policy document. Therefore having a defined indemnity period is vital to ensure that the insured party receives financial protection if any marine related incidents occur. In India’s world of insurance seeking legal guidance and consultation might be necessary to interpret and negotiate the terms of this indemnity period in order to serve the best interests of all parties involved.

Indemnity period in context of business interruptions

When it comes to business interruption, the indemnity period refers to the timeframe within which a company can file a claim for losses incurred due to disruptions in operations. Various events like disasters, fires, equipment breakdowns, and other covered risks can cause disruptions, and insurance coverage is taken for them.

During the indemnity period, the company has two tasks. The first is to make claims with their insurance provider. The second is to explore alternative means of payment, such as contractual agreements, to cover additional expenses and lost revenue until things return to normal. Typically, this period starts from the date of the incident covered by the policy and continues until either the stated restoration period expires or the business resumes from its interruption condition.

Indemnity period vs period of insurance

The terms “indemnity period” and “period of insurance” are connected to each other. They have different meanings in insurance policies. The indemnity period represents the time frame during which the insured is compensated for losses, while the period of insurance refers to the duration that the insurance policy remains valid. The indemnity period is a subset of the period of insurance, and its length varies based on covered events and their duration. It is important to understand the difference between both these terms and use them accordingly.

Tax Indemnity in cross border private equity and M&A deals

In cross-border private equity and M&A deals, the issue of tax indemnity is one that cannot be overlooked. Tax liabilities can be substantial, and parties should ensure that they are protected against potential liabilities arising from the contract. Tax clauses are usually included in the agreement to provide that protection. These issues are among the most important issues negotiated in the negotiations of such deals. In such transactions, in the event of a business merger or acquisition, there may be a potential tax liability that may be pending or arising from the company’s past performance, and the party in control should be sufficiently indemnified against the same.

The main point of negotiation for a tax indemnity is the period of indemnity. In this regard, the period of indemnity basically means the time duration during which the indemnified party can raise a claim regarding the tax liability. The indemnifier tries to keep it as short as possible, and the indemnified party tries to negotiate a period that is a bit longer so that they can get a longer window of time during which they can raise a claim if any tax liability arises.

Indemnity clauses might remain in effect for a very long time. The Income-tax Act does not clearly impose a limitation period on procedures relating to withholding tax liabilities, despite the fact that a seven-year limitation period has been specified for revisiting prior tax cases.

What is a tax indemnity

A tax indemnity refers to the responsibility of compensating for any tax obligations that may arise in the future following the completion of a transaction. Parties often include tax indemnity clauses, in agreements to safeguard themselves against tax liabilities that could emerge due to the transaction or actions taken by the company prior to the agreement. This indemnity serves as an assurance that if any tax related issues arise, both parties will be protected from any resulting losses or damages. Such assurance provides a sense of reliability for the party being indemnified during the finalisation of the deal.

Why is tax indemnity important

Tax liabilities for cross-border transactions can have a complex and significant impact. A tax liability can put the transaction in jeopardy. Parties must ensure that they are adequately protected against any unexpected tax liabilities that may arise. Tax indemnity clauses can provide this protection by ensuring that any tax liabilities associated with the transaction are addressed by the indemnifying party.

Without tax indemnity, parties would be exposed to potential losses and liabilities from tax-related issues that may arise after the transaction. Tax indemnity clauses can provide a level of certainty and protection for the parties involved. This helps in maintaining the transparency between the parties who are stakeholders in the transaction.

The parties to a tax indemnity

In a private equity or M&A transaction, the parties to the transaction negotiating over tax indemnity are typically the buy side and the sell side. The indemnity is usually provided by the sell side to the buy side as a form of protection against any tax-related issues that may arise after the transaction. The buy side can claim the tax amount that was due before the completion of the transaction.

Types of tax indemnities

When it comes to tax indemnity, it is generally a unilateral indemnification in which the party responsible for indemnification, the sell side, is obligated to assume all tax liabilities associated with the transaction, regardless of when they may arise. The indemnifying party must provide compensation for any losses or damages related to taxes that may occur, including interest and penalties. The purpose behind providing a tax liability indemnity is to ensure that the other party does not have to bear the weight of tax liabilities that arose before the deal was finalised, as it creates an undue disadvantage for the sell side in the deal. Indemnity provided for taxes in such transactions can broadly be divided into two parts, namely, full tax indemnity and limited tax indemnity.

Full tax indemnity

The purpose of this indemnity is to make sure that the buy side is not held responsible for any unexpected tax obligations that may arise after the transaction is finished. Essentially, it gives the buy side a level of protection, allowing them to move forward with the M&A deal knowing that they won’t be burdened with tax liabilities that could potentially reduce the value of the acquisition. Full tax indemnity clauses are thus a part of M&A agreements in India because they help manage tax related risks and encourage transparency between all parties involved.

Limited tax indemnity

In a transaction, most of the time, the sell side provides guarantees to the buy side about the accuracy of the target company’s tax positions and statements. However, it’s important to note that these guarantees have limitations in terms of time and financial responsibility. Usually, there is an agreed upon timeframe during which the sell side is accountable for any tax related claims that arise after the deal is closed. Additionally, there is often a limit on the exposure of liability to tax risks, and sometimes it is capped at a predetermined amount. This limitation promotes transparency and fairness in M&A transactions by making sure both parties share the responsibility of tax liabilities in a controlled and manageable way, leading to negotiations and reducing uncertainties in the agreement.

Difference between indemnity period and waiting period

The period of indemnity and the waiting period are two terms that appear to be similar but are actually quite different. The period of indemnity in the context of an insurance policy is the total time duration for which the policy is valid, and the losses under that period are covered by the insurance. On the other hand, the waiting period is the time duration that starts after the loss has occurred and a request for claim recovery is put forth before the insurance provider. The exact beginning of the waiting period for an insurance claim may vary depending on the specifics of the policy documents, but it generally begins when the policy is created or when the loss is realised and the insurance company creates the customs. An example of this is property insurance, especially fire and flood insurance. In such cases, the waiting period begins on the date of the injury or loss.

It should be noted that some insurance policies include a waiting period before work can begin. The waiting period helps prevent fraudulent claims and assures that payments only begin after a certain amount of time has elapsed since the policy was initiated for the claim. It is important to check the insurance policy carefully to find out the exact time the payment period begins.

This provides important information and a better understanding of the coverage period.

Discovery of loss after expiry of indemnity period

If a loss is realised after the expiration of the period of indemnity, serious concerns arise about the efficiency and reliability of claims. It is intended that, for a fixed term, the indemnity will provide a specified period within which the indemnified may report and submit losses. Indemnity contracts generally have clear terms and conditions regarding reporting requirements and deadlines for claims. Planners should review this information carefully to ensure they understand their responsibilities and rights.

Failure to report a loss within the indemnity period may result in a claim being denied, leaving the individual or company solely liable for the financial consequences. Recognising losses after the coverage period has passed not only creates uncertainty but also reveals potential flaws in the contract of indemnity.

Furthermore, this discrepancy reflects a potential disconnect between when the indemnifier becomes aware of the loss and when it is able to take appropriate action. This gap can be due to various factors, such as late discovery or a lack of knowledge about policy terms between the two. Because of these issues, parties should strive to be transparent in their negotiation of reporting requirements.

In the case of National Insurance Co. Ltd. vs. Sujir Ganesh Nayak & Co. & Anr. (1997), the Supreme Court held that, as per the forfeiture clause of the insurance policy, in case of rejection of the claim, the party had to file a suit within 12 months. The policyholder in this case filed the suit after 12 months. The Supreme Court rejected the suit, saying that it was barred by the limitation provided in the policy, which was agreed upon by the policyholder.

Conclusion

It is crucial for people and business owners in India to have an understanding of the concept of indemnity period. This particular time frame holds importance in insurance policies and other agreements as it provides security against unforeseen losses or damages.

Insurance policyholders should be knowledgeable about the triggers that determine payment terms, such as damage, interruptions in business operations, or other specified events.

Precise analysis and calculations of the duration of the indemnity period are vital for stakeholders to safeguard their interests and minimise losses. Seeking assistance from lawyers can greatly assist individuals and businesses in navigating through the complexities of this period. Legal experts can help interpret policy provisions, negotiate information, make informed decisions, and reduce any possible disputes between the parties involved.

FAQs

Can the indemnity period be extended after purchasing the policy?

In some cases, you can prolong the indemnity period once you’ve bought the insurance policy. However, it’s important to keep in mind that any extensions are subject to the terms and conditions specified in the policy. If the insured wants an extension of the policy, they should inform the insurer and be aware that there may be a cost involved.

What are the most common trigger points for invoking a tax indemnity?

The discovery of unreported tax liabilities, errors or misrepresentations in tax representations and warranties, or modifications to tax regulations that have an impact on the transaction may all result in the need for a tax indemnity.

What is the duration of the tax indemnity obligation?

The transaction contracts often establish the tax indemnity obligation’s duration, which might range from a set time frame to an indefinite duration.

What is tax indemnity in the context of M&A transactions?

Tax indemnity refers to an agreement where one party agrees to compensate or indemnify the other party for any tax liabilities or losses that may arise from the transaction.

References

An overview of effectiveness of enforcing discipline

By

Vanshika Kapoor

-

November 27, 2023

0

This article has been written by Golock Chandra Sahoo, pursuing a course on Personal Branding Program for Corporate Leaders from SkillArbitrage and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Table of Contents

Introduction

The imposition of discipline often causes resentment among employees. This imposition is intended to encourage employees to perform their tasks sincerely, diligently and in a timely manner without creating any sort of bottleneck. It is the performance that always matters. No employer likes a shortfall in performance or willful non-performance without any genuine reasons. Discipline imposition is a kind of adoption of a technique for improving human performance. Thus, any act of such imposition is now treated as a means for developing personnel and entities for the future. Then what actually does discipline? “Discipline” is a sum total of two words “discipline” and “in”. That means a disciplined person is a disciple of a particular system who performs transparently with responsibility and accountability. S/he always submits to the system as an obedient protégé and with every deficiency and disobedience, the enforcement of discipline becomes a necessity. The Britannica Dictionary defines discipline as “a control that is gained by requiring that rules or orders be obeyed and punishing bad behaviour.” That means bad manners are anti-disciplinary and responsible for initiating punitive measures.

Concept of discipline

As per McGregor, discipline has four characteristics. He called it the “red-hot-stove- rule.” From this, it is understood that the red hot stove is equal to a set of rules, codes, conducts, etc. prescribed by the organisation. With every violation, the burn is immediate; one gets a warning. Everyone who touches the stove is burned, i.e., anybody who ever may be impersonal is punished for violating the rules/norms. So discipline is consistent. It is the measuring rod of organisational system/ culture/Climate. It is a kind of training that moulds and strengthens individual behaviour with due impartiality. It is also a force that guides and prompts an individual to observe certain rules and regulations that are considered necessary for the attainment of organisational objectives. This discipline conveys different meanings for students, for teachers, for employees, for employers, for technocrats and for workers. Again, the word means differently, while we adopt this in connection with business, institutions, home, family and the like. At some point, discipline may be mild, mediocre or strong, depending on the requirements of the situation.

Types of discipline

There are different kinds of disciplines, viz., positive, negative, neutral, semi-positive and semi-negative. Positive discipline indicates a suo-motu willingness to work, and people work in a team with full cooperation and coordination with due cordiality to secure compliance with organisational norms and goals. Propagating positive discipline as a work culture helps organisations grow on all fronts. But on the other hand, negative discipline implies as enforcing discipline by resorting to some means of creating fear in the mind of employees, such as fear of suspension/discharge/loss of pay/demotion/transfer etc. The result of imposing such discipline is temporary and doesn’t last long. Over time, no such measures have worked to activate the demotivated employees. But neutral discipline is a form of discipline that has its roots in oneself. By tempting a person for self-development and by inducing a person to work without interference, this discipline is generated. This has a lower positive effect. Yet, this discipline is for self-motivated people who don’t require any pressure to comply in any odd situation and who are accountable, responsible, and teachable. Semi-positive discipline is discipline in which the boss applies moral pressure at times while permitting the employee to work in a holistic atmosphere. Only when it is needed, say at the time of the budget preparation, all have to work. No excuse is there to be away from such periodical, important assignments. Similarly, semi-negative disciplines imply some positive action by the employers on some particular occasion.

No particular type of discipline is adopt-worthy because the situations and circumstances of any organisation never remain constant. There is always a flexible turn. However, a regular application of disciplinary practices is a must for any organisation. No organisation can satisfy all its employees at every point in time. So certain employees may be observed to have a certain strain of lamentation and some particular theme of regular complaints, and every such grievance and complaint should be treated as an opportunity for positive action. Here are some selective tips for generating regular disciplines.

Tips for generations

There should be free communication from top to bottom and vice versa. Any erring employee should be explained as to what is wrong, what the prescribed standard is, and how an error can be better corrected. Any error detected and corrected should be widely circulated within the organisation. That may act as a guide for all.
A boss should exercise his power in a normative fashion rather than in a remunerative or coercive manner. Organisational norms in every issue should be given prominence. All in the organisation should be well alerted as to the prevailing and adoptable norms. All newly recruited employees should be given training to be aware of the organisational thumb rules for adhering to the laws, rules and regulations.
All personnel should be treated sympathetically with care and dignity. Employers/boss should have timely orientation for employee’s welfare. Every welfare measure should be reviewed from time to time to accept the requisite measure matching the advancement and development of the time in the interest of the mass of stakeholders for meeting the goals of the organisation.
The initiation of discipline in any organisation should follow progression progression/ succession, starting from the very date of the employee’s joining. A culture should flow throughout the organisation. A passion for preparing a boy from his early childhood to become a man is, in reality, always with the parents. So an employer should gear-up the employees in like manner with care, love, wishes, and affection and should be part of the rise and fall of an employee on the path of growth of the organisation.
While an action is proposed to be taken against an erring employee, an opportunity should be given so that the employee may explain the actual position. The explanation of the employee should be taken positively for an impartial judgement. Any grievance redressal is a part of disciplinary action, and so any representation in reply by the erring employee paves a way for the organisation to march in proper spirit while taking up the grievances. Final action, in any case in favour of or against the employee, can be taken again with due intimation to the employee concerned.
In many cases, failure to perform a job is due to poor or improper assignment. Tasks should be allotted based on the skills, training and interests of the employee. As far as possible, a specific training imparted to an employee shouldn’t be a mismatch with the allotted job. Discipline can only be generated when such job allotments are done judiciously on the basis of training imparted or for any other cause, such as experience in a previous job or expertise gained from technical education.

Discipline is a continuous process in emerging competitive scenarios everywhere. It may not be confined to the relationship between an employee and employer. We can take certain examples in this context. Devotees who stand in a queue to worship the deities in a temple may be covered under discipline, which saves precious time for many. Similar is the queue at the ticket booking counter in a railway station. Maintaining an environment to act on balancing the climate is also covered under discipline. The Sustainable Development Goal to be achieved as per government directives may include discipline in its ambit. Everywhere, imposition in proper perspective is an added advantage. Some sort of situation within the organisation where the imposition of employee discipline is an urgent necessity can be narrated as follows.

Stages where imposition is necessary

Stages where imposition is necessary are:

Every job needs to be standardised in quantitative and qualitative terms, and the gap between the intended performance and actual performance is to be spotted. If the gap is greater than 50%, the job requires discipline for improvement after giving due opportunity to the job holder.
If the conduct of an employee is found to be against organisational ethics, discipline can be enforced with immediate effect.
An employee, at the stage of job satisfaction/job delight, is a source of disturbance for others because time saved by him/her after completing the allotted job within a short time due to expertise is utilised as such. Such employees are required to be disciplined by changing their job profile or by enriching their activities with some additional assignments.
Habitual late attendance or habitual negligence in any case should attract quick enforcement of discipline.
In-subordination, assault or threat to superior officers, making false complaint or complaint without adequate proof, tampering with official documents, misappropriation of government cash/ store or organisational property, engaging otherwise one-self during office hours, etc. are all acts of indiscipline for which enforcement of discipline is badly necessary.

Conclusion

No organisation, position or person is powerful. It is a system that has been formulated that acts to generate discipline. If discipline is automatically generated, it has a very wide influence and far-reaching effect on making an organisation more advanced. The organisation on the whole is the super-boss and all others are subordinates. Every position in the hierarchy is thus either a boss to many or subordinate to some. So, all should be disciplined by some means. But imposition should not be taken as a whim or power show as no fear of punishment can remain forever. Rather, the employer-employee relationship settles everything without any pressure or strain. Love and mutual respect for each other act as motivation for performance. However, for discipline to be effective, it requires a free flow of communication from top to bottom and vice-versa. Penalties and punishments awarded in no case should differ. In all cases, discipline and disciplining should be taken up without any personal grudge and impositions should be made to the least possible extent.

References

https://dc.etsu.edu/cgi/viewcontent.cgi?article=1875&context=etd
https://www.thoughtco.com/discipline-in-schools-7738
https://files.eric.ed.gov/fulltext/ED629271.pdf
https://www.jetir.org/papers/JETIR1810A64.pdf
Organisational Behaviour BY Khanka SS
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Doctrine of merger

By

Sneha Mahawar

-

November 27, 2023

0

This article is written by Monesh Mehndiratta and Bhuvan Malhotra. The article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders) and Vanshika Kapoor (Senior Managing Editor, Blog iPleaders.). The article explains the concept of the doctrine of merger. It provides the circumstances under which the doctrine is applicable and those under which it is not applicable. It also provides its objectives, applicability, and use in different areas of law, along with case laws related to it.

It has been published by Rachit Garg.

Table of Contents

Introduction

The phrase Merger Doctrine or Doctrine of Merger is neither a doctrine of constitutional law nor a doctrine that is statutorily recognized. It is also not a doctrine of universal or unlimited application. The said doctrine may refer to one of the several doctrines for e.g. Merger Doctrine (civil procedure code), Merger Doctrine (family law), Merger Doctrine (Intellectual property rights), Merger Doctrine (Property law), etc. In family law, the doctrine means that after marriage, a woman’s legal identity is merged with that of the husband. So, a woman could not testify against her husband any more than he could testify against himself, as her identity had merged with his and two were now considered as one legal identity. Similarly, in Intellectual Property Rights, the merger doctrine is used to evaluate the ‘originality’ of any work that seeks copyright protection in India. The reason why the doctrine is called as such is that India follows the mid approach to the doctrine of ‘Sweat of the Brow’ (as followed in the UK) and ‘Modicum of Creativity (as followed in the USA). Thus, the Indian approach to evaluate ‘originality’ is by ‘merging’ the two doctrines of these countries, hence the name Merger Doctrine.

This paper envisages limiting the discussion of the Merger Doctrine to the civil proceedings only. The paper intends to explain the meaning of the said doctrine in civil proceedings. Further, by way of various observations of the High Courts and Supreme Court, the paper tries to highlight the conditions for the applicability and inapplicability of the said doctrines in various cases. Lastly, the paper also discusses how the Indian Courts have engaged with the doctrine of merger and special leave petitions.

Meaning of Doctrine of Merger

The doctrine of Merger or the Merger doctrine in civil proceedings is a common law doctrine that stems from the idea of maintenance of the decorum of the hierarchy of courts and tribunals. The court in the case of Gojer Bros. (P) Ltd. v. Ratan Lal Singh, correctly summed up the meaning of the doctrine as “the doctrine is based on the simple reasoning that there cannot be, at the same time, more than one operative order governing the same subject matter”. To put it simply, if there are two orders passed on the same subject matter, that is, one passed by a subordinate court like a tribunal and another passed by a superior court like the High Court, the operative part of the order by the subordinate court (tribunal in this instance) may be merged with the order of the High court.

Another instance where the Supreme Court summed up the meaning of the Doctrine of Merger was in the case of Kunhayammed v. the State of Kerala, wherein the court in paragraph 44 of the judgment held that-

“Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before the superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of the law.”

Not only does the above observation of the Supreme Court aptly summarizes the meaning of the doctrine but also lays down the conditions of where the doctrine of merger may be applied. For the doctrine of merger to be applicable, there must first be, a decision of a subordinate forum or court in existence; second, in such a decision, there must be a right of appeal or revision in existence which must be duly exercised. Subsequently, such appeal or revision that is brought in front of any superior court or forum, the decision of the subordinate court/forum must be affirmed/modified/reversed by the superior court. The result of such affirmation/modification/reversal of the decision of the subordinate court would mean that the previous order of the subordinate court would now merge with the decision of the superior forum and such merger of the decisions or orders would become the operative part which would be capable of being enforced.

Meaning of the doctrine under different laws

As said earlier, the doctrine of merger is used differently in different areas of law. In order to understand its concept, one must know how it is used in different areas of law.

In the case of family law, the doctrine implies a theory and idea in our society that, after marriage, the identity of a woman is merged with that of her husband, and the two are considered a family.
In the case of intellectual property rights, this doctrine is used when the originality of a work seeking protection under copyright is to be evaluated.
Further, in the law of contract, it means that the terms and conditions of a previous agreement or contract may be merged with the latter or final agreement if they are similar.
In criminal cases, the offences having lesser punishment or harm will be absorbed into offences causing great damage and harm to the victim and having stricter punishment.
The doctrine is used in property law to combine the terms of contract of sale in the final deed.
In the law of trust, the doctrine is applied when a trustee or a beneficiary holds both kinds of titles, i.e., legal and equitable. This results in both titles being merged into one simple interest.
In case of Code of Civil Procedure, 1908, the doctrine implies that when the superior court exercises its power in an appeal or revision filed by either party as a result of the decision or order passed by subordinate court, due to which the superior court reverses, modifies, or reaffirms the decision of subordinate court, the two orders are merged together and become operative, capable of being enforced.

Objectives of the doctrine

The doctrine of merger is based on the concept of respecting and maintaining the hierarchy of courts and the correctness of the judicial system. It provides that only one order can be maintained at a time with respect to a particular subject matter. Thus, the objectives of this doctrine are as follows:

It maintains and respects the hierarchy of courts by providing that the order passed by superior court will have to be enforced, provided that the order or decision of the subordinate court will be merged with the order of superior court.
It prevents the chaos and confusion regarding the enforceability of an order or decision that might occur if there are multiple orders or decisions in one suit with respect to a particular subject matter.
It reduces the chances of mistakes as the order of the subordinate court is merged with that of superior court, which is usually done after careful scrutiny.
It further prevents multiplicity of suits, which is possible due to multiple orders and decisions with respect to a single issue.
It also empowers the aggrieved parties to exercise their right to appeal or revision in a case. Thus, following the principles of natural justice.

Applicability of the doctrine of merger

For the doctrine to be applicable, the following conditions must be fulfilled:

There must exist a decision or order passed by a lower court in a suit.
There must be a right to appeal or revision in the suit in which the order has been passed.
The right must be exercised by either party.
The higher or superior court must either modify, reaffirm, or reverse the decision or order passed by the lower or subordinate court.
The result of such modification is that the order of subordinate court, if similar to that passed by higher court, will be merged and become operative.

In the case of Kunhayammed v. State of Kerala (2000), the Supreme Court observed that if an appeal or revision lies against the order passed by the subordinate court and the same has been exercised as a result of which the superior court modifies, reaffirms, or reverses the order of the subordinate court, both will be merged and the latter decision or order will be applicable and capable of being enforced.

Every coin has two sides, and similarly, there are instances where this doctrine is not applicable. These are,:

Cases where scope of appeal or revision is narrow as compared to that of original suit and proceedings.
Cases where the court has limited power to hear the appeal.
Cases where the order received in a suit has been secured by fraud or other illegal means.

In the case of State of Madras v. Madurai Mills Co. Ltd. (1967), the Supreme Court held that the doctrine cannot be applied to every case, irrespective of the nature of its subject matter and the scope of appeal or revision. It was observed that while applying the doctrine, the nature of the appeal or revision and the power and jurisdiction of the court to pass an order in the appeal or revision must be taken into consideration. Similarly, in the case of A.V. Papayya Sastry v. Government of A.P. (2007), the Court held that an order obtained by fraud is an exception to the doctrine and is not valid. Hence, the doctrine will be inapplicable in this case.

Appeal, Review and Revision

As stated above in the case of Kunhayammed v. the State of Kerala, the doctrine of merger can only be applied to situations where there is a right to appeal/revision or review and such right must have been duly exercised, it becomes important to list how such appeals, revisions, and reviews are different from each other and how each of them can be duly exercised or preferred using Civil Procedure Code, 1908.

Appeal

The expression ‘appeal’ is not defined under the Civil Procedure Code, 1908. The court in the case of Nagendra Nath Dey v. Suresh Chandra Rey defined appeal as “any application by a party to an appellate court, asking to set aside or reverse a decision of a subordinate court, is an appeal within the ordinary meaning of the term”. There is a fundamental distinction between the right to file a suit and the right to file an appeal as the appeal is a creature of statute and the right to appeal is neither an inherent nor natural right, whereas, right to file a suit is an inherent right. There are two types of appeals that can be exercised by parties, that is, against a decree and against an order. The appeals against a decree can be preferred or exercised by any aggrieved party under Section 96 of the code. The test of such aggrieved person or party was defined in the case of AP Gandhi v HM Seervai, wherein the court held that “an aggrieved person is one who has a genuine grievance because an order has been made which prejudicially affects his interests pecuniary or otherwise. Generally speaking nothing can be said to adversely affect the right of a person unless the decree operates as a res-judicata against him.” The two instances of situations where such appeal cannot be exercised by an aggrieved party can be found under Section 96(3) and Section 96(4) of the Code which states that there cannot be any appeal against consent decree (by virtue of Section 96(3)) and there cannot be any appeal against petty cases where the subject matter is less than ten thousand except on questions of law (by virtue of Section 96(4)). It is important to note that the appeal under Section 96 of the code is against a decree and not the judgment or the “finding of the judge”. Whereas, orders on the other hand is defined under Section 2(14) under the Civil Procedure Code which means a formal expression of court, which is not a decree. The rules for appeals against orders can be located in Section 104 – 108 and Order XLIII of the code and such appealable orders are listed in Section 104 and Order XLIII R1 of the Code.

Review

Review is a judicial re-examination of the case by the same Court and the Judge which can be exercised through Section 114 of the Civil Procedure Code, 1908. A review may be preferred or exercised by an “aggrieved person” and such expression has a similar meaning to “aggrieved person” under appeal as mentioned above by the case of AP Gandhi v HM Seervai. The Court cannot review its order suo-motu, so the same has to be necessarily exercised or preferred by the aggrieved party. An application for a review of judgment may be made by virtue of Order 47 R1 on any of the following grounds; first, the discovery of a new and important matter of evidence; second, a Mistake or error apparent on the face of the record; third, any other sufficient reason. The term ‘any other sufficient reason’ has not been defined in the Code but means “a reason analogous to those specified in the rule” by virtue of the case of Anirban Tuleshwar Sharma v. Anirban Pishak Sharma. Further, an review can lie when there is no appeal against a decree or an order by virtue of Section 114(a) of the code, and Order XLVII provides the procedure to prefer such appeals by the aggrieved party. Finally, a review lies when an appeal is possible but not preferred by virtue of section 114(b) of the codes, and such mere right to an appeal is no bar against a review. The constitution of India provides the power to review the Supreme Court’s own decision by virtue of Article 137. One important thing to note however that is, an application of review should be in form of a Memorandum of Appeal.

Revision

Revisional jurisdiction is a discretionary remedy that should be exercised only in the interests of justice. The dictionary meaning of revision is the action of careful revisiting and critical examination with a view of correcting or improving, therefore Section 115 of the Civil Procedure Code allows the High Court to call for the records of a case decided by a Court subordinate to the High Court under three circumstances i.e. first, that the lower Court has exercised a jurisdiction not vested in law; second, failed to exercise a jurisdiction vested in law; and third, acted in the exercise of its jurisdiction illegally or with material irregularity. Such revisional jurisdiction may be applied by the High Court suo-motu in addition to the application by ‘aggrieved person’ and such expression (‘aggrieved person’) is similar to the “aggrieved person” abovementioned (under appeal) in the case of AP Gandhi v HM Seervai. The report of the Civil Justice Committee in the Law Commission mentions that revisional jurisdiction is to be exercised in the following circumstances i.e. (i) Rule nisi should not be issued except on very careful and strict scrutiny; (ii) Where no stay is granted, the record of the subordinate Court should not be called for; and even where the record is necessary, only copies should be required to be produced; (iii) Whenever stay is granted, every effort should be made to dispose of revision with two to three months. It is important to note that revisional jurisdiction may be applied against both error of fact and error of law, provided that ‘aggrieved party’ provide the final conclusion on the question of jurisdiction, but such revisional jurisdiction comes to play only when no appeal lies and such appeal includes both first and second appeal. Lastly, there is no recourse against an order for revision except maybe through an SLP which is why the article also mentions how the Indian Courts have dealt with such Special Leave Petitions with respect to the doctrine of merger.

The jurisprudence of Doctrine of Merger in Indian Courts

The relevant judgment of the Supreme Court which touches upon the topic of doctrine of merger is that of Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat , wherein the Supreme Court cited various previous judgments to come up with the necessary conditions for the doctrine to be applicable. Therefore, it is first necessary to cite the various observations of High Courts and Supreme Court upon this doctrine.

One of the earliest decisions that touch upon the said doctrine is that of CIT v. Tejaji Farasram Kharawalla, wherein the Bombay High Court held that when an appeal is provided from a decision of the tribunal and the appeal court after hearing the matter passes an order, the order of the appeal court ceases to exist and it is merged with the order of the appeal court. The Bombay High Court also added that there might be instances wherein the appeal court merely confirms the order of the subordinate court or the trial court, even then, the order of the subordinate court would not remain enforceable. The reason that the doctrine stems from the idea of maintenance of the decorum of hierarchy of courts and tribunals, the order that will remain enforceable and operative, will be that of the superior court.

In the case of CIT v. Amritlal Bhogilal & Co, the Supreme Court in paragraph 10 of the judgment observed-

“There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the Tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law, the position would be just the same even if the appellate decision merely confirms the decision of the Tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority, the original decision merges in the appellate decision and it is the appellate decision alone that subsists and is operative and capable of enforcement.”

Thus, the Supreme Court merely reiterated the observation of Bombay High Court in the case of CIT v. Tejaji Farasram Kharawalla and stated that the hierarchy of courts and tribunals is to be maintained when the decision is reversed by the superior court and even when the superior court merely affirms the decision of the subordinate court.

Based on these cases, the court in the case of Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, came up with three conditions that would serve as check-points to see when the doctrine of merger may be applicable. First, with regards to the jurisdiction, that is, the jurisdiction exercised by the party shall be revisional or appellate jurisdiction; second, such jurisdiction must have been exercised by the party after issuance of notices; third, such revisional or appellate jurisdiction exercised must have been followed by a full hearing in presence of the necessary parties concerned with the case.

Therefore, to sum up, the above arguments, if any judgment is passed by the Supreme Court, all the orders passed by the subordinate courts will be merged in the judgment delivered by the Supreme court and no party could approach any other court to review or recall such order as also held in the case of A.V. Papayya Sastry v. Govt. of A.P. further, there can be no distinction in the doctrine of merger applicable to an appellate court dismissing an appeal or the appellate reversing or modifying the judgment of the subordinate court as also held in the case of Gojer Bros. (P) Ltd. v. Ratan Lal Singh.

Inapplicability of the Doctrine of Merger

The doctrine of merger is not a doctrine of rigid or universal application as per the Supreme Court in the judgment of State of Madras v. Madurai Mills Co. Ltd. The court in paragraph 5 of the judgment of this case held that-

“it cannot be said that wherever there are two orders, one by the inferior tribunal and the other by a superior tribunal, passed in an appeal on revision, there is a fusion of merger of two orders irrespective of the subject matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction.”

Therefore, we can construe from the above judgment that the doctrine would not be applicable to all the situations where there are two orders, that is, one by a subordinate court and the other by an appellate court.

The various circumstances under which the doctrine of merger would be inapplicable would include, first, instances where the scope of appeal is narrower than the scope of the original proceedings; second, instances where the power of the court itself, designated to hear such revision or appeal, is limited. Furthermore, the court in the case of A.V. Papayya Sastry v. Govt. of A.P, added another instance of a situation where the doctrine could be inapplicable. The court held that, where an order obtained by the successful party, was itself obtained by fraud, such order stood vitiated and not in consonance of the law. Subsequently, such illegal order was to be termed as “non-existent” and could not be merged.

Special Leave Petitions and Doctrine of Merger

The Constitution of India confers enormous powers on the Supreme Court as it allows bypassing the fixed hierarchy of appeals by virtue of Article 136, but such power that broadens the scope for invocation of the appellate jurisdiction of the Supreme Court is subject to the satisfaction and upon the discretion of the Supreme Court. Only when the Court is satisfied and hears the matter, the doctrine of the merger comes into question. There existed a lot of uncertainty regarding the application of the Doctrine of Merger in which the Supreme Court, without going into the merits of the case, dismissed the petitions. The case of V.M. Salgaocar & Bros. (P) Ltd. v. CIT brings some clarity as to the court in this case held that once the SLP is dismissed, one cannot construe that the court has expressed any opinion on the order through which the SLP was brought forth. In simpler terms, dismissal of the SLP without going into the merits of the case does not mean that the Supreme Court has expressed any opinion on the order of the subordinate court, which means, that the order of the subordinate court through which the appellate jurisdiction of Supreme Court was invoked, is to be construed as final and enforceable.

The abovementioned decision of Kunhayammed v. State of Kerala also holds importance in this regard. The court reiterated the abovementioned observations of the cases CIT v. Amritlal Bhogilal & Co and State of Madras v. Madurai Mills Co. Ltd and further added that the dismissal of the SLP, it being by a speaking or non-speaking order, does not substitute the order under challenge. The refusal of the court to dismiss the SLP only means that the Supreme Court was not inclined to exercise its discretion, in order to allow the appeal being filed to hear the matter.

Furthermore, the court added, if the order refusing the leave to appeal is a speaking order i.e. the order gives reason as to why the leave was not granted by the Supreme Court, such speaking orders will have two consequences. First, the statement of law in the order would be law as construed and contained under Article 141 of the Constitution. Second, whatever is left in the speaking order i.e. except for the statement of law would only be used to bind the parties and the subordinate court like tribunals by way of judicial discipline as the Supreme Court is the apex court of the country. The rest of the statements i.e. except the law in the order does not merge with the order of the subordinate court and also it is also not to be construed that the order rejecting the SLP to be heard, cannot be construed as res judicata in the subsequent proceedings between the parties. Only when the Special leave has been granted by the court and the matter has been heard, the doctrine of merger would be applicable in the same manner i.e. whether the order may be merely affirmation or modification of previous order or reversal, the subordinate court’s order would merge with the order of the Supreme Court and the Supreme Court’s order would be operative and enforceable.

Case laws on the doctrine of merger

Gojer Bros. Pvt. Ltd v. Ratan Lal Singh (1974)

Facts of the case

The facts of the case are such that the predecessors in title of the appellant filed a suit for eviction against the respondent due to non-payment of the rent. The learned Second Munsif passed a decision in favour of the appellants, holding that the respondent will not be granted any protection under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. The decree was also confirmed by the subordinate judge in the appeal aggrieved by which the respondent filed a second appeal against the decision of the first appellate court. The second appeal was also dismissed by the High Court of Calcutta, but the respondent was given time to vacate the property and hand over possession to the appellant.

During the time given to the respondent, the Act was amended multiple times. The respondent also filed a revision application in the High Court, which was allowed, and the suit was dismissed accordingly after the court granted the respondent’s application. While granting the application, the Court observed that the doctrine of merger will not be applied if the appeal is dismissed by the appellate court, and so the decree passed by the trial court must be enforced. The Court also granted the appellants special leave to appeal.

Issues involved in the case

Whether the decree passed by the trial court be merged with that passed by the High Court ?

Judgement of the court

The Supreme Court observed that whenever an appeal is made, the appellate court can reverse, modify, or dismiss it. The doctrine of merger provides that when an appellate court passes an order, the order passed by the lower court is merged with that order. It was further observed that in the present case, the subject matter of the suit and that of the appeal were identical. The Supreme Court ordered that the two decrees, one passed by the trial court and the other by the high court, be merged together, and hence, the appeal was allowed.

Kunhayammed and others v. State of Kerala and Another (2000)

Facts of the case

In this case, a dispute was raised by a large family before the forest tribunal of Kozhikode, wherein the tribunal held that the land did not belong to the government, as a result of which an appeal was made to the High Court of Kerala by the State of Kerala, which was dismissed. After this, a special leave to appeal was filed before the Hon’ble Supreme Court under Article 136 of the Constitution, which was also dismissed. The State of Kerala then filed a review application in the High Court against its decision. The respondents, on the other hand, objected to the maintainability of the petition.

Issues involved in the case

Whether the review petition is maintainable ?

Judgement of the court

The Court observed that the doctrine of merger and the right to review are closely interlinked with each other, so if the special leave to appeal is granted, the order will be merged with the order passed by the previous court. The Court also observed the following:

Where an appeal or revision lies against the order or decision of court or tribunal and the superior court, while dealing with the appeal or revision, makes a decision or passes an order, the order passed by lower court will be merged with the order passed by superior court, and it is this order that will remain operative and be enforceable in the eyes of law.
The special leave to appeal under Article 136 is divided into two stages. The first stage is the disposal of prayer or petition to file an appeal, while the second is when appeal is granted.
With respect to doctrine of merger and special leave to appeal, the court observed that the applicability of the doctrine depends on the nature of jurisdiction of the superior court and the issue or subject matter of the suit. For the applicability of this doctrine, it is necessary that the superior court be capable of modifying, reversing, or reaffirming the order or decision at issue in an appeal. Under Article 136 of the Constitution, the Supreme Court can modify or reverse a decision or order only while exercising its appellate jurisdiction and not while exercising discretionary jurisdiction, so the doctrine will be applicable only when it exercises appellate jurisdiction.
If the special leave to appeal is refused, the doctrine cannot be applied.
Once the special leave to appeal is granted and the Supreme Court passes an order exercising its appellate jurisdiction, the doctrine of merger becomes applicable.

The Supreme Court held that in the present case, the order passed by the High Court was subjected to appeal to the Supreme Court, wherein the state of Kerala could not succeed, and the appeal was dismissed. Moreover, the special leave to appeal was dismissed because it was devoid of merit. The court was not satisfied with using its appellate jurisdiction, so the order of the High Court could not be merged with the order of the Supreme Court and thus can be reviewed.

V. Senthur v. M. Vijayakumar (2021)

Facts of the case

In this case, petitioners and respondents were selected through the process notified by the Tamil Nadu Public Service Commission and were appointed to the Public Works Department. After 4 years, a seniority list was generated, wherein one of the petitioners contended that he, being a more meritorious candidate, was given less preference than the others belonging to the same category. Aggrieved by the fixation on the seniority list, many writ petitions were filed by the petitioners before the Madras High Court. The Madras High Court asked the respondents to make the seniority list according to the rank assigned by the Tamil Nadu Public Service Commission. This was again challenged in the Hon’ble Supreme Court, wherein the case was dismissed, but the petitioners filed petitions against non-compliance of the order of the High Court by the respondents.

Meanwhile, the Tamil Nadu Government Servant (Conditions of Service) Act, 2016, was enacted, and some of its provisions were challenged and declared ultra vires. The court further ordered that the seniority be fixed within 12 weeks. This order was challenged in the Supreme Court through special leave to appeal, which was dismissed. Review petitions were filed by people aggrieved by the dismissal of appeals in the High Court of Madras, along with contempt petitions. This review petition was dismissed and, hence, challenged by the selectees aggrieved by the non-reservation of the seniority list through special leave to appeal.

Issues involved in the case

Whether the appeal be granted or not ?

Judgement of the court

The Supreme Court, while explaining the doctrine of merger in a case of special leave to appeal, held that the doctrine is inapplicable if the special leave to appeal is dismissed, irrespective of the fact that the dismissal is a non-speaking order or an order having reasons. The court further held that the seniority list must be fixed on the merits of selection, and the one made on roster points would be invalid. Further, the court held that it cannot be said whether the order and judgement of the Madras High Court have been merged or not, but they will still be binding on all the courts and tribunals of the country.

Conclusion

The doctrine of merger is a concept of common law but cannot be called a doctrine of Constitutional law, nor can it be categorised as one that is recognised by any particular statute. It is rather founded on the principle of respecting and maintaining the hierarchy of courts and the judicial system. It originated from the need to fulfil the gaps and loopholes existing in the judicial system, wherein the confusion lies regarding the maintainability of orders passed by different courts with respect to a particular subject matter. The doctrine solves the issue of which order must be enforced and given importance if there are multiple orders passed by both subordinate and superior courts on a single issue.

It clarifies and provides that in this situation, the order passed by the superior court or the successive order would prevail and that the order of the lower court would be merged with the order passed by the superior court. The order passed after merging the two orders will be final and applicable. Thus, it can be said the doctrine is a saviour clause, which helps to prevent chaos and confusion and fills the gaps and loopholes existing in the judicial system.

Frequently Asked Questions (FAQs)

What is the objective of the doctrine of merger?

The main objective of the doctrine is to maintain and respect the hierarchy of courts. This further means that the order passed by the superior court will be enforced and binding in a case, but the decision of the subordinate court will be merged with it.

How is the doctrine used and applied in criminal law?

In criminal cases, the offences having lesser punishment or harm will be absorbed into offences causing great damage and harm to the victim and having stricter punishment. For example, A commits the offence of robbery and assaults the victim during the commission of the crime. In this case, the two offences will be merged, and it is likely that he will be charged with the offence of robbery, which has a higher punishment.

Is the doctrine of merger recognised by any statute?

No, the doctrine is not recognised by any particular statute. It is a concept of common law based on the idea of maintaining the hierarchy of the courts.

References

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Witch hunting in India : a socio-legal study

By

Vanshika Kapoor

-

November 27, 2023

0

This article has been written by Anant Kumar, pursuing a Diploma in Corporate Litigation from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Table of Contents

Introduction

In our society, witch-hunting is known and identified as gender violence. Gender violence is a broad concept that includes a gamut of violations ranging from intimate partner abuse to rape or gang rape in a public transport system or a brick kiln in a village. Cultural customs such as the forced purdah system, restricting movement, female genital mutilation, and the inhuman practice of bride burning, child marriage, and human trafficking of minor girls and women into the flesh trade in cities are forms of gender-based violence. Violence against women is deeply entrenched in our social systems. Gender violence is now more profoundly confirmed and informed with increased frequency by mass media penetration in our lives. Gender violence exists and recurs everywhere.

Witch hunting, a practice steeped in superstition, fear, and ignorance, continues to plague various parts of India, even in the 21^st century. This article delves deep into the phenomenon of witch hunting, shedding light on its historical origins, sociocultural underpinnings, and the legal framework in India. Despite being a crime, hunting remains a gruesome reality, particularly in rural areas, where innocent individuals, often women, face persecution, torture, and even death on accusations of practising witchcraft. This comprehensive analysis seeks to understand the reasons behind the persistence of this heinous practice and explore the legal mechanisms in place to combat it.

Historical origins of witch hunting

The first case was found in 1886. When one soldier’s wife, named Kunkoo, was ill, she could not go to the doctor for treatment but some of the believers in witchcraft washed the brain of this lady and asked, “put her hands in boiling oil and swung for days.” Witch hunting, although not unique to India, has manifested differently in various parts of the world. In India, it can be traced back to ancient times, where references to witches, sorcerers, and black magic can be found in mythological and historical texts. Belief in supernatural powers and magic has deep roots in Indian culture, which has contributed to the perpetuation of witch hunting. The study will explore how these ancient beliefs have evolved over time and merged with societal norms, leading to the persecution of individuals labelled as witches.

Sociocultural underpinnings

Understanding the sociocultural factors that fuel witch hunting is crucial for devising effective strategies to combat it.

Gender discrimination: Witch hunts predominantly target women, often elderly or socially marginalised, who are accused of practising witchcraft. The study will examine the gender dynamics at play and the intersection of witchcraft and patriarchy.
Superstitious and belief systems: Deep- seated superstitions, reliance on traditional healers and fear of the unknown contribute to the sustenance of witch hunting. An exploration of these beliefs and their role in perpetuating violence will be undertaken.
Socioeconomic factors: Witch hunting is often linked to disputes over land, property, or resources. Examining the socioeconomic factors that lead to the branding of individuals as witches is essential for understanding the root causes of these practises.
Community dynamics: Witch hunting often involves the active participation of communities, making it a collective crime. The study will investigate how community dynamics and pressures contribute to the perpetuation of witch hunts.

Legal framework of witch hunting in India

At present, six states Rajasthan, Jharkhand, Chhattisgarh, Bihar, Odisha and Assam—have specific laws targeting witch hunting, including Maharashtra and Karnataka has legislation broadly covering witch-hunting along with other superstitions.

The legal framework in India includes provisions to address witch hunting, but their effectiveness remains a subject of debate.

Legal provision: The Indian Penal Code of 1860, as well as specific state laws, contain provisions criminalising witch hunting and their enforcement.

Presently, Section 323 of the Indian Penal Code, 1860, is used to deal with witch-hunting.

Section 295A of the Indian Penal Code lays down the punishment for deliberate and malicious acts that are intended to outrage the religious feelings of any class by insulting its religion or religious beliefs. It is one of the hate speech laws in India.

A jail term extending up to three months or a fine of Rs 1,000 is mentioned for those who caused harm to a woman by branding her a witch. The law was cognizable and non-bailable meaning a police officer could make an arrest without a warrant, and bail is not automatic given the serious nature of the offence

Examining past cases and judicial responses to witch hunting will provide insights into the judiciary’s role in addressing this issue.

Challenges and implications: Despite legal safeguards, witch hunting continues unabated. This section will explore the challenges in implementing the law, including issues related to reporting, investigation, and witness protection.

Role of NGOs and activists: Many non-governmental organisations (NGOs) and activists are actively involved in the fight against witch hunting.

Impact on witch hunting victims and communities

Witch hunting has devastating consequences for both victims and communities. The study will include a comprehensive analysis of the physical, psychological, and social impact of witch hunting on survivors. It will also examine the broader consequences for communities, including social fragmentation and mistrust.

Major case studies on witch hunting

Some journalist reports narrate the horrors of witch hunting in different states of India, particularly in Jharkhand. State wise events are described here.

Sr. No.	State	Date	Description
1.	Madhya Pradesh	May 2008	Lata Sahu, a dalit woman in Raipur, Madhya Pradesh, contested the polls against the wishes of landowning castes. She was condemned as a witch, stripped and beaten.
2.	Madhya Pradesh	2008	A woman was hired by a man to use magic to improve his ill wife’s health. When his wife’s condition worsened, he began beating the woman, and five other locals joined in the abuse. She was tied to a tree, and she was slapped repeatedly and had her hair cut.
3.	Rajasthan	August 20, 2010	Kamla Bairwa, a dalit woman, after being dubbed a ‘witch’ by fellow villagers, was brutally thrashed by three men and two women at Jhalara village in Tonk district of Rajasthan. She was tied to a tree and thrashed mercilessly. In her complaint lodged at the Uniara police station, she complained that the villagers, particularly women, would call her a “dayan”, insult her, and beat her up. She feared that she would be killed by the villagers.
4.	Jharkhand	March 11, 2010	A Dalit husband and wife named Saheedi Bhuiyan and Samanti Bhuiyan were murdered in Jorapur village in Palamu, Jharkhand. The villagers killed them on suspicion of witchcraft. Three people who had their faces covered barged into their hut at night and took them away. Their bodies were found about 33 kilometres away from their home.
5.	Jharkhand	In July 2012	An elderly man and his wife were forced to ingest human urine and excrement in Jharkhand. The two were accused of practising witchcraft, which supposedly resulted in the death of local livestock.
6.	Jharkhand	In August 2012	In another village in Jharkhand, a man was pulled out of his house and buried alive for allegedly practising witchcraft.
7.	Chhattisgarh	In August 2013	Two women in their fifties were killed by three boys. According to the police, the father of one boy was ill and the other two boys’ fathers were dead. Believing the women were to blame, they “questioned those women about their involvement in witchcraft practises, but they refused to speak. This infuriated the boys, who first strangled them and later slit their throats.
9.	Jharkhand	2014	A boy was killed in the same state and police arrested two people accused of the murder for killing him “for the purpose of human sacrifice.”
10.	Bihar	On August 7, 2015	In Mandar village near Ranchi, a mob of villagers dragged out five women from their houses and lynched them to death, suspecting them to be involved in witchcraft and causing the death of a sick boy.
11.	Bihar	August, 2015	Five women were lynched at Mandar village near Ranchi by a mob of nearly 100 men. Police arrested about 27 attackers, many of whom were students at Mandar College. Ranchi deputy commissioner Manoj Kumar said though many women, particularly widows, are usually killed over family disputes and land grabs on the pretext of ‘witch hunts’, this particular incident was born out of pure superstition as the villagers accused them of using ‘black magic’ on children, causing illnesses and fatalities among them. The villagers were provoked by the death of an 18-year-old boy who had fallen ill. Jharkhand State Women’s Commission chairperson Mahua Manjhi opined that a stringent policy was needed to end such incidents. She blamed lack of education, awareness and road connectivity to towns and cities, besides unemployment, as reasons behind ‘dayan bisahi’ (the superstition of witchcraft) in the state.

To illustrate the multifaceted nature of witch hunting in India, the study will present case studies from different regions, showcasing the diversity of experiences and challenges faced by victims and communities.

Conclusion

Drawing from the findings of the study, a set of recommendations will be proposed, aimed at eradicating witch hunting in India. These recommendations will encompass legal reforms, community awareness programmes, and initiatives to address the root causes of this practise. The study will conclude by emphasising the importance of a concerned effort by government authorities, civil society and communities to put an end to this barbaric tradition.

In a nation striving for progress and social justice, the persistence of witch hunting serves as a stark reminder of the challenges that lie ahead. This socio legal study seeks to contribute to the ongoing discourse on witch hunting in India and, ultimately, pave the way for its eradication through a combination of legal reforms and societal transformation.

References

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