Section 91 of Code of Criminal Procedure (CrPC), 1973

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November 6, 2023

This article is written by Mayur Sherawat. The article talks about Section 91 of the Code of Criminal Procedure, its essential elements, exceptions, and constitutional validity along with recent case laws considering the same.

Introduction

Let’s imagine a scenario where a criminal case is being investigated by the police. During the investigation, the police discover that certain documents or materials are crucial for the proper conduct of the case. However, these documents are not readily available and cannot be easily obtained without the assistance of the court. In such a situation, Section 91 of the Code of Criminal Procedure,1973 comes into play, It empowers a court or an officer in charge of a police station to issue a summons or a written order for the production of documents or things in possession of a person related to the matter. The court can gather pertinent evidence and make sure that parties present the requisite paper or electronic records to back up their claims by using Section 91 of the CrPC.

What does Section 91 CrPC state

The Section essentially conveys the following –

Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding before a Court or officer, such Court may issue a summons,(in case of an officer) a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce said thing at the time and place stated in the summons or order.
If a person is asked to provide a document or something else under this provision, they can send the requested item instead of showing up in person, and this will be considered as complying with the request.
Section 91 does not cover the production of the following items-

(a) Those listed under Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers Books Evidence Act, 1891 (13 of 1891), or

(b) a letter, postcard, telegram, or other document or any parcel or thing in the custody of the postal or telegraph authority.

In situations where procuring of personal attendance of a person related to the case is required, either summons may be issued under Sections 61 – 69 or warrants under Sections 70 – 81. A summon under Section 2(w) of the CrPC is essentially a court order requiring a person to appear in court while warrants under Section 2(x) of the CrPC authorise law enforcement authorities to conduct actions such as arrest. The key difference separating the use of Section 91 from warrants and summons is that the mere causing of production of necessary documents suffices the purpose and personally appearing before the court is not essential.

Essential elements of Section 91 CrPC

‘Document or other thing’

The word thing refers to a physical material and not an abstract thing. Thus by extension issuing summons for the purpose of taking a person’s specimen signature or handwriting cannot be validated as to be for the cause of producing a document under this Section. The same was established in T. Subbiah v. S.K.D. Ramaswamy Nadar, (1969), where the Madras High Court held that summoning an accused for the creation of a specimen signature was violative of Article 20(3) of the Constitution of India and amounts to the use of testimonial compulsion.

Despite there being a lack of any specific references to data or electronic evidence in the plain wording of the Section, Section 91 is commonly understood to be used by Law enforcement agencies to include the production of digital data and other forms of electronic evidence possessed by intermediaries or other persons.

The desirability of documents to be summoned

The essential element of any order under Section 91 of the CrPC is the reflection of the court that the documents to be produced must be desirable or necessary to the trial, investigation, inquiry, trial or other proceeding under the Code. This condition traces its development in the case of Ajay Mukherji vs The State And Ors (1971). In the case directions given to the petitioner to produce accounts, receipts, vouchers, and minute books of congress meetings by the Chief Presidency Magistrate, Calcutta were quashed by the Calcutta High Court, as the case dealt with matters concerning defamation of Ajay Kumar Mukherji (the petitioner) under Section 501 and 502 of the Indian Penal Code (IPC),1860 and the production of said documents was deemed unnecessary by the consideration of the High Court.

The identity of the possessor must be known

Along with that, the court must be informed of the name of the person in whose possession or power the document is, or else the application for summons will not be entertained, this was held in Lotan Bhoji v. The State of Maharashtra, (1974). In the mentioned case the accused who was booked under Sections 7(c), 4(iv) and 7(b) of the Protection of the Civil Rights Act, (1955) filed an application for the summons of statements of witnesses, that the accused alleged were taken by the police but not supplied to the accused. The application for summons of the documents was vaguely addressed to the superintendent of police and the names of the witnesses were also absent in the application. It was held that an application made without mentioning the names of officers or witnesses certainly cannot be entertained.

Requirements for a written order to be issued

The requirement for a written order when a police officer exercises their authority under Section 91 serves as a procedural protection. Courts have determined that in this situation, a verbal order or instruction given to someone to produce a document or item would not be sufficiently established by Emperor vs Durga Prasad And Ors, 1922

Exceptions to Section 91 CrPC

The term ‘person’ mentioned in the Section does not include an accused person in trial. This exception was established indirectly through consideration of Section 94 of the CrPC in the landmark case of Shyamlal Mohanlal vs State Of Gujarat (1964). In the case a registered money lender was prosecuted for failure to maintain books in accordance with Money-lenders Act, 2010 and an application was filed before the Magistrate asking the respondent to produce certain books of account. The Magistrate refused to issue such an order drawing on the idea of Article 20(3) of the Constitution, the matter reached the Supreme Court after an appeal and a judgment delivered by Justice Sikri. held that a directive that compels an individual to provide a document, contrary to the provisions of Article 20(3), would not be considered legal according to Section 175 of the Indian Penal Code. Not only did the court take into account the constitutional validity of providing limited rights against self-incrimination but also examined Sections of the CrPC pointing towards the protection of the accused against testimonial compulsion. The standard for affording some degree of protection to the accused traces from English law where taking into account political considerations, the aim was not just to bring the criminal to justice but also to protect the accused from a tyrannical abuse of authority by the government.

Significance of Section 91 CrPC

It assists in protecting and safeguarding evidence that, if not presented to the court or the police officer, could be misplaced, destroyed, or tampered with.
It makes it possible for law enforcement authorities or the court to carefully review and evaluate the item or document submitted in order to determine its admissibility, legitimacy, and significance.
It makes it easier to find and reveal information that could be important to the case and either support or refute the accusations made against the defendant.
By making sure that no evidence is suppressed or disguised, it safeguards the rights and interests of all parties engaged in the case, including the state, the accused, the complainant, and the witness.
Because police officers and courts are required to adhere to specific protocols and precautions while issuing and carrying out summonses under Section 91 CrPC, it also acts as a check and balance on their authority. For instance, they must abide by Sections 123 and 124 of the Indian Evidence Act, (1872), which protects the confidentiality and privilege of specific documents. Additionally, they must offer the person called a fair amount of time and a chance to comply with the request.

Constitutional validity of Section 91 CrPC

Historical context to rights against Self-Incrimination

As illustrated by the previous case Section 91 comes in opposition to the rights of the accused, mainly those of self-incrimination. The maxim ‘nemo tenetur seipsum accusare,’ which means ‘no person is bound to accuse himself,’ was the historical root behind rights given to the accused against self-incrimination. The maxim is one facet of the accusatorial and inquisitorial legal systems that were followed in different periods in England. In the accusatorial system, which existed prior to Henry II’s reign, the community and then the state pursued alleged wrongdoers through the examination of others, as well as the defendant in the early years. The inquisitorial system, which originated in religious courts, required the alleged wrongdoer to swear an oath ex officio affirming his guilt. An official had the authority to require anyone who was in front of him to take an oath under which they would swear to tell the truth to the best of their knowledge regarding all matters about which they would be questioned. Prior to taking the oath, however, the individual in question was not informed of the specifics of the charges against him or whether he was being investigated for a crime.

The idea that a person cannot be forced to act in a self-incriminatory manner against themselves under oath in any proceeding before an official tribunal seeking information gained gradual following. This is due to the use of this oath in English court proceedings, especially to root out political heresies, which increased the opposition from different political stakeholders. Along with that growing ideas of enlightenment and atheism led to further opposition to the ecclesiastical oath ex officio. These ideas gained traction in American jurisprudence and were consequently adopted as the basis of the 5th Amendment in the American Constitution.

Rights given under the Indian Constitution

Indian jurisprudence adopted and tailored the English law and the American legal system to its own scenario, taking inspiration from the same it also recognized the rights of the accused against self-incrimination under Article 20(3) which states it is firmly established that the authority and discretion granted by Section 91 are very extensive, constrained only by the restrictions explicitly stated in the provision.

Privacy concerns over the use of Section 91 CrPC

The absence of any exemptions in Section 91 for any particular sensitive items or documents (such as a diary) would indicate that privacy was not a top priority while this provision was being written. Alternatively, it is possible that the policy was intended to favour law enforcement authorities’ interests in security and investigation over personal values like privacy.

However, the decision of the nine-judge bench of the Supreme Court in the historic case of Justice K.S.Puttaswamy(Retd) vs Union Of India, 2018, where the right to privacy was affirmed to be a fundamental right under the Constitution of India, is a key development that will likely affect the exercise of powers under Section 91 going forward and calls for its reform. It still needs to be determined in this situation whether powers under Section 91, particularly when used unilaterally by police(in the way of orders issued by the police), would pass the fairness, justice, and reasonableness test. The wide latitude given to police to issue orders under Section 91, with no assurance that privacy will be taken into account as a ground, is of particular concern. Although it has happened on occasion, Indian courts have rarely used privacy as a justification for interfering with Section 91 directives. This approach will probably change in the post-Puttaswamy age when parties will challenge Section 91 rulings more frequently on the grounds of privacy. The downstream impact of this will also mean that lower courts will be more inclined to examine the effect of summonses to produce documents or things, on privacy, when issuing orders under Section 91.

Landmark judgements

The case Google India (P) Ltd. v. Visaka Industries, (2020), re-established in an interesting manner in which powers under Section 91 have been interpreted is that orders under the provision need not only be directed to individuals (‘target individuals’) who have in their personal possession, documents or things. Courts have interpreted the powers under this provision to extend to the production of documents and things that are in the control of an individual who is holding the same on behalf of the target individual. For example, heads of tech companies can be included under the section to produce data present on their sites and products.

In the case of CBI v. V. Vijay Sai Reddy, (2013), the Apex Court held that the investigating officer in a case need not be required to approach the High Court to authorise each and every direction, When the Investigating Officer of a case is in need of certain documents/information for verification with reference to the investigation it is sufficient to place all the materials under Section 91.

In the case of Kishore Samrite v. State of U.P, (2012), the appellant, Shri Kishore Samrite, an ex-member of the legislative assembly of Madhya Pradesh filed a writ petition acting as the next of friend to Sukanya Devi, Balram Singh and Sumrita Devi According to the appellant, these three persons were unlawfully detained and incapacitated to file the petition. The appellant claimed to have gained this information from news and blog sites. The petition was dismissed due to lack of evidence and malice on the part of the appellant to abuse the court process and imposed a penalty clause on the appellant for the same. During the proceedings of the case, the court held as sub silentio the fact that it is possible to apply Section 91 in a private complaint, and the clause is applicable to both police and private complaints.

Another case of special importance is that of Om Parkash Sharma v. CBI (2000), the Supreme Court recognized that although the language of the provision might suggest unlimited authority, the inherent restriction on its exercise depends on the specific stage or circumstance in which it is applied, in line with the nature of the proceedings and the compelling needs and desirability to accomplish the intended task or objective. This judgment effectively made the provision constitutionally valid although the sustainability of its application can be determined judicially on a case to case basis.

Conclusion

In conclusion, Section 91 of the Code of Criminal Procedure is a powerful tool in the hands of courts and law enforcement authorities to compel the production of documents or other tangible items deemed necessary for the purposes of investigation, inquiry, trial, or other legal proceedings. It is a provision that needs finer tuning in order to balance the need for gathering evidence with the rights and protections afforded to individuals, particularly in the context of self-incrimination.

Frequently Asked Questions (FAQs)

What is Section 91 of the Code of Criminal Procedure (CrPC)?

Section 91 of the CrPC empowers a court or an officer in charge of a police station to issue a summons or a written order for the production of documents or things in the possession of a person when it is necessary or desirable for the purposes of an investigation, inquiry, trial, or other legal proceeding.

What types of documents or things can be requested under Section 91?

Section 91 allows for the production of any document or physical object that is necessary or desirable for the purposes of the legal proceeding. This can include records, papers, electronic documents, or any tangible item.

Are there any exceptions to Section 91?

Yes, Section 91 does not apply to certain documents or things, such as those covered under Sections 123 and 124 of the Indian Evidence Act, 1872, or items in the custody of the postal or telegraph authority. Along with that it also does not include items listed under the Banker’s Books Evidence Act, 1891.

Can the Court apply Section 91 during the Investigation stage?

A Court is not entitled under Section 91 to produce documents or other things during the investigation stage of a private complaint. The purpose of this stage is to ensure that the complaint is made in good faith and that there are sufficient grounds for proceeding with the case. This was established in D. Veeraiah v. K. Veeraiah(1987) where the Andhra Pradesh High Court ruled against an order of the Munsif Magistrate for summons of a car under Section 91 during the investigation stage of a complaint.

Is the Section Constitutionally valid?

Section 91 has been deemed constitutionally valid, but its application is subject to the nature of proceedings, necessity, and desirability.

How has the right to privacy affected the use of Section 91?

The recognition of the right to privacy as a fundamental right by the Supreme Court in the Puttaswamy case has raised concerns about the use of Section 91. Courts may now scrutinise Section 91 orders more closely for potential privacy violations, which may lead to reforms in its application.

Can Section 91 be challenged in court on the grounds of privacy?

Yes, in the post-Puttaswamy era, parties are more likely to challenge Section 91 orders on privacy grounds. This may lead to a greater examination of the impact of such orders on privacy, especially when issued unilaterally by the police.

References

Tufail, R.M. and Saeed, M. (2011) ‘4’, in K.K. Iyengar’s commentary on the Code of Criminal Procedure, 1973 (act no. 2 of 1974)
https://www.ijlmh.com/paper/right-against-self-incrimination-a-detailed-study-analysis-of-laws-prevailing-in-india/
Law Enforcement Access to Data in India: Considering the Past, Present, and Future of Section 91 of the Code of Criminal Procedure, 1973, 15 IJLT (2019) 67
SC Sarkar, The Code of Criminal Procedure (11th edn, Lexis Nexis 2015) ch VII

Mergers and acquisitions : impact on technological performance

By

Vanshika Kapoor

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November 5, 2023

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This article has been written by Himanshu Agarwal, 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

Merger and acquisition (hereafter referred to as M&A) is becoming one of the most prominent aspects of organisations. Companies have started exploring synergy with other organisations, which results in M&A. This article focuses on the technological performance of M&A, which is related to Hi-Tech sectors. In the early days, the computer industry was considered the only Hi-Tech industry. However, the use of artificial intelligence in various fields has changed the definition of the hi-tech sector in the current scenario. The article focuses on the notable M&A transactions of the year 2022 and historical successful and failed M&A transactions.

After comprehending the aforesaid M&A transactions, some observations have been noted, i.e., reasons for the spurt in M&A activities, reasons for failure and shortcomings of the M&A. The conclusion of the article is that M&A plays a vital role in achieving economies of scale, gaining competitive advantage and overcoming the shortcomings of the company.

About the Hi-Tech Industry: In this fast-paced society, all sectors are witnessing technological advancements that are unmatchable. Technological advancement has ensured better cross-border communication, mobility, healthcare, education, the way we work on an everyday basis, etc. All these technological advancements are a boon for Hi-Tech industries.

The Hi-Tech industry, also referred to as the technology industry, includes and is not limited to industries engaged in research, development, manufacturing, and distribution of technological products, services and solutions. The need for these industries can be witnessed in sectors like telecommunications, software development, computer hardware, artificial intelligence, internet-based services, robotics, and many more.

The Hi-Tech industry’s contribution to the national GDP:

Job creation and economic growth.
Innovation and advancement would enhance the overall quality of life.
Companies, organisations and countries with better technological advancement have a competitive edge on a global platform.
Better cross-border communication.

In a nutshell, Hi-Tech industries have a vital position in the world today for the various aforesaid reasons. To gain a competitive edge, many organisations adopt M&A. Organic growth sometimes becomes a hindrance to gaining competitive advantages.

Notable technology sector mergers and acquisitions globally in 2022

Google’s acquisition of Mandiant

Type of deal: Acquisition

Approx. deal size: US$5.4 billion

Background of the deal: Google, an internet-based company, is expanding its footprints on the cloud platform. Today, world hacking and cyber security challenges have increased severalfold. Despite the growing security concerns, Google made a big announcement that they would keep the data and infrastructure of the to-be customers and existing customers safe with them.

Significance of the transaction: Mandiant is a cyber security firm. To strengthen the commitment and bring more confidence to the Google customer base, this acquisition was announced. The acquisition will strengthen the end-to-end security operations suite.

Vista Equity Partners’ and Evergreen’s acquisition of Citrix

Type of deal: Acquisition

Approx. deal size: US$16.5 billion

Background of the deal: Vista Equity Partners is a leading investment firm, exclusively investing in software, data and technology-enabled organisations.

Similarly, Evergreen is an investment firm and affiliate of Elliott Investment Management LLP, which also focuses on investment pertaining to technology-enabled companies.

Significance of the transaction: Industry experts believe that Vista Equity Partners’ existing company, TIBCO, combined with Citrix Union is very critical. Key figures of the combined entity are:

One of the largest software development companies in the world.
The customer base of 4 lakhs covers 98% of Fortune 500 companies
The user base is 100 million in ~100 countries.

Microsoft’s acquisition of Nuance

Type of deal: Acquisition

Approx. deal size: US$19.7 billion

Background of the deal: Microsoft is one of the oldest technology firms that develops, manufactures and sells computer software, licences, varied industry solutions, etc. The presence and use of artificial intelligence (AI) are increasing in the day to day life. Microsoft is developing many solutions around this concept and technology.

Significance of the transaction: Nuance is a technology company providing various applications that are AI-based to industries in various sectors like healthcare, financial services, retail and telecommunications. This acquisition will provide a competitive edge to Microsoft’s cloud platform and strengthen the company’s presence in the healthcare sector.

Adobe’s acquisition of Figma

Type of deal: Acquisition

Approx. deal size: US$20 billion

Background of the deal: Adobe is a digital design firm engaged in design and marketing. In the last few years, the company’s core business has experienced a slowdown because of new edge design tools. Adobe has started exploring other avenues and new ways of generating revenue.

Significance of the transaction: Figma is a web-first collaborative design platform positioned as a serious competitor to Adobe’s core business. Adobe’s new acquisition will strengthen its portfolio and also ensure solid profitability. Moreover, Adobe has not invested much in this field, so it was prudent for the company to acquire Figma.

However, it has been reported that there are some serious regulation concerns, which can even jeopardise the transaction.

Orange’s merger with Grupo MásMóvil

Type of deal: Merger; 50 – 50 joint venture

Approx. deal size: Combined enterprise valuation of €19.6 billion.

Background of the deal: Spain’s mobile market has four telecom operators with market shares in the range of 21 to 28%, respectively. The sector needs a significant amount of investment for 5G in terms of customer acquisition and infrastructure upgrades.

Significance of the transaction: Orange and MásMóvil, having 2nd and 4th positions in the market, joined hands together to gain the 1st position in the Spanish telecommunication market. The combined entity will have the financial capability to scale up the investment in FTTH and 5G, which would be fruitful for the Spanish customers.

Elon Musk’s acquisition of Twitter

Type of deal: Acquisition

Approx. deal size: US$44 billion

Background of the deal: Elon Musk, the world’s richest man, holds a 9.1% stake in Twitter. He was the largest stakeholder, which compelled him to accept an unsolicited offer to buy the platform.

Significance of the transaction: Musk’s strategy was to ensure free speech worldwide. After his Twitter acquisition, Musk tweeted that the bird is free now. However, considering the current situation of the company, it seems the new owner is confused or finds it difficult to run the company.

Microsoft’s acquisition of Activision Blizzard

Civil-Litigation-Practice,-Procedure-and-Drafting_696X293-

Type of deal: Acquisition

Approx. deal size: US$68.7 billion

Background of the deal: Microsoft is one of the oldest technology firms that develops, manufactures and sells computer software, licences, varied industry solutions, etc. Computer games, console games and cloud games are gaining significant popularity among the young generation. Earlier in the year 2021, Microsoft acquired Bethesda, a gaming firm.

Significance of the transaction: Activision Blizzard is one of the world’s most valuable companies. This acquisition makes Microsoft 3rd largest gaming company by revenue, behind Tencent and Sony.

Notable technology sector mergers and acquisitions Indian deals in 2022

In 2021, there were many companies that diluted their non-core assets. A similar trend was observed in the year 2022 in the domestic market. Most of the domestic transactions were observed in the IT space. The IT space strengthened its dominance in the market by acquiring smaller companies. Some of the notable M&As in the markets are as follows:

Reliance’s acquisition of majority stake in Addverb

Type of deal: Acquisition of 54% stake

Approx. deal size: US$132 million

Background of the deal: Reliance is a multi-billionaire conglomerate with an interest in Telecommunication, Finance, Retail, Petroleum and Energy, technology platforms, etc. The company is expanding its footprints on the new edge technology platforms.

Significance of the transaction: Addverb Technologies is an Indian startup in the robotics space. They provide building automation and robotic solutions for warehouses and factories. Reliance has been using the services of Addverb Technologies, i.e., pick-by-voice software, robotic conveyors and semi-automated solutions in the warehouse. Addverb technology generates ~ 80% of the revenue from the domestic market and with Reliance’s resources, they would look to expand the domestic market exponentially and may foray into foreign markets.

HCL’s acquisition of a majority stake in GBS & Star Schema

Type of deal: Acquisition of 51% stake

Approx. deal size: US$42.5 million

Background of the deal: HCL Technologies (HCL), a leading technology company in the world, is providing solutions to transform industries into next-gen enterprises. HCL offers IT and business services, engineering and R&D services (ERS) and products and platforms.

Significance of the transaction: Starschem is a leading provider of data engineering services. Other than data engineering services, the company also provides consulting and technology to Global 2000 companies in the U.S. and Europe. As per industry experts, this is a strategic acquisition by HCL. It will foster the company’s growth in the field of data engineering and strengthen its position in Central and Eastern Europe.

Infosys acquisition of Oddity

Type of deal: Acquisition of 51% stake

Approx. deal size: €50 million

Background of the deal: Infosys is a global leader in the next generation technology, consulting and digital services. Infosys, in its four decades journey, has expanded its service offerings. Earlier, Infosys had acquired WONGDOODY, a creative agency providing an experience-and-design platform to Infosys. WONGDOODY’s prestigious client list includes some of the most notable industry names, like Amazon, Honda, and other Fortune 500 companies.

Significance of the transaction: Oddity, a German digital marketing company, has a strong presence in digital communication and commerce agencies. Oddity provides a ready setup of digital commerce, marketing knowledge, and the metaverse to Infosys services. WONGDOODY and Oddity, Infosys will witness technological transformation in the coming years. Moreover, it will strengthen Infosys’ presence across the European and Chinese markets.

Failed M&A in history

M&A is considered a strategic step for the future growth of a company. The acquirer or merged entity aims to create value for the company and for the clients. However, all the M&A does not yield the envisaged results. The article aims to observe these falling-out deals to comprehend the key reasons that dispel M&A.

America Online and Time Warner

Type of deal: Merger

Approx. deal size and Year: $165 billion in the year 2000.

Background of the deal: The merger strategy was considered a sound strategy by most industry experts as it enabled Time Warner to use AOL’s customer base of tens of millions and also allowed AOL to benefit from the cable network of Time Warner. Time Warner had book, magazine, television and production capabilities and merged with AOL’s millions of internet subscribers to form the ultimate media company in the world.

Reasons for the failure: Some of the key reasons cited by industry experts for the failure are:

The deal took place when dot com industries were booming; however, the dot com bubble vanished by the end of the deal. AOL suffered huge losses.
A significant amount was spent on advertising, which yielded minuscule results.
Cultural differences between the companies were a major roadblock to their smooth functioning.

End result: Both companies hereto separated into two firms in less than a decade from the date of the deal.

Sprint acquired a stake in Nextel Communications

Type of deal: Acquisition of a major stake.

Approx. deal size and year: $35 billion in the year 2005.

Background of the deal: The United States telecommunications market had two fierce competitors, Cingular Wireless and Verizon Wireless. Sprint acquired the major stake in Nextel Communication, making the combined entity the 3rd largest telecommunications player in terms of customer base. The combined entity hoped to grow by cross-selling products and services to a newly acquired customer base.

Reasons for the failure: Some of the key reasons cited by industry experts for the failure are:

Poor due diligence before acquisition
Both companies used different technologies, which apparently made it difficult to integrate or make a common platform.
Both companies had different strategies for customer acquisition and marketing. There was constant rift and dissatisfaction between the employees.
Cultural differences and incompatibility between companies added fuel to failure.
The aforementioned differences resulted in a loss of customer base and poaching of senior employees by competitors.

End Result: In April 2020, T-Mobile acquired a 100% stake in Nextel and completed the merger with Sprint.

Status of the tech industry and startups globally and key reasons for the M&A deals

The tech industry is growing at a fast pace; many industry experts believe all companies want to stay abreast of the new developments. Fear of losing out, like Sony, Nokia, or even Kodak, is again and again cited in the tech industry. One way of moving faster is by spending heavily on R&D or acquiring a new startup that has done enough R&D or has gained significant market dominance.

After comprehending various historical and recent M&A deals in India and globally, these are the key reasons for the M&A deals:

Gaining market share: When two companies merge, or one acquires another, the combined entity aims to acquire a customer base in the existing region or gain a customer base in the other regions. For example, in the deal in 2022 for HCL’s acquisition of a majority stake in GBS and Starschema, similar reasons were witnessed. HCL gained a significant position in the European region. The combined entity will gain immensely; however, some risks are associated with such M&A.
Access to new technology: One of the biggest bets in M&A is on gaining new technology. The traditional way of developing R&D labs takes time and competitors have already gained the edge. It may also happen that some other technology makes the developed technology obsolete.
Economies of scale: A combined entity can produce the product and services at a lower rate or new products and services can be pushed to the existing customer base. Pushing new services and products into the existing customer base means lower acquisition costs for the new customer base.
Improved competitive position: A combined entity gains a dominant position in the market and is better placed to compete with competitors. This assists them in acquiring new customers and growing their business quickly.

Why are tech- startups resistant to M&A

Overall, M&A is seen as one of the best bets in the tech industry for growth in terms of market share and revenue growth. Tech startups see themselves as different from larger organisations in terms of innovation, flexibility, working culture and growth strategy. Hence, many startups are reluctant to do M&A deals. Will comprehend the factors for the resistance in detail:

Disruption: Tech startups consider themselves disruptors in the technology world. They believe they can achieve more and become established organisations in a short span of time. They will have limited upside if acquired or absorbed into larger organisations.
Cultural difference: Typically, startups have flexibility in terms of dressing, communication and timing, which can be difficult to match with larger organisations. For example, one typical trend in Indian companies is using “Sir or Madam” for seniors. In America, companies and startups use individual names instead of using Sir or Madam.
Loss of control: A young entrepreneur wants to maintain or remain in control of the organisation, which is impossible if combined with larger organisations.
Valuation: From a financial perspective, it makes more sense for startups to go public, as they would fetch a higher valuation compared to associations with larger organisations.

Some factors make startups resistant to being acquired or merged with larger organisations; however, this is not true for all. At the end of the day, each startup contemplates all possibilities before making any decision.

Reasons which are a roadblock for the combined entity

Earlier in this article, some of the failed M&As were mentioned. Comprehending the reasons and background of the deal, the following reasons should be factored in before the M&A announcement or completing the M&A:

Educate the employees about M&A: Employees are a resource for any organisation; the combined efforts of the entrepreneur and the employees lead to a desired outcome. Hence, it is prudent to educate the employees about the need for the deal, the outcome of the deal, their position post-deal and most importantly, assurance about a bright future.
Cultural difference: Many of the combined entities failed to perform because of cultural issues, which may be due to language barriers, organisational structure, or maybe the way of working.
Financial due diligence: Listed companies and larger companies employ independent auditors and are transparent in their conduct. However, the same may not be true for startups; a similar scenario was observed in the HP and Autonomy deal. Embezzlement of company funds, inflated sales and dubious bills are some of the common anomalies observed.
Regulator or government policies/ regulations: Few deals took time to complete because of government regulations. It is best to check regulations or hire domain experts before a handshake or public announcement.
Technological difference: All companies have their own preferences when selecting technology for the organisation. This is specifically true with software development companies, as the market is flooded with various computer languages like JAVA, Python, Scala, Ruby, etc. Sprint and Nextel communication used different technological platforms and never witnessed alignment between them.
Big fat valuation: In some cases, deals were signed at inflated valuations, which led to financial instability post-deal. Losses are balanced by increasing product and service rates, cutting employee expenses or cutting marketing expenses. The end result is not in favour of the new company. Industries believe a similar situation is happening with Elon Musk’s acquisition of Twitter. However, time will tell the outcome of the deal.

Conclusion

This industry has witnessed unprecedented growth and fierce competition in the last decade. A similar trend is anticipated in the coming years. Artificial intelligence may become a dominant technological advancement in the coming years. Hi-tech companies need to be agile and adaptive; otherwise, sooner or later, they will perish. One way for these companies to grow is through mergers and acquisitions (M&A).

M&A activity in the tech sector is on the rise, and the coming years may witness a better trend than now. M&A allows companies to reach economies of scale, exploit new markets, acquire a new customer base, and develop new product and service offerings. Some of the most successful M&A in technological spaces are:

Google’s acquisition of Fitbit in 2020
Apple’s acquisition of Beats by Dyre in 2014
Google’s acquisition of Nest in 2011
Walmart’s acquisition of Jet.com in 2016
Cisco’s acquisition of AppDynamics in 2017 transformed the entire company from hardware to software and service provider.

A list of successful M&As will go on. Not all M&As provide fruitful results, and there are some risks associated with the M&A. It is prudent to remember the goal of the M&A and the outcome anticipated. Finally, any M&A must have realistic expectations and proper due diligence before proceeding with the M&A.

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.

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An overview of social engineering attacks and how to avoid them

By

Vanshika Kapoor

-

November 5, 2023

0

This article has been written by Anwar Bhikan Shaikh, pursuing a Diploma in Law Firm Practice: Research, Drafting, Briefing and Client Management from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Introduction

Social engineering attacks are growing day by day in today’s era of technology. Any malicious security threats that happen in the world of the internet with the help of any devices like a PC, laptop, mobile, telephone, etc. are part of social engineering attacks. People with a lack of technological knowledge are mostly the victims of social engineering attacks.

To understand how to prevent social engineering attacks, we first need to understand what a social engineering attack is and what the types of social engineering are. Then we can better understand how to prevent social engineering attacks. Social engineering attacks can be of various types and as time passes, new ways of social engineering attacks are invented by scammers.

What are social engineering attacks

Any malicious or manipulative activity that is done by any outsider or unauthorised person or scammer by breaching security and the scammer gets access to the crucial information of any person. Such information is used to manipulate the data to blackmail another person / business or organisation. These kinds of activities are a threat to businesses and / person in the online world. By getting such access to the information by the scammer, the victim suffers a huge loss, which can be loss of data, theft of money online from bank account, etc.

Every person who has access to the internet shall use the internet wisely so that they do not become the victim of a social engineering attack.

Types of social engineering attacks

Types of social engineering attacks are:

Phishing: This is an attack that is done by the scammer with the help of social media, SMS, email, and hyperlinks. At the latest, sometimes the attacks are done with the help of PDF files. Attackers target their prey and with the help of their tactics and other tricks, they try to fetch confidential data from the victim by breaching the victim’s trust by spoofing a reputable and well known company or person. In such a way, an attacker pretends to be a well known person or company by using the original company’s logo, signature, images, sign or by making similar websites or email IDs. In such cases, the victim, without verifying the email, website, etc., tries to access it and feed the confidential data. Then the attacker takes advantage of it.

Prevention: such phishing attacks can be avoided, and for that, one needs to follow or keep certain things always in mind. Whenever any person falsely claims that they have noticed any suspicious activity or that login attempts are happening, there are high chances of phishing attacks and accordingly, immediate precautionary action shall be taken.

Baiting and quid pro quo attack: Under baiting, the scammer provides useful information to the user or targeted victim. Here, the scammers pretend to help them with some useful information, like software updates or information about their infected USB tool. The Quid Pro Quo Attack is similar to baiting, but in this attack, the scammer promises to perform an activity that will be beneficial to the victim. To gain this beneficial action, the victims are required to perform some task or action

Some examples of baiting and quid pro quo attacks are below:

The attackers call the firm or company extension and say that they are calling from their IT department and ask the victim if they need any support or have any technical issues, so in such a way they hunt for the prey.
Sometimes you see some great opportunities online, like offers and deals, and you just need to download some kind of file. Those are also kinds of Quid Pro Quo attacks.

Pretexting: This is a kind of attack where scammers approach the victim with fake identity to influence their target to provide them with sensitive information like Bank details, Login credentials, etc. The scammer here pretends to be an external IT service provider and once the scammer gains the trust of the victim, they can easily get sensitive information from them.

Some signs of pretexting are below:

You receive a message from the CEO of a particular company or your bank or it can be from anywhere, claiming that this message is from the CEO and we need your personal information immediately. The CEO cannot wait as long as he is in a meeting, so do not hurry in providing any information in such a scenario.
Scammers may try to build rapport with the victim and gain their trust by asking simple questions like, Are you available now?
Victims receive a suspicious message from scammers asking for personal details like date of birth, bank account number, credit or debit card number, etc.

Tailgating: This is an attack where attackers behave like an authorised person and follow a legitimate user into the security facility or system by piggybacking on the user access, such as a data centre or the place where all the data is stored in the server room. Hence, once the scammer enters these areas, he gets access to crucial information.

Watering hole attack: In this attack, the attacker hacks a legitimate website and leaves or injects a certain kind of malicious code on those websites. Whenever any individual or specific group of people frequently keep visiting such a website, such as an industry specific forum or news site, which then leads anyone who visits the site to have their computer or other device infected with a virus or malware.

Spear phishing: Spear phishing is a more systematically and very well planned targeted form of phishing that involves gathering information and conducting research on targeted victim, individual or organisation. They gather the information to create highly personalised, fake and convincing emails. For victims, these emails seem like genuine emails coming from their co-worker, manager, or superior and also in the name of the organisation, which makes them more difficult to identify or detect.

Here, we understand what a social engineering attack is and what the different kinds of social engineering attacks are. Now we will see how to avoid social engineering attacks.

Methods to avoid social engineering attacks

Following are some of the methods to avoid social engineering attacks:

Greed: First, don’t be greedy for anything, not only in the real world but also in the online world. Anything means free coupons online, free gifts, bumper offers, etc. This is a common pattern of attack which scammers use; in return, they will ask you to provide some common details like your Date of Birth, Phone Number, Company where you work, etc. Remember, nothing comes for free and there are always some hidden charges that you have to pay sooner or later.

Empathy: Whenever anyone for no reason, offers you some kind of help in your work or tries to be your saviour, don’t accept their offer. In such a scenario, the scammers obtain certain information from you in the name of help and later on, collectively, all the data is put together so that they can achieve their purpose.

Urgency: This is a very common attack where the scammer takes advantage of your real time position or situation where you are not in your workplace or office, such as driving, eating, sleeping, etc. Here, the scammer contacts you and pretends to be anyone whom you trust and they ask for certain important information from you and say that the CEO needs this information and he is in the meeting right now so kindly send such documents or provide the details. It is always better not to respond to anything that comes in a hurry or on an urgent basis. First, verify the case and then help them with whatever information they need if the case is genuine.

Fear: This scam happens when victims are put under fear or pressure by the scammers. The targeted victims are scared in such a way that they take immediate actions in fear without thinking, like if victims have fear of losing money or they are scared that their computer or other devices are infected by a virus. So under such a situation, the victim shall not panic and should not take any action without critical thinking or the help of any known and trustworthy expert.

Keep systems and software up to date: The users shall keep the systems and software of their devices up to date. Timely update the antivirus software and sometimes, if required, also update the devices, like replacing the old PC or laptop, etc., with the new one, which not only has the software upgrade but also the hardware upgrade.

Authenticating and proofing the identity: To prevent the impersonation of legitimate users, there shall be proper verification of users with the help of biometric data, two factor authentication, ID verification, and multi-factor authentication, which helps to prevent attackers from using the stolen credentials.

Following are some of the basic and easy practical steps to prevent social engineering attacks:

Always be cautious while replying to any message. Verify the authenticity of the message and reply.
If there is any request for sensitive information like a user ID or password, do not respond until you are sure of its genuineness.
Secure devices by installing the latest Anti-Virus software, email filters, firewalls, etc., and also keep updating the system from time to time.
Set your spam filter to a high security level.
Avoid or reject unsolicited requests for help or offers of help.

Conclusion

The social engineering attack is carried out after the attackers have figured out how to take advantage of the victims’ knowledge. So to prevent such attacks the users shall be updated with regular, updated knowledge related to social engineering attacks and there shall be the use of updated software and hardware on a timely basis.

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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All about HDFC Ltd and HDFC bank merger

By

Sneha Mahawar

-

November 4, 2023

0

This article has been written by Shivam Agrawal pursuing Remote freelancing and profile building program and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

HDFC Ltd. and HDFC Bank began their operations in 2014. An existing agreement of sale of home loans binds them, whereby HDFC Ltd. is the seller of a portion of its home loans and HDFC Bank is the buyer/purchaser. Such home loans are entitled to be sold every quarter.

In April 2022, the Board of Housing Finance Firm Housing Development Finance Corporation Limited (HDFC Ltd.) approved the merger of HDFC Bank and its subsidiaries. This announcement led to a rise in the share prices of both HDFC Bank Ltd. and HDFC Ltd. by Rs 1650 and Rs 2680, respectively.

The completion of approvals and transactions of statutory authorities, regulations, shareholders, and creditors under the applicable laws is yet to be completed as a result of the merger. Due to the complexity of regulatory permissions, 15 to 18 months were anticipated to be needed to complete this merger deal.

Brief details of the merger

This merger has major implications for the financial sector because of its transactional strategy. HDFC Ltd. will be merged with India’s largest private bank. The former has assets under management (AUM) worth 5.3 trillion and a market cap of Rs. 4.45 trillion and the latter has a market cap of Rs. 8.35 trillion. After the merger, HDFC Bank will have a net worth of Rs. 3.3 trillion and will have distribution leverage in urban, semi-urban, and rural areas. The shareholders of the Housing Corporation (HDFC Ltd.) will have ownership of 41% of the bank.

Benefits of this merger

The benefits of this merger are:

The merger will help reduce the proportion of unsecured loans provided by HDFC Bank.
The merger will be useful and will benefit both HDFC Ltd. and HDFC Bank. The combination of both will strengthen the bank due to the addition of the dominant position of the former in the sector of housing finance. It will further improve the scalability, distribution, and cross-selling of banking and housing finance products.
The share prices have increased since this merger was announced. This clearly shows that the public is interested in this merger. Ultimately, it will help earn profits for the company.
In 2018, the RBI pushed non-banking financial companies (NBFC) to operate as banks due to the Infrastructure Leasing and Financial Services (IL&FS) crisis. This merger will therefore give it an advantage over the increasing competition.
NBFCs require a new sales turnover of 50 crores every year, which becomes a challenge. Through this merger, HDFC Bank’s housing loan portfolio will be strengthened. The bank will also gain a strong footing in the real estate market, which provides low-risk and secured assets.
This merger will result in increased scalability, standard and comprehensive product offerings, and resiliency in the balance sheet, revenue, and operating and underwriting opportunities.
The home loan percentage of HDFC Bank increased to 33%, which was 11% earlier. This would result in the bank being placed in second place among the largest banks in India.

Optimisation of costs due to merger

The merger will result in reductions in loan pricing costs, operation costs, and the operation costs of establishments. However, this will take 4-5 years. As a startup, the initial 2-3 years might be a bit of a struggle to balance the finances in view of the low margin on housing finance. The merger will also lead to an increase in statutory reserves.

The demand for credit will drastically increase in the coming years. The merger of NBFCs and banks will provide surplus credit and benefits to both. This will further result in the companies getting cheaper franchises and funds.

Merger benefits to shareholders

The shareholders of HDFC Bank will get bank trade premiums as a result of this merger. The asset quality will be further increased and protected due to the massive loan base of HDFC Ltd. The merger will additionally increase scalability and lower the cost of funds, which will encourage a splurge in the entry of mortgage businesses. The process of loan servicing will be transferred to the bank, and the existing shareholders will benefit from the increased share prices. The existing shareholders post-merger will have 41% ownership of the merged entity. Every shareholder of HFDC Ltd. after the merger will get 42 shares in HDFC Bank. He will get such shares for every 25 shares in HDFC Ltd. held by him.

Depositors view of this merger

There are two types of fixed deposits in the Housing Finance Corporation, i.e. HDFC Ltd. They are:

Automatic renewal
Non-automatic renewal

In automatic renewal, the fixed deposits are automatically renewed on the date of maturity for the same period of time. The rate of interest depends on the kind chosen, whether fixed or floating. On the other hand, in non-automatic renewal, the amount on maturity is paid to the payee’s bank account.

Changes that occur in lieu of merger

Individuals having an automatic renewable fixed deposit with the Housing Finance Corporation, i.e., HDFC Ltd., can withdraw or renew their fixed deposits with the merged HDFC Bank at the available rate of interest. It is important to note that the rate of interest offered by HDFC Bank is lower than that of the corporation.

In case a person invests in fixed deposits for a period and tenure of 66 months and the principal amount is below Rs. 2 crore, the corporation, i.e., HDFC Ltd., offers the rate of interest at 6.55%. On the other hand, HDFC Bank offers a 5.6% rate of interest for the same term and tenure. For senior citizens investing in fixed deposits for a 66 months tenure, where the principal amount is below Rs. 2 crore, the bank offers a 6.80% rate of interest and a 6.35% rate of interest. The corporation offers a 0.05% rate of interest over the existing interest rate in case an individual renews his fixed deposit through online automatic renewal.

Thus, HDFC Bank offers a lower rate of interest as compared to the Corporation vis-a-vis HDFC Ltd. However, in terms of safety concerns, the bank provides better safety for deposits and interests under the DIGC (Deposits Insurance and Credit Guarantee Corporation).

Borrowers view of this merger

In respect of the borrowers, it will not impact the terms and conditions of the existing loans taken by the borrowers from the corporation. In the event that a person takes a loan from the corporation, the terms and conditions of the loan will remain as they are. Post-merger of the corporation and the bank, there will be a revision in the rate of interest on home loans. The

The bank gives home loans at a 6.70% rate of interest to those with a credit score of 750 and 6.80% to 7.30% to those with a credit score below the threshold limit. For borrowers who are women, the rate of interest is 6.70% provided by the bank to those with a credit score of 750 and 6.75% to 7.25% for those with a credit score below the threshold.

Once the merger is completely done, HDFC Bank might release a notification to customers for mandatory updates to their KYC and NACH. It will result in auto-debit installments of EMIs on home loans.

Merged entity in the Morgan Stanley Capital International (MSCI) index

The Morgan Stanley Capital International India Index is an indicator of the proper and sound functioning of the Indian capital market. Foreign investors use the MSCI Index India to invest their funds in the international market. Through this MSCI Index, they get to learn about the stable and volatile nature of the share prices in detail. In simple words, this index helps foreign investors invest in Indian shares directly, depending on the weight of stocks on the index. It ensures the total number of funds in which a foreign investor may invest. The infrastructural sector of India has extremely strong opportunities for growth in the next few decades, and it will ultimately help in the growth and development of the financial sector as well. The housing sector will mostly benefit. With the growth in infrastructure and finance, the merger entities will also experience massive growth in positive aspects. Thus, the MSCI Index will include the merged entities.

Conclusion

Through this article, we learned everything about why a merger is happening between HDFC Bank and HDFC Ltd. in the first place and its benefits, impact on shareholders, depositors, and borrowers, along with financial benefits leading to cost optimisation. We also learned about the certainty of the merged entities in the MSCI Index. We additionally witnessed the impact of mergers on companies and the benefits arising therefrom. The merger will attain success through market growth for the company, shareholder interest, and overall growth.

References

https://www.hdfcbank.com/personal/borrow/popular-loans/home-loan
https://portal.hdfc.com/campaign/new?utm_agency=Metier&utm_source=Google&loantype=NEW&utm_medium=Desktop&utm_campaign=SEM&gclid=Cj0KCQjwma6TBhDIARIsAOKuANwodek_VUMF0pUhpu0TxK7 Fv1bVpYI5GVfy8zvm1Ynb0vTKHFY88g0aArH4EALw_wcB
https://www.livemint.com/market/stock-market-news/hdfc-hdfc-bankshares-attractively-priced-after-15-rally-post-merger-announcement-1 1649047262666.html
https://www.livemint.com/market/stock-market-news/hdfc-ltd-hits-rs5-trillion-in-market-cap-11613113015740.html
https://www.bloombergquint.com/business/biz-hdfc-profit https://www.hdfc.com/sites/default/files/2022-04/SE_Intimation_Reg_ 30_040422.pdf
https://www.hdfcbank.com/personal/resources/rates

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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All you need to know about quasi-community property in California : an overview

By

Sneha Mahawar

-

November 4, 2023

0

This article has been written by Priyanka Jain pursuing Crack California Bar Examination – Test Prep Course and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

During the “dissolution of marriage” in the State of California, several issues are to be settled, like child custody, visitation, and division of movable as well as immovable property. There is always an equitable distribution of assets between the splitting couple. The division of assets is a huge task in such dissolutions.

In the state of California, the concept of quasi-community property is a legal framework that governs the division of property in certain situations. California is one of nine states in the U.S. among Arizona, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin that follow the community property system, where marital property is generally considered equally owned by both spouses. However, quasi-community comes into play when couples move to California from another state that does not follow the community property rules, like Florida, which is an equitable distribution state.

Key principles and characteristics of community property

Key principles and characteristics of community property are:

Equal ownership: Community property is based on the principle of equal ownership between spouses. Any property acquired during the marriage is considered to be jointly owned by both spouses, regardless of who earned or acquired it.
Marital property: Community property includes all assets and debts acquired by either spouse during the marriage, except for certain exclusions such as gifts and inheritances received by only one spouse.
50/50 division: In the event of divorce or legal separation, community property is typically divided equally between the spouses. Each spouse is entitled to a 50% share of the community property’s value.
Management and control: Both spouses have equal management and control over community property. They have the right to use, sell, or dispose of community property, but certain transactions may require the consent of both spouses.
Presumption of community property: In community property states like California, there is a presumption that all property acquired during the marriage is community property unless proven otherwise.
Shared responsibility for debts: Just as assets are shared, both spouses are equally responsible for debts incurred during the marriage. Creditors can seek repayment from either spouse for community debts.
Death and inheritance: Upon the death of one spouse, their 50% share of community property will generally pass to the surviving spouse unless stated otherwise in a will or other estate planning documents.
Tax implications: Community property may have tax implications, especially in terms of income, capital gains, and estate taxes. It is important to consider these factors when managing and dividing community property.
Legal protections: Community property laws provide legal protections for spouses during divorce or separation, ensuring fair and equitable distribution of assets and debts acquired during the marriage.

What is quasi-community property

As per California Family Code § 125, quasi-community means all real or personal property, wherever situated, acquired in any of the following ways:

Either spouse, while domiciled elsewhere, would have been community property if the spouse who acquired the property had been domiciled in California at the time of its acquisition.
In exchange for real or personal property, wherever situated, that would have been community property if the spouse who acquired the exchanged property had been domiciled in California at the time of its acquisition

It means quasi-community property refers to any property acquired by either spouse while domiciled outside California, which would have been considered community property had they been domiciled in California at the time of acquisition. Also, property obtained in exchange for real or personal property, which would have been community property under the laws of California, is also quasi-community property.

Quasi-community property arises in specific circumstances where property that would otherwise be classified as separate property under California law becomes subject to community property principles. The following are the typical circumstances under which quasi-community property arises:

Change of domicile: When a couple relocates from a non-community property state to California, any property they bring with them is generally treated as quasi-community property. This means that property acquired before moving to California, which would have been considered separate property in the previous state, becomes subject to the community property rules of California.
Temporary residency: If a couple temporarily resides in a non-community property state but maintains a permanent residence in California, any property acquired during the temporary residency may be classified as quasi-community property. This applies when the couple intends to return to California after the temporary period.
Property tracing: In some cases, property that was initially separate may become mixed with community property to the extent that it cannot be easily identified or separated. In such situations, the mixed property may be considered quasi-community property, subject to division upon divorce or separation.
Transmutation: When spouses explicitly change the character of separate property by agreement, it can result in the creation of quasi-community property. For example, if one spouse transfers their separate property into joint ownership with the other spouse, it may be treated as quasi-community property.

In a nutshell, quasi-community property in California refers to assets acquired by a married couple while living in a non-community property state, which would have been considered community property if acquired while residing in California. When a couple divorces or separates in California, these assets are subject to division according to community property laws, with the goal of achieving a fair and equitable distribution.

To constitutionally apply the California quasi-community property statute to parties domiciled elsewhere, two conditions must be met (Addison vs. Addison (1965)) and In re Marriage of Roesch (1978):

Both parties must have changed their domicile to California, and
Subsequent to the change of domicile, the spouses must seek legal alteration of their marital status in California.

Thus , when one party does not move to California, the court does not have jurisdiction over out-of-state property that was separate property in the other state.

Key differences between community property and quasi-community property in California

Key differences between community property and quasi-community property in California are as follows:

Acquisition

Community property is property acquired during the marriage or domestic partnership, regardless of which spouse earned or acquired it. Quasi-community property, on the other hand, includes property acquired before moving to California or during temporary residency in a non-community property state that would have been community property if acquired in California.

Division upon divorce or separation

Community property is subject to equal division between the spouses upon divorce or legal separation, where each spouse typically receives a 50% share of the community property. Quasi-community property, similarly, is subject to division, but only between the parties who would have been considered spouses had the property been acquired in California.

Presumption

There is a legal presumption that all property acquired during a marriage or domestic partnership is community property, unless proven otherwise. Quasi-community property is not presumed; instead, it arises from specific circumstances, such as a change of domicile or temporary residency in a non-community property state.

Management and control

Both spouses have equal management and control over community property. However, with quasi-community property, only the spouse who would have been entitled to the property if it were acquired in California has management and control over that property.

Estate planning and inheritance

Upon the death of a spouse, their 50% share of community property typically passes to the surviving spouse. In the case of quasi-community property, the surviving spouse retains their ownership rights over the property they would have been entitled to if the property were acquired in California.

Legal treatment

While community property laws are well-established in California, quasi-community property laws are applied in specific circumstances to ensure a fair and equitable distribution of property acquired outside the state but with a connection to California.

Understanding quasi-community property in California is significant for individuals who have moved to the state from non-community property jurisdictions or who have acquired property during temporary residencies in such states. It ensures fair treatment and division of assets acquired outside of California but with a connection to the state.

Concluding thoughts over quasi-community property

Quasi-community property broadens the scope of Californian property laws. This legal provision promotes fairness and consistency in the treatment of property, ensuring that assets acquired elsewhere are treated similarly to community property when brought into California, thus upholding the principles of marital property rights in a more inclusive manner.

By comprehending the concept of quasi-community property, individuals can:

Protect their rights: Knowledge of quasi-community property allows individuals to understand how property acquired before moving to California or during temporary residencies may be classified and divided in the event of divorce or separation. This knowledge empowers them to protect their interests and make informed decisions regarding property management and division.
Make informed financial decisions: Being aware of the implications of quasi-community property enables individuals to make informed financial decisions during marriage or domestic partnerships. It helps them understand the potential impact on their assets and debts and the potential division that may occur in the future.
Planning for asset distribution: Understanding quasi-community property is essential for estate planning and inheritance purposes. Individuals can make appropriate arrangements to ensure their assets are distributed according to their wishes and consider the potential impact on their heirs.
Seek legal advice: Familiarity with quasi-community property laws allows individuals to engage with legal professionals more effectively. They can communicate their specific circumstances and seek tailored advice regarding property rights, division, and other related matters.

Conclusion

Overall, comprehending quasi-community property in California provides individuals with a clearer understanding of their property rights and obligations. It empowers them to navigate legal processes, protect their assets, and make informed decisions, ultimately ensuring fair treatment and equitable distribution in accordance with California family law.

In a nutshell, quasi-community property in California refers to assets acquired by a married couple while living in a non-community property state, which would have been considered community property if acquired while residing in California. When a couple divorces or separates in California, these assets are subject to division according to community property laws, with the goal of achieving a fair and equitable distribution.

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.

An analysis of trademark infringement by comparative advertising

By

Sneha Mahawar

-

November 3, 2023

0

This article has been written by Pranali Shetye pursuing Diploma in Intellectual Property, Media and Entertainment Laws and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Advertising is an important tool for businesses to create awareness about their products, services and brand. Various marketing and advertising techniques are adopted by these businesses in order to reach the maximum target audiences with the intention of influencing their purchasing decisions. Marketing and advertising are continuous processes. In order to ensure that their products, services, and brands do not fade away from consumer’s minds, these businesses come up with unique marketing and advertising strategies. Trademarks ensure that their products or services are identifiable and indicate their quality and source to the company. This article aims to discuss comparative advertising and analyse trademark infringement due to such advertising.

Before discussing the concept of comparative advertising, a brief understanding of the term will be helpful. It is usually a paid communication by the promoters of the product, service, or brand. Advertising aims to inform, influence, stimulate sales, create a brand and/or product loyalty and gain a competitive advantage. Advertising plays an important role in influencing consumers’ purchasing decisions. Frequently, it can be seen that in order to gain a competitive edge, competitors adopt a comparative advertising strategy.

In comparative advertising, an attempt is made to showcase the company’s product, service, or brand as having superior quality or value than that of the competitors existing in the market. Comparative advertising is one of the popular forms of advertising adopted to compare the products and services provided by the advertiser to those of their competitors. In comparative advertising, there can be an explicit or implicit reference to the competitors of the brand advertised.

Purpose of comparative advertising

To make the company’s product or service stand out in a saturated marketplace,
To increase public awareness of the product and services through honest comparison,
To increase the market share of the advertiser’s brand, and
To promote the advertiser’s brand.

Concept of trademark

Trademarks can be anything that identifies the source of goods and services. It distinguishes the source of goods and services from competitors in the market. Trademark law prohibits the use of third-party trademarks, which is likely to cause confusion for consumers about the original source of products and services.

The trademark, while identifying the product of one enterprise from the other, also reflects the brand value. A brand identity gives preference in the marketplace over other brands and it becomes necessary to have legal protection under trademarks to avoid others from usurping the name and causing confusion. The trademark gives brands an additional edge, as consumers are willing to pay extra for the products bearing their trademarks. A trademark grants exclusive rights to the owner over the use of a brand identifier as well as the power to bar others from creating confusion or unfair competition through lawsuits. A trademark gives protection against the misuse of the brand. Trademarks are used to restrict others from using the mark as well as to prevent them from creating similar marks likely to cause confusion among customers.

Importance of trademark in marketing

A trademark is of great importance for the protection of brand identity. As mentioned earlier, the trademark enables the consumer to identify the source of the goods and services from various competitors. The products and services provided under the name create a brand identity over time that enhances the brand value. A trademark provides protection to the company against unfair competition in the form of representation or passing off one’s goods as those of its competitors. The presence of a trademark benefits consumers as it confirms the quality and prevents any other form of adulteration or inferior quality.

Infringement of trademark

The object of the trademark law is to grant an exclusive right to the registered proprietor to use the mark on their goods or services, prevent others from making unauthorised use, and take legal action for trademark infringement. A registered trademark generates a reputation among customers with respect to the standard quality and value of goods or services. The trademark enables consumers to differentiate the product and services from those of their competitors.

The trademark law confers various rights upon the registered proprietor of the trademark. To take action against the infringement of the trademark is one such right. Section 29 of the Trademark Act of 1999 defines the infringement of a trademark. Trademark law provides protection when any advertisement takes an unfair advantage or uses dishonest practises that are detrimental to the trademark.

Provisions under trademark law governing advertising

Section 29(8) of the Trademarks Act deals with the infringement of trademarks in advertising. It states that if an advertisement takes unfair advantage of the trademark, uses dishonest practises, is detrimental to the trademark’s distinctive character, and is against the trademark’s reputation, the advertisement is considered a trademark infringement.

Does comparative advertising amount to trademark infringement

Advertising has various benefits for the company as well as the consumers. However, it is important to note that certain forms of advertising can have severe implications for the company. Comparative advertising is one such double edge sword. Making false claims against a competitor’s products or services is not permissible under the law.

Disparagement means “a derogatory comparison of one thing with another; the act or an instance of castigating or detracting from the reputation of, especially unfairly or untruly; a false and injurious statement that discredits or detracts from the reputation of another’s property, product, or business.”

A statement about a competitor’s goods or services that is untrue or misleading and is made to influence or tend to influence the public not to buy is a disparagement of goods.

It is to be ensured that comparative advertising is not with the intent to mislead consumers. Advertising that is in honest practise and does not cause detriment to the distinctive character or repute of the trademark will not amount to infringement.

When does comparative advertising amount to trademark infringement

Companies and businesses are allowed to make claims that their products or services are superior to any other competitors available in the market. If such statements are untrue, they still won’t amount to disparagement. However, one is restrained from claiming that the goods or services of the competitors are inferior in comparison. In order to examine whether a statement or claim made infringes the trademark or disparages the goods of other competitors, it depends on the facts and circumstances of each case. It is essential to analyse if the advertising belittles, discredits, or defames the reputation of a competitor’s trademark or product.

To put it simply, an exaggerated statement in an advertisement can be made to promote goods. But if any statement is made to disparage or defame the products of the other competitors, it will give rise to the cause of action to institute proceedings against the advertiser company. Today, advertising is done on multiple platforms, including (but not limited to) social media platforms, gaming platforms, OTT platforms, various third-party mobile applications, and websites. Advertising on these platforms is repetitive and consistent; it leaves a permanent impression on the minds of the viewers. In turn, it influences their buying decision. Hence, the following factors are to be considered when deciding the disparagement of a trademark by comparative advertising:

Manner of the commercial- If the manner is just to show that the company’s product is superior without defaming or derogating the competitor’s products, it does not amount to infringement of a trademark. However, if the manner is defaming, derogatory or ridiculing the product of the competitors, it will give rise to a cause of action against the disparagement of the product.

The storyline of the commercial and the message sought to be conveyed by the commercial- From the above factors, the ‘manner of the commercial’ is crucial. As the purpose of an advertisement is to create awareness about a product or service and influence consumer purchasing decisions, consideration of the impression made by such an advertisement on its target consumers is necessary. In such a situation, if any reasonable person perceives that the impression presented in the advertisement is derogatory, defamatory, or disparaging for the goods and services of the competitors, the existence of other simple non-disparaging meanings will be taken into consideration. The degree of disparagement must be such that it would amount to defamation.

Without direct reference to the products of the competitors but only generic reference to the entire class of products, this can also amount to disparagement. Generic disparagement is also prohibited. It is when there is no specific reference to the competitor’s product. The court held that a class or genre of a product cannot be disparaged and raises a defence for lack of specific identification or reference of the product.

In order to establish that comparative advertising amounts to disparagement, the following is necessary:

Statements or claims made in the advertisement are false or misleading.
Such a statement or claim has the potential to deceive a substantial number of prospective consumers.
The deception is likely to influence the consumer’s purchasing decisions.

Conclusion

Comparative advertising, making honest claims against the competitor’s products, will provide consumers with the opportunity to opt for a better product from the available range of similar products. It also results in healthy competition in the market. One must note that it is permitted to declare that the goods or services are the best in the world or are superior to the competitor’s, even when it is untrue, by comparing the advantages of both products. However, while making such a declaration, one cannot say that the competitor’s goods are bad. It amounts to slander of goods or defamation of the competitor’s and action lies for recovery of damages. The order of injunction restraining repetition of such defamation is granted.

References

https://www.wipo.int/trademarks/en/
https://www.upcounsel.com/trademark-vs-brand
https://www.britannica.com/topic/trademark
https://www.jetir.org/papers/JETIR2302325.pdf
https://blog.ipleaders.in/analysis-infringement-trademark-comparative-advertising
V. K. Ahuja, Law Relating to Intellectual Property Rights Third Edition (Reprint 2021), Lexis Nexis, p. 339

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Section 409 IPC punishment

By

Vanshika Kapoor

-

November 3, 2023

0

This article has been written by Vishwendra Prashan. This article discusses the aggravated form of a criminal breach of trust, i.e., Section 409 of the IPC, and the punishment. This article also highlights the necessary conditions of this Section and its leading judgments.

It has been published by Rachit Garg.

Table of Contents

Introduction

Let’s assume the State Government entrusted Rs. 15 crores to a revenue officer. The Government directed him to transfer those funds to a contractor for constructing a government school. The contractor came to the revenue officer to take those funds. The revenue officer told him to sign some documents for completing formalities. But, he did not transfer those funds to the contractor and misappropriated those funds. Now, a question arises as to under which provision the revenue officer would be liable. Let’s find the answer to this question through this article.

Chapter XVII of the Indian Penal Code 1860 contains provisions regarding offences against properties. This Chapter includes Sections 378 to 462. Among these, Sections 405 to 409 deal with criminal breach of trust.

Section 405 defines criminal breach of trust. As per the Section, a person is said to have committed a criminal breach of trust when the following basic ingredients are proved in a Court of law:

If he is entrusted with another’s property or has dominance over another’s property; and
He must have dishonestly misappropriated that property or converted it to his use; or
He must have dishonestly used or disposed of the property in violation of directions prescribed under the law; or
He must have entered into a legal contract that has breached the trust; or
He must have intentionally made other people suffer to do so.

Let’s consider that John, going on a journey, entrusts his furniture to Peter under a contract that he (Peter) must return it on payment of a stipulated sum for the warehouse room. Peter dishonestly sells the furniture. He has committed a criminal breach of trust.

However, Section 409 is an aggravated form of criminal breach of trust. The Chapter XVII of IPC provides such aggravated form. This Section deals with the criminal breach of trust by public servants, bankers, merchants, factors, brokers, attorneys, and agents.

What is the crime defined under Section 409 IPC

When public servants, bankers, merchants, factors, brokers, attorneys, and agents, being entrusted with properties or with dominion over properties, commit criminal breaches of trust in respect of those properties, they are liable under Section 409 IPC. These persons have great powers of control over the properties entrusted to them. However, they are legally bound to perform their duties in good faith. If they fail to do so, they are liable due to a breach of trust.

Illustrations:

‘A’ paid Rs 20,000 to a postmaster ‘X’ for a money order. ‘X’ misappropriated this money. He is liable under Section 409 of the IPC.
A merchant ‘Z’ had to deliver goods to ‘A’. He took money from ‘A’. But, he did not deliver the goods. He was liable under this Section.
A person ‘X’ went to a bank to transfer money to ‘C’. ‘X’ gave a cheque of Rs 2 Lakhs to a banker ‘Y’. He told ‘X’ that the bank server is down right now, so he would transfer the amount later. He also told ‘X’ to sign on the cheque. However, ‘X’ signed on the cheque but ‘Y’ transferred the amount to his own bank account.
‘X’ was an agent of ‘A’. ‘X’ was in Mumbai, while ‘A’ was in Kolkata. There was a contract between them that ‘X’ would invest A’s money according to his direction. ‘A’ transferred Rs. 20 Lakhs to ‘X’ for investing in his company. But, ‘X’ dishonestly disobeyed ‘A’s direction, and he invested that money in his own business. ‘X’ was liable under this Section.

Essentials of crime under Section 409 IPC

These are the essentials of the crime under this Section:

The accused must be public servants, bankers, agents, brokers, factors, or attorneys;
they must have entrustment of the property;
they must have mens rea; and
they must have committed a breach of trust regarding the property entrusted.

These essentials are proven to make the accused liable under this Section.

In R. Sai Bharathi v. J. Jayalalitha (2004), a firm purchased the property of a Government company. The Chairman of the company was a partner (accused). He had no dominion over the property of the company. Moreover, there was no relationship of trustee and fiduciary between the Chairman and the company. The Chairman had no dominion over the property. The Supreme Court held that the accused was not liable under Section 409 IPC as there was no entrustment.

Public servants

Section 21 of the IPC defines the term ‘public servants’. According to this Section, the following persons are public servants:

Repealed by the Adaptation of Laws Order, 1950;
Every Commissioned Officer in Military, Naval or Air Forces;
Every Judge including any person empowered by law to discharge any adjudicatory functions;
Every officer of a Court of Justice, including a liquidator, receiver or commissioner, who investigates or reports on any matter of law or fact, or makes, authenticates, keeps any document, or takes charge or disposes of any property, or executes any judicial process, or administers any oath, or interprets, or preserves order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties;
Every juryman, assessor, or member of panchayat assisting a Court of Justice or public servant;
Every arbitrator or other person to whom matter is referred by any Court or any other competent public authority;
Every person who is empowered by law to place or keep any person in confinement;
Every Government officer whose duty is to prevent offences, to give information about offences, to bring offenders to justice, and to protect public health and safety;
Every officer who is empowered by the Government to carry out contracts in the name of the Government to carry out sale deeds or purchases, who will keep record of all authenticated documents, and who will prevent the infraction of law;
Every officer whose duty is to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;
Every person who is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;
Every person-

In the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
In the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in Section 617 of the Companies Act, 1956.

Bankers

They are the ones who receive money to be withdrawn again as the owners have occasion for it. The word ‘bankers’ includes cashiers or shroffs.

In the case of S. Jayaseelan v. State of SPF (2002), the cashier received repayment of loan instalments. He issued receipts and made entries in the passbook but did not show the repayments in the ledger books. The Madras High Court held that the cashier had dishonest intentions. This Court reduced his sentence from 2 years to 18 months because he had paid the amount back.

Merchants

They deal in the purchase and sale of goods. They especially import and export goods.

Agents

They are employed to do any act for another person or an entity. Moreover, they are also employed to represent a client in dealings with third parties. Agents are bound to exercise their authority under all lawful instructions. Their principals give them such instructions from time to time.

The trustee of a temple is an agent of the deity, and if he misappropriates temple jewels, he is guilty under Section 409.

The term ‘agents’ is not restricted to persons who carry on the profession of agents. The requirements of the Section would be satisfied if the person is an agent of another and another person entrusts him:

with property or;
with any dominion over the property.

Moreover, the entrustment must be related to his duties as an agent.

Brokers

They are agents employed to make bargains and contracts between other persons in trade, commerce, and navigation. In common parlance, they are agents employed by one party only to make a binding contract with another.

Factors

They are mercantile agents entrusted with the possession or control of goods, wares, or merchandise for sale on commission.

In the case of Pramod Parmeshwarlal Banka v. State of Maharashtra (2011), the complainant took a loan from the company against his shares. The company did not refund shares to him after the repayment of the loan. The complainant filed a complaint against four accused persons. He alleged that the accused persons had shares entrusted, so they are liable under Section 406 IPC read with Section 114 IPC. The Magistrate convicted only one accused (Vijay Agarwal) under Section 406 IPC and acquitted the remaining accused persons.

The complainant filed a revision petition against the order of the Magistrate in the Sessions Court. The Sessions Judge directed the Magistrate to prosecute all the offenders under Section 409 read with Section 34 IPC.

The offenders filed revision petitions before the Bombay High Court. The High Court observed that the Indian Penal Code has no provisions of vicarious liability on the part of the Managing Directors or the Directors when the accused is a company. Such liability would arise only when the statute has provisions for the same. The High Court observed that the order of the Magistrate was right because only Vijay Agarwal was involved in this case. The Court held that Vijay Agarwal was liable under Section 409 of the IPC. According to this Court, the charge under Section 409 was tenable even though the accused were not bankers or public servants but factors.

Attorneys

They are appointed by other persons to do something in their absence. Attorneys have the authority to act for another person.

Property

The definition in Section 409 of the IPC does mean that the property may be only movable.

Moreover, the Kerala High Court in Damodara Panicker v. State of Kerala (2019) held that both movable as well as immovable properties are the subject matters of criminal breach of trust.

Entrustment

The term “entrustment” means to hand over something in trust. In other words, one person hands over his property to another person. The other person must hold a position of trust.

However, this ingredient is the most important one because the absence of this ingredient will not lead to any offence under Section 409. Therefore, the prosecution must prove that there was some entrustment of property.

Entrustment may not always be expressed. It may be implied as well.

Dominion over the property

The term “dominion” means control over the property.

How is a criminal breach of trust different from criminal misappropriation of property

Criminal Breach of Trust	Criminal Misappropriation of Property
Sections 405 to 409 of the IPC deal with criminal breach of trust.	Section 403 of the Code deals with criminal misappropriation of property.
There are contractual relationships between the offenders and the owners regarding the properties.	There are no such contractual relationships.
The offenders obtain possession of the properties because of entrustment by the owners of the offenders.	The offenders obtain possession by casualties.
The offenders misappropriate the properties for their personal use.	The offenders dishonestly misappropriate the properties for their own use.
The properties may either be movable or immovable.	The properties are always movable.
Section 406 deals with the punishment for such an offence	Section 403 deals with punishment.
It is punishable with imprisonment up to 3 years, or with a fine, or both.	It is punishable with imprisonment up to 2 years, or with a fine, or both.

Punishment under Section 409 IPC

As per Section 409 of the IPC, if public servants, bankers, merchants, factors, attorneys, or agents commit a criminal breach of trust, they are punishable with the following:

Life imprisonment, or
Imprisonment of up to 10 years along with a fine.

As per the provisions of criminal breach of trust (Sections 405 to 409) in Chapter XVII of the Code, two circumstances may take place:

Acts of criminal breach of trust on the part of the persons who enjoy the special trust and are also in a position of authority (Section 409); and
Acts of criminal breach of trust done by any other person who may be a common person, carrier, clerk, or servant (Sections 406, 407, and 408).

However, the Indian legislature treats the first circumstance more harshly than the latter one. For example, in respect of public servants, the Courts provide much more stringent punishment in the form of life imprisonment or imprisonment of up to 10 years along with a fine. Public servants enjoy special status and trust in the eyes of the public as representatives of the government or government-owned enterprises. A breach of such trust makes punishment much more severe, as per Section 409.

In the case of Sudhir Shantilal Mehta v. C.B.I, (2009), the bank officials who allowed advance credits on banker’s cheques to a customer violating Departmental instructions acted in breach of the direction of the law. The officials had dominion over the money belonging to the bank. They dishonestly used that money to confer a benefit on the customer. Hence, the Court held that the officials were liable under Section 409 of the IPC.

In the case of Sadhupati Nageswara Rao v. State of Andhra Pradesh (2012), the appellant (an agent) was entrusted with the distribution of rice under the ‘Food for Work Scheme’ to the workers on the production of coupons. He misappropriated 67.65 quintals of rice. The SHO registered an FIR against the appellant under Sections 409 and 420 IPC. The Magistrate convicted him under Section 409 and not under Section 420 IPC. The Magistrate sentenced him to simple imprisonment for 6 months and a fine of Rs 1,000 only. The appellant filed an appeal before the Andhra Pradesh High Court against the order of the Magistrate. The High Court dismissed the appeal. Thereafter, he filed a Special Leave Petition before the Supreme Court to challenge the order of the High Court. His Council contended that the alleged offence occurred in 2002, and the Court may show some leniency on the sentence awarded by the Magistrate. The Supreme Court upheld the conviction as the evidence proved that there was entrustment of property to the accused. The Supreme Court also held that courts cannot show leniency when awarding sentences on the grounds of sympathy or delay. This rule especially applies where the accused has to distribute essential commodities under any Government schemes for the benefit of the public at large.

In the case of State of MP v. Prempal (1991), a post-master misappropriated money entrusted to him. The State contended that the post-master (accused) was liable under Section 409 IPC. The Magistrate acquitted the accused on the following grounds:

The accused returned the whole amount before being challenged.
He had given receipts for various sums deposited in the account.
He denied that he had made entries of deposit in the passbook of the depositor. So, there was no proof that the accused had received various sums.

The State challenged the acquittal by filing an appeal before the Madhya Pradesh High Court. The High Court held that his acquittal on those grounds was improper. The Court said that the accused had received the money. If public servants entrusted with government funds misappropriate those funds, a refund of the same would not absolve them of the offence. The High Court set aside the acquittal and convicted the accused under Section 409 IPC. The accused was sentenced to imprisonment till the rising of the Court and to pay a fine of Rs 300, in default to undergo rigorous imprisonment for 3 months.

In the case of Inder Sen Jain v. State of Punjab (1994), the accused was working as an assistant accountant in a company. He received certain recoveries on behalf of the company from a firm. But he did not credit them to the account of the said firm. The Learned Magistrate of First Class convicted the accused with a rigorous imprisonment of one and a half years under Section 409 IPC and a rigorous imprisonment of one and a half years under Section 477A IPC. The accused (appellant) challenged this conviction before the Additional Sessions Judge. He acquitted the appellant The State challenged this acquittal before the Punjab and Haryana High Court. The High Court held that the Additional Sessions Judge was wrong in his judgment because he ignored the evidence of the prosecution witnesses. The accused challenged the judgment of the High Court before the Supreme Court. However, the Supreme Court upheld the conviction, but considering the time factor and age of the accused, it reduced the sentence to six months of rigorous imprisonment under each count.

In the case of State of Himachal Pradesh v. Karanvir (2006), a prosecution witness deposited money with a postmaster for purchasing National Savings Certificates (NSCs). The prosecution witness had filled out all the required forms and received a receipt regarding the deposit. But he did not receive any NSCs even after a month. An inquiry was conducted regarding this matter. The postmaster (respondent) deposited money in the Post Office when he came to know about the inquiry. After lodging the FIR, the Chief Judicial Magistrate convicted the accused (postmaster) under Section 409 of the Code and sentenced him to undergo simple imprisonment for six months along with a fine of Rs 1000. The respondent filed an appeal before the Sessions Judge. The Sessions Judge dismissed the appeal. The respondent filed a revision petition before the Himachal Pradesh High Court. The High Court set aside the conviction as the prosecution could not prove the misappropriation. The State filed an appeal before the Supreme Court against the judgment of the High Court. The Supreme Court observed that the offence happened 15 years ago. Moreover, he deposited the misappropriated amount with interest even before filing the FIR. The Supreme Court held that the accused was punishable with a fine of Rs 4,000 apart from Rs 1,000 imposed by the Trial Court. Moreover, in default of the payment of the said amount, he would be punishable with simple imprisonment for three months.

Burden of proof

In the case of Shyam Lal v. State of Himachal Pradesh (2022), the Himachal Pradesh High Court has held that the prosecution must prove the following:

The accused had entrustment of property in the capacity of a public servant, and
he had committed a criminal breach of trust relating to that property.

Moreover, the burden is upon the accused to show that he used the property for the purpose for which it was entrusted to him. This is possible only in the following circumstances:

When the accused has admitted the fact of entrustment; or
when the prosecution has proved the fact of entrustment.

Liability of directors under Section 409 IPC

The directors of the companies are not only agents but also trustees of the companies’ assets that come into their hands. In other words, they have dominion and control over those assets. Thus, if they misappropriate those assets for their own use, they can come within the mischief of this Section.

In the case of Narindra Kumar Jain v. State of MP (1996), the manager of a rice mill caused the disappearance of 1500 quintals of paddy from a huge stock of the material entrusted to him. The Chief Judicial Magistrate acquitted the manager of the charges. The High Court convicted him under Section 409 IPC. The manager filed an appeal before the Supreme Court. The Supreme Court held that the accused was liable under Section.

Leading judgments

Bonela Swaminathan v. State of A.P. (2000)

In this case, the accused was convicted of misappropriating bank money. He was convicted under Sections 409 and 420 IPC and sentenced to rigorous imprisonment for one year. He remitted the entire amount to the bank.

The Supreme Court reduced his sentence to the period already undergone (i.e., 3 months).

Badal Chandra Pathak v. State of Jharkhand (2013)

In this case, the accused (contractor) was entrusted with the work of bridge construction under the Jawahar Rojgar Yojna. He misappropriated Rs. 37,147 and did not complete the construction work. The Jharkhand High Court held that the accused was liable under Section 409 of the IPC. This Court reduced the sentence imposed upon him (i.e., simple imprisonment of 1 year and a fine of Rs. 5,000) to the period already undergone by him in custody (i.e., 6 months and 25 days) and enhanced the fine to Rs. 50,000.

Conclusion

In common parlance, some specific kind of person commits a criminal breach of trust under Section 409 of the Indian Penal Code, 1860. A breach of trust always includes criminal misappropriation, but a criminal misappropriation may not always be a breach of trust.

To prosecute the accused under the Section, there must be a malafide intention to misappropriate the entrusted properties. Such properties may not always be owned by the government. Moreover, it is mandatory to prove this fact. Generally, the burden of proof lies on the prosecution. But this burden may shift to the accused in special circumstances.

Frequently Asked Questions (FAQs)

What is the nature of the offence under Section 409 of IPC?

The offence under this Section is cognizable, non-bailable, and non-compoundable.

Who is suitable for taking cognizance of such an offence?

The offence under Section 409 of the IPC is triable by a Magistrate of the first class.

What is the reason behind the stringent punishment under this Section?

Persons mentioned in Section 409 enjoy special powers of control over the entrusted properties. Moreover, the public expects huge trust from such persons. Hence, if these persons breach public trust and misappropriate the properties, they are liable under this Section. However, the punishment under the Section is stringent.

Can a Magistrate grant bail under Section 409 IPC?

Yes, a Magistrate can grant bail in this Section based on the facts and circumstances of the case. However, if the Magistrate rejects the bail, the accused may approach the Sessions Court or High Court.

After filing an FIR against the accused, he may approach the Sessions Court or High Court for anticipatory bail.

Are the below-mentioned persons public servants? Are they punishable under Section 409?

President of Co-operative Society, and
Secretary of Co-operative Society

No, the above-mentioned persons are not public servants. In Shanmugham v. State of TN (1997) and Rabindra Nath Bera v. State of West Bengal (2012), the Courts held that the President and Secretary of the Co-operative Society are not public servants within the meaning of Section 21 of the IPC.

Is there any difference between criminal breach of trust and theft?

Yes, there is a difference between a criminal breach of trust and theft. The difference is discussed below:

Criminal breach of trust	Theft
Sections 405-409 deal with criminal breach of trust.	Sections 378-382 deal with theft.
The property is lawfully obtained with the owner’s consent but dishonestly misappropriated by the person to whom it is entrusted.	There is a wrongful taking of movable property without the owner’s consent.
The property involved is either movable or immovable.	The property involved is always movable.
The offence is complete when the offender dishonestly misappropriates the entrusted property for his own use.	The offence is complete when the offender dishonestly takes away the property.

References

https://blog.ipleaders.in/all-about-section-409-and-447-ipc/#:~:text=Section%20409%20and%20447%20of,punishment%20for%20criminal%20trespass%20respectively.
Ratanlal & Dhirajlal, The Indian Penal Code, 36th Edition, 2020.

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All you need to know about organisational policies and its necessity

By

Sneha Mahawar

-

November 2, 2023

0

This article has been written by Ipsita Acharya pursuing an Executive Certificate Course in International Labour Laws & Compliance: US, UK, Canada, Singapore, Dubai and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

In order to maintain harmony within our society, we need a legal system that establishes law and order. A society must abide by these rules and regulations; likewise, organisations need policies to maintain a healthy relationship within. Among all resources, human resources are the most crucial resource found on the earth and managing them is the toughest job. That’s why, in an organisation, there is a HR department to specifically handle the most important asset, i.e., human resources.

What are organisational policies

Human resource policies can be defined as the guidelines to perform different functions that an organisation incorporates to manage its assets. HR policies are an integral part of an organisation because they provide an outline of the workplace culture and assist in making consistent decisions for the welfare of the organisation and its employees. When a company implements strong policies, it reflects a fair work culture that will meet the standards of corporate governance.

Function of policies

Although policies may differ across various organisations, their core purpose remains the same. They help employees stay on track and companies reach their goals while avoiding unwanted occurrences. The staff are expected to perform as per these guidelines. Policies help to maintain equality amongst all, as each one is bound by the defined rules; no one can create their own rules.

How to decide which policies are required for your organisation

Effective HR policy formulation does not employ a one-size-fits-all model. It’s totally based on the unique needs and characteristics of the organisation and its workforce. While deciding the HR policy, the following things have to be kept in mind:

The company’s mission and vision will be the priority while framing the policy.
You have to ensure managers have the tools and resources necessary to implement and enforce the policy.
The introduced policy must serve the real needs and concerns affecting the company.
It should be consistent regarding the values and ethics of the organisation.
If there is a legal obligation to create a policy, you have to develop a policy that complies with those specifications.
Too much discretionary power with managers impacts the working environment and accomplishment of business goals. You must design policies that encourage employee inclusion and engagement in corporate decision-making.

It’s an investment that can pay large dividends in increased productivity and minimised litigation. HR policies are the essential component of your comprehensive people strategy. Many organisations do not have their own HR policies, however whether you are a big company or a small business with a handful of employees, HR issues will undoubtedly arise. You must be prepared beforehand.

How policies are different from procedures

Policies and procedures go hand in hand but are not interchangeable. In plain terms, policy is “what to do” and procedure is “how to do”. Together, it allows them to know the culture the organisation is striving for, the acceptable behaviours, and how to achieve them.

A policy is a predesigned guidelines for business strategies and objectives. It plays a very important role in connecting the organisation’s vision and mission with the day-to-day operations. Policies guide the decision-makers to solve any dispute effectively and quickly.

A procedure explains a specific action plan for carrying out a policy. In simple terms, the procedure is a road map. They eliminate common misunderstandings by identifying job responsibilities and establishing boundaries for those jobs. Procedures enable managers to control events and issues in advance to prevent the organisation from making costly decisions.

To operate a company smoothly and effectively, there must be a set of policies and procedures. They reduce the risk of liability and promote consistency across the organisation.

Formulation and implementation of policies

Analysing the need of a policy

Firstly, you have to understand the needs of the policy and decide which policies you have to frame as per the nature and work-culture of your organisation. You have to keep in mind the statutory obligations while drafting the policies.

If a policy is drafted due to some statutory obligation, then you must collect all the related information that is required by law to be included in the policy.

In the case of other policies, you can get an idea from the samples available on various platforms. Then, as per your needs, you must make the amendments. You must understand the legal implications before making the amendments.

Companies involved in direct sales must be informed about the payment and return/ refund policies for customers as well.

Clarity of the purpose

Policies are a tool to structure the relationship between the employees and the consultant. Whether it is good conduct or bad conduct, predetermined consequences must be there. How to deal with misconduct, how to encourage good deeds by rewarding them, etc., should be included in the policies. A thorough research work must be done beforehand, as well as taking suggestions from the concerned manager, employees and related persons to develop a strong policy.

Drafting the policy

A balance needs to be maintained between covering all contingencies that can arise and letting the employees grow in a free environment.

The following things should be kept in mind while drafting policy:

It should be respectful and welcoming to the diversified employees.
Keep the sentences small, simple and error free.
You should keep it brief and to the point.
A realistic approach should be maintained while developing the policy.
Consequences must be straight and clear, without any ambiguity.
After making the first draft, you should share it with all the concerned people for their expert suggestions and insights.
Ensure that the policy has been understood by the concerned people in the same way you want them to understand.
After observing the legal implications, you can prepare the final draft.

Check the accessibility

Once the final drafting is done, the policy must be appropriately communicated to all the present stakeholders and the employees to whom it applies. For a better understanding of the policy, proper training must be provided. Also, make sure that it is included in a system/ process by which relevant staff members can incorporate and share it with others to whom it is applicable from time to time.

Regular review and amendments accordingly

Policy framing is not a one-time process. No policy is foolproof and it needs to be amended as per the changing laws, needs and circumstances in the company. Make sure that the policies are periodically reviewed and amended accordingly. You must ensure that all the concerned people get the change notifications immediately.

The importance of policies

By now, we have somehow understood the functions and uses of the policies in maintaining the work culture and HR strategy in an organisation. Let’s discuss it in a little depth to understand it better. The importance of HR policies is as follows:

Increase compliance

One of the primary functions of human resource policies is to make sure that the policies are aligned with best practices and legal compliance. Every industry has its own set of laws, regulations, standards and best practices that businesses need to abide by. In addition to those, policies help your organisation comply with international, federal, state and local laws and regulations.

It gives clarity about the expectations of the employees while protecting the organisation from legal liability in case of any disputes.

Smooth internal processes

Creating a healthy environment in the workplace is really mandatory because it directly affects the productivity of the business. It reduces the scope of discrepancies, which allows a very friendly atmosphere to show their effectiveness and efficiency. Equality is maintained as everyone has to abide by the same set of rules and regulations.

It ensures consistency throughout the business by standardising the quality of service or product. It helps in maintaining the customer and client relationship in a better way.

Accountability

Accountability means meeting the expectations set by the organisation. When an employee is already aware of the objectives of the organisation, it will be easier for him/ her to perform accordingly. In the event that an employee is unable to perform as expected, the company has the choice of giving further training or terminating employment before it becomes a more significant problem.

Employees are aware of acceptable and unacceptable behaviour in the workplace and also know what they can expect from the company in terms of growth and development.

Help centre

Policies can prevent the workplace crisis with the appropriate safety measures. They keep the organisation from overlooking any incidents or crises. Examples of crises include disasters, faulty products, malware attacks, and lawsuits. Policies detailing good customer service, as well as social media and communication plans, can help your organisation reduce the damage in a crisis. Policies will set out the processes and options available to address any workplace grievances.

Conclusion

HR policies provide consistency and transparency for employees and managers and help to create a positive and healthy organisational culture. It gives the detailed responsibility of the employer towards the employees working under him and offers guidance to the employees about how they should conduct themselves to maintain the dignity of the place.

Hence, it is mandatory to explain the policies to the employees in detail and a copy (either hard copy or soft copy) should be provided to them. They should sign an acknowledgement of receiving and understanding the policies.

Whether it is a small company or a big one, policies cannot be overlooked. Strong policies lead to the growth and smooth running of an organisation.

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

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Unveiling the dark past : a deep dive into the Karamchedu and Tsunduru Massacres

By

Sneha Mahawar

-

November 2, 2023

0

This article has been written by Yashwanth Kumar pursuing Diploma in International Contract Negotiation, Drafting and Enforcement and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Unfortunately, the state of Andhra Pradesh in India has witnessed distressing incidents characterised by caste-based violence and horrifying acts committed against the Dalit community. The caste system has been a standing tradition deeply embedded in society for centuries. The Varna system, mentioned in the Hindu scriptures known as the Vedas, particularly highlights this hierarchical structure.

Throughout history, the Varna system gradually grew more inflexible. Structured, with one’s social position being influenced by their birth and occupation. According to the Vedas, the Varna system initially emerged as a means of organising labour division. The Shudras, positioned at the rungs of this system, were predominantly tasked with serving the three varnas; Brahmins (priests and scholars), Kshatriyas (warriors and rulers), and Vaishyas (merchants).

Within the Varna system, it was believed that individuals were born into their varnas based on their karma (actions) in their lives. Shudras were considered to have been born into their status as a result of their previous actions in their previous lifetime. This belief linked an individual’s status to their birth and limited social mobility. The caste system in India has been a subject of debate and reform over time. The Indian Constitution prohibits caste-based discrimination under Article 15 and promotes equality under Article 14, along with justice. Since independence, the government has been committed to uplifting marginalised communities and ensuring their development.

In this article, we will delve into the specifics of two incidents that occurred in Andhra Pradesh. We will also explore the factors that led to these massacres and analyse their long term impact on the communities.

Introduction to the Karamchedu and Tsunduru Massacres

The Karamchedu and Tsunduru Massacres are hunting reminders of India’s deeply rooted caste-based violence. In 1985 and 1991, these events took place in Andhra Pradesh, leaving an impact on the country. To fully grasp the importance of these incidents, it is essential to delve into the context of violence based on caste in India.

Historical background of caste-based violence in India

Caste-based violence has been prevailing in the country for centuries. The caste system is a social hierarchy that places individuals into hierarchical groups based on birth. The caste system has deeply influenced cultural practices leading to societal divisions and conflicts. Throughout history, individuals of all castes have endured atrocities, marginalization and violence at the hands of dominant castes. The historical background of caste-based violence can be traced through various periods:

Ancient period

The caste system finds its origins in ancient Hindu scriptures, particularly the Manusmriti, which laid down rules for social stratification and prescribed different duties for different varnas.
The rigidity of the caste system and the concept of untouchability led to social exclusion and discrimination against certain groups, particularly the Dalits.

Mediaeval period

The caste system became more entrenched during the mediaeval period, with various rulers and kingdoms incorporating it into their social structures.
The emergence of the Bhakti movement in the mediaeval period challenged some aspects of caste hierarchy by emphasising devotion to a single god and the equality of all before the divine. However, the impact on societal practices varied.

Colonial period

The British colonial administration, which ruled India from the 18th to mid-20th centuries, institutionalised caste distinctions and created policies that further marginalised certain groups.
The census operations conducted by the British categorised and enumerated people based on caste, contributing to the solidification of social divisions.

Post-independence period

Despite efforts to eliminate caste-based discrimination in the Indian Constitution with affirmative action policies and legal protections for Scheduled Castes and Scheduled Tribes, social and economic disparities persisted.
Violence against Dalits and other marginalised groups continued, often manifesting in the form of atrocities, discrimination, and social ostracism.

Contemporary period

Caste-based violence remains a significant issue in contemporary India, with incidents reported across the country.
Economic, educational, and political empowerment programmes have been implemented to uplift marginalised communities, but challenges persist due to deeply ingrained social attitudes and economic disparities.

Several high-profile incidents of caste-based violence, such as the atrocities against Dalits and inter-caste marriages, highlight the ongoing struggles in dismantling caste-based discrimination and violence in India. Various social and political movements continue to advocate for the eradication of these deep-rooted inequalities.

The Karamchedu Massacre

The Karamchedu Massacre took place in 1985 in the village of Karamchedru, located in Andhra Pradesh. This tragic event shook the nation. Shed light on the harsh reality of violence based on caste divisions in our country. On July 17^th, 1985, a group of individuals belonging to the Kamma caste launched a divisional attack on the village of Kramchedu.

The genesis of this massacre is that the Dalits used to drink water from a water tank in the village and a Kamma youth did an inhuman thing on July 16, 1985. He washed his buffalo near the water tank and let the soiled water into the tank. This incident was seen by a Dalit youth, and he confronted him about this heinous act. Then, the former bet the latter with his cattle whip and at the same time, there was a girl who came to fetch water, and she was also beaten by him.

This incident greatly affected the pride of the Kamma people, and they wanted to teach a lesson to the Dalits. Then the Kamma people planned to attack the Dalits, so the following morning the Kamma people got equipped with axes, spears, and clubs and launched a surprise attack on Dalit people; they didn’t even spare pregnant women and mothers with children. They destroyed everything and even tortured some Dalits. The Dalits tried to outrun the village and fled to the neighbouring Chirala town, which was about 8 kilometres away. The police in Chirala acted inhumanely and arrested the Dalits instead of helping them. A refugee camp was organised for Dalits in a church in Chirala town. The camp consisted of about 500 Dalits.

The police, who are supposed to protect citizens and maintain law and order, did not arrive until the massacre was over. And instead of arresting them, the police harassed and threatened the Dalits. The Kamma people tried to suppress the massacre with their political, social and economic power. The media, which is considered a fourth pillar of democracy, has ignored this heinous incident. The outcome of this brutal attack was that six Dalits were dead, over 20 others were injured and three cases of rape were reported.

As a result of this incident, Dalit Mahasabha was formed in Andhra Pradesh on September 1, 1985, by intellectuals like Bojja Tarakam and Katti Padma Rao. The Dalit Mahasabha strived very hard to ensure justice for the victims of this massacre.

The case was filed and in 1991, the trial court acquitted all the accused due to an alleged lack of evidence. The trial court’s judgement was challenged in the High Court of Andhra Pradesh. In 1994, the High Court of Andhra Pradesh reversed the trial court’s judgement and convicted 30 people. However, it is worth noting that nine individuals were given life sentences as a result, while others received prison terms. A plea was made to the Hon’ble Supreme Court of India to increase the punishment for all those convicted. In 2007, after consideration, the Hon’ble Supreme Court upheld the judgement made by the A.P. High Court; however, they did reduce one person’s sentence to life imprisonment.

The incident of this mass killing was a reminder for the people in India, prompting a renewed emphasis on tackling the issue of discrimination. Despite some progress being made since then, instances of violence based on caste divisions continue to persist in our society. The struggle for justice following the Karamchedu Massacre reminds us of how we need legal protections and comprehensive measures to combat these forms of violence and discrimination.

The struggle for justice in the aftermath of the Karamchedu Massacre serves as a reminder of the need for stronger legal safeguards and comprehensive measures to address these types of caste-based violence and discrimination.

Tsunduru Massacre

In the year 1991, there was an incident of caste related violence that took place in the village of Tsunduru, Andhra Pradesh. This event, known as the Tsunduru Massacre, bears similarities to the Karamchedu Massacre. It involved a clash between the Reddy caste and Dalit community triggered by issues surrounding land ownership and power imbalances.

On August 6, 1991, Tsunduru village in Guntur district of Andhra Pradesh became witness to a massacre that continues to be a stain on India’s history of caste relations. This tragic incident took place as a result of an occurrence in which a Dalit boy accidentally touched a Reddy boy’s foot while they were both sitting in a cinema hall. In response, the Reddy youth targeted the Dalit boy. Forcefully made him consume alcohol. Afterwards, they brought him to the police station under allegations of behaviour towards women while he was intoxicated. Another incident occurred where a Dalit boy was accused of brushing against two Reddy girls outside the cinema hall. These two incidents led to a boycott against the Dalits that lasted over a month. As a result, they had to travel to Tenali to purchase necessities and groceries and due to the boycott, many had to seek work in Ongole.

Originally, the Dalits were economically underprivileged. They worked as labourers on fields owned by people belonging to the Reddy caste. However, recognising the importance of education in breaking free from their status, Dalit families encouraged their children’s education. As a result of this support from their families, the literacy rate among the Dalits is higher compared to higher caste communities like Reddy’s. A significant number of Dalits have obtained bachelor’s degrees from Ambedkar College in Tenali.

As the Dalits became more educated, they began to challenge the caste system and boundaries within the village. This act of defiance was seen as a violation of honour by the upper caste individuals, which further escalated tensions and led to this massacre.

The Reddy community has both economic and political support and the cooperation of the police, who endorsed the massacre. They neither actively participated in nor overlooked the attacks on Dalits. Without police backing and cooperation, organising such a massacre would have been exceedingly difficult for the Reddy community. On August 6^th, 1991, the police arrived at Dalit’s houses unexpectedly, prompting Dalit men to flee to nearby fields where members of the upper caste awaited them with deadly weapons like axes, iron rods, spears, sickles, ploughs, etc. As soon as the upper caste individuals spotted the approaching Dalits, they ruthlessly launched an assault using their weapons. Some bodies were dismembered and their parts stuffed into gunny bags. Other members sustained multiple wounds and severe injuries, while all the stuffed gunny bags were discarded into the nearby Tungabhadra canal. Due to this massacre, a total of 8 Dalits were killed by the Reddy’s. During the following days of the massacre, the Dalits actively searched for the missing men who had been targeted in the attack. Without any assistance from the police, they successfully recovered all the bodies that had been concealed. Finally, it became undeniable to law enforcement that a significant incident had indeed occurred at Tsunduru. Unfortunately, when the corpses were discovered, they were already severely swollen and decomposed. Understandably distressed by these grim findings, most Dalit families chose to flee Tsunduru and find safety in Tenali. Eventually, they brought the retrieved bodies to the Tenali government hospital. The doctor responsible for conducting post-mortems on these bodies couldn’t digest the brutality of the murders and later took his own life by hanging.

The pursuit of justice for the Tsunduru victims has been a long and difficult legal battle. To ensure fair proceedings, a special court was established in Tsunduru, which was rare and unprecedented. In 2007, this court sentenced 21 accused to life imprisonment and 35 others to one year imprisonment. However, in 2014, the Andhra Pradesh High Court overturned the verdict due to a purported lack of evidence and inconsistencies in the prosecution’s case. Currently, the matter is with the Supreme Court, where both the victims’ families and activists remain hopeful for a favourable outcome.

The Tsunduru Massacre shed light on the rooted biases and discrimination prevalent in society. It emphasised the pressing need for measures to combat caste-based prejudice and violence. Additionally, this incident served as a catalyst for political movements striving to dismantle the caste system and seek justice for victims affected by heinous acts.

Socio-political implications of Karamchedu and Tsunduru Massacres

The Karamchedu and Tsunduru Massacres had political consequences both at a local and national level. These tragic events shattered the illusions of an equal society, revealing the reality of caste driven violence. The massacres sparked discussions on issues like caste-based discrimination, the importance of justice and the necessity of affirmative measures to empower marginalised communities.

At a national level, the Karamchedu and Tsunduru Massacres had significant implications for legislative reforms and policies concerning caste-based discrimination. These tragic incidents compelled both the government and society to confront the deeply rooted prejudices and inequalities that perpetuate caste violence. As catalysts for change, these massacres spurred efforts towards improved representation and opportunities for historically marginalised communities.

The aftermath

The consequences of the Karamchedu and Tsunduru Massacres had an impact on matters of justice, rehabilitation and reconciliation. These incidents deeply wounded the Dalit community and the response to these massacres varied in its approach to seeking justice and healing.

The Supreme Court delivered the final verdict 23 years after the Karamchedu Massacre and 17 years after the Tsunduru Massacre. Both cases experienced significant delays in their legal proceedings, shedding light on the challenges faced by victims and survivors seeking justice for caste-based violence. Despite these hurdles, the convictions of certain perpetrators offered some solace and closure to the affected individuals and their families. Both massacres resulted in Dalit communities being uprooted, forcing families to leave their homes and find refuge elsewhere. The survivors encountered challenges in rebuilding their lives and livelihoods. The state government, along with civil society organisations, played a role in providing support for rehabilitation, such as shelter, healthcare services and economic assistance. However, rehabilitation proved to be a process as survivors continued to grapple with the social impacts of these violent events.

Finding comfort after such traumatic experiences can be incredibly challenging and it requires effort over the long term. The Dalit community, along with activists and organisations, actively strives to promote dialogue and understanding among castes. Their efforts towards reconciliation aim to bridge gaps, address historical grievances and foster social harmony. Moreover, survivors receive assistance through healing programmes that include counselling and support for trauma recovery, helping them overcome the distressing massacre they have endured.

The Karamchedu and Tsunduru Massacres received attention both within India and internationally. These tragic incidents highlighted the violence based on caste in India, exposing the seated inequalities and discrimination faced by the Dalit community. As a result, various international human rights organisations united to advocate for the protection and well being of this marginalised group.

The aftermath of the Karamchedu and Tsunduru Massacres showcases the difficulties faced by individuals who have suffered from violence based on their caste. These incidents had a lasting effect on Dalits and have played a significant role in shaping conversations about caste discrimination, underscoring the pressing need for reform in India. For justice, ongoing rehabilitation efforts and healing programmes necessitate sustained commitment from all stakeholders to address the root causes of caste-based violence while fostering harmony and equality.

Legislative measures to prevent atrocities

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

In 1989, the government enacted the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, also known as the PoA Act, to tackle the discrimination faced by individuals belonging to SC and ST communities. This Act prevents incidents of violence and discrimination based on caste. In 2015, the Act underwent amendments that broadened its scope to include forms of atrocity committed against Dalits and Adivasi women. These new provisions cover offences such as assault, sexual harassment and Devadai dedication.

Special cells and courts to address atrocities against SCs/STs

In Andhra Pradesh, specific measures have been implemented to ensure the implementation of the Prevention of Atrocities Act. A specialised unit known as the Special Cell has been established within the Police Department, operating under the CID office and headed by an IGP/DIG. This dedicated cell focuses on expediting investigations, prosecutions and overall management of cases related to untouchability offences and atrocities against SCs/STs. The expenses for this PCR cell in CID are fully covered by the Social Welfare Department.

Furthermore, Special Sessions Courts have been set up in Andhra Pradesh with the purpose of handling cases pertaining to atrocities against SCs/STS, under the Prevention of Atrocities Act enacted in 1989.

These specialised courts, led by designated judges and supported by public prosecutors who were appointed under this SC ST (PoA) Act, have the goal of establishing a platform to ensure that cases related to caste-based crimes are fairly resolved.

Efforts to protect marginalised communities and promote equality

After the enactment of the SC and ST Acts, many Special Cells and Courts were established to safeguard the oppressed and marginalised communities and the main aim of this Act is to promote equality as guaranteed under Article 14 of the Indian Constitution.

The government should provide quality education, employment opportunities, and financial support to marginalised communities and it should also conduct awareness campaigns on this social evil. The government alone cannot do all of this; we, as the citizens of this country, must take part in these programs and the NGOs should also make certain awareness programmes regarding this social evil.

The government and the NGOs, along with the citizens, can make this social evil of caste discrimination disappear from society.

The impact of media and public awareness in tackling violence based on caste

There are three pillars in democracy, legislative is the first, executive is the second, judicial is the third and media is often considered the fourth pillar of democracy. The media has ignored these incidents in the first instance. But many journalists and activists worked hard to reveal the bitter truths of these two massacres. Due to the hard work of these journalists and activists, the massacres received huge public support and agitations were started for justice for the victims.

Due to the unwavering work of these journalists, the victims of these massacres received huge public support throughout the country and several movements were started to make sure the victims received justice.

Conclusion

Both the Karamchedu and Tsunduru Massacres are live examples of the caste based discrimination, even in this modern era. Thus, these incidents proved that social evil, i.e., caste discrimination, is still prevailing in our country and is embedded in the nature of some people. Due to these massacres, the SC, ST (PoA) Act was enacted to safeguard the oppressed caste people. Due to the stringent nature of this Act, it has shown some effect in defeating caste discrimination, and this Act is a clear example that caste discrimination is both an offence and a social evil, and the offenders will not go unpunished. We, as educated people, should prevent this social evil and eradicate this discrimination in our country. India is a diverse country and we believe in “Unity in Diversity”, so as the citizens of this country we must unite and eradicate this social evil from our country and must treat the oppressed people with dignity and respect. We, as the citizens of this country, must create awareness about this evil practice and should make sure that our future generations do not suffer because of this social evil.

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.

Shakti Vahini vs. Union Of India (2018) : case analysis

By

Vanshika Kapoor

-

November 2, 2023

0

This article has been written by Jayant Singh, pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Introduction

Everyone nowadays is familiar with the term ‘discrimination’. Discrimination simply refers to the treatment of a particular group or individual as inferior or less important by another group or individual. One can discriminate against another for various reasons, like caste, religion, gender, race or age. Discrimination among people may lead to the commission of some harmful acts. One of such acts is called ‘honour killing’. Today, we will discuss a case relating to the same.

Honour killing

Before going into the details of the case, let us first understand what ‘honour killing’ actually means.

Honour killing refers to the killing or murder of one person by another person, whether they are a stranger or a family member, in an effort to uphold what they believe to be the dignity and honour of themselves or their family. Various factors, including religion, caste, race and other types of social hierarchy, play a role in such killings. It may include killing of a male or female by their family members because they believe that such person has caused dishonour or humiliation to the family name, reputation, or prestige

Facts of the case

In the case of Shakti Vahini vs. Union of India (2018), the petitioner, Shakti Vahini Organisation, approached the Hon’ble Supreme Court of India under Article 32 (Right to Constitutional Remedies) of the Indian Constitution. The petitioner’s organisation was authorised by the National Commission for Women to conduct a research study on “honour killings in Haryana and western Uttar Pradesh” by an order dated 22/12/2009. It was seen that the instances of people not marrying each other out of fear in Haryana, Uttar Pradesh and Punjab have increased due to the increase in instances of honour killings.

As per the report of the National Crime Records Bureau (NCRB) for the years 2014, 2015 and 2016, 288 cases of honour killings were reported, out of which 28 cases were reported in 2014, 251 cases were reported in 2015 and 77 cases were reported in 2016.

The petitioner under the Indian Constitution sought directions from the respondents (the state and the central government) to take measures and preventive steps to counter crimes such as honour killings and other honour crimes, to submit a national and state plan of action to reduce and control the crimes of the said nature and to also direct the state governments to make or constitute special cells for the safety and well-being of couples. Also, requests have been made for issuing a writ of mandamus to the state governments to start prosecutions in each case of such honour killings and to take measures that are appropriate to deal with such honour crimes and the evil mindset of some members of society.

The following actions/reasons are found to be connected with honour crimes, as mentioned in the petition:

Loss of virginity outside marriage
Premarital pregnancy
Infidelity
Having unapproved relationships
Refusing an arranged marriage
Asking for divorce
Demanding custody of children after divorce
Leaving the family or marital home without permission
Causing scandal or gossip in the community
Falling victim to rape

Issues of the case

Does the Constitution of India recognise the right to select one’s life partner? If so, is the Government of India taking the appropriate steps to protect this right?
Whether the law of the nation recognises informal institutions like Khap Panchayat for delivery of justice and is the current legal system proficient enough to check and curb the conservative practises carried out by such institutions?

Khap panchayats and their validity

A Khap is a community organisation that represents a clan or a collection of clans. They are generally found in northern India, particularly among the Jaat people, Western Uttar Pradesh, and Haryana; however, the word has historically been applied to other communities as well. A Khap Panchayat is a gathering of Khap elders, and a Sarv Khap is a gathering of several Khap Panchayats. The Khap Panchayats frequently make pronouncements on social concerns such as abortion, alcohol addiction, dowry and education, particularly among girls. Khaps are not associated with publicly elected government bodies and are solely concerned with the business of the Khap they represent. It is not associated with the democratically elected local assemblies known as panchayats. A khap panchayat has no official government recognition or jurisdiction, yet it can wield considerable social power within the community it serves.

Contentions of the petitioner

The petitioner cited that instances of honour killing are more common in states like Haryana, Punjab, Jharkhand, Uttar Pradesh, and Delhi than in the southern states. It was observed that the tendency towards honour crimes in these states has increased to more than 300 cases in the last three years.

The pressure of society and the inhuman treatment by the core groups who consider themselves the law makers and then impose extremely cruel punishments that create fear in the minds of victims and drive or compel them to commit suicide or suffer at the hands of such groups. These core groups are basically self-proclaimed/quasi-judicial/non-legal parallel law enforcement agencies, which consist mainly of male members of the group having connections with the group, the caste or the religion, and which often meet to solve or deal with problems relating to the group. These groups call themselves ‘Panchayat’ having the power to punish for crimes or to direct the society or group for social boycott or killing by mob.

The act of a woman or a man selecting a life partner outside of community norms is considered dishonourable and, in the end, unknowingly invites death at the cruel hands of community prescription. In the petition, it is contended that the parallel law enforcement agency is made up of senior males from a caste or lineage that frequently gets together to address issues that impact the group.

Preventive measures or steps need to be taken by the state government and the Central Government to counter, control or reduce such crimes based on honour, and a national plan of action and a state plan of action to control similar crimes need to be submitted.

Contentions of the respondents

Union of India, Ministry of Home Affairs and Ministry of Women and Child Development

Respondents 1, 2, and 3 have submitted a counter-affidavit. It has been argued that honour killings are considered murder as defined by Section 300 of the Indian Penal Code, 1860, and are therefore punishable under Section 302. As public order and the police are considered state concerns under the Indian Constitution, dealing with honour killings falls primarily under the purview of the states. A proposal to either change the Indian Penal Code (IPC) or pass a new piece of legislation to address the problem of honour killing and associated issues has also been put forth by the Central Government.

The 242nd report of the Law Commission of India proposed passing a bill titled “The Prohibition of Interference with the Freedom of Matrimonial Alliances Bill” to address the problem of “honour killing,” according to a new affidavit filed by the Union of India on September 9, 2013. The Union of India also asserts that discussion with the governments of the States and Union Territories is necessary in order to make a policy decision in the aforementioned matter because the 242nd report of the Law Commission of India falls under the concurrent list of the Indian Constitution.

The State of Punjab

The State of Punjab has filed an affidavit stating that it does not intend on being a silent spectator to any kind of honour killing and for the same reason, a Memo No.5/151/10-5H4/2732-80 has been issued by the State of Punjab in the Department of Home Affairs and Justice, which lays down and brings into force the revised guidelines/policies so as to remove any doubt and to clear any uncertainty and/or threat prevalent amongst the public at large. The policy focuses on dealing with the protection of newly married or wedded couples who think there is a danger to their life and liberty for at least 6 weeks after marriage. The state further asserted that it is determined to take pre-emptive, protective and corrective measures, and when any case regarding the same issue is noticed or highlighted, appropriate action has been taken and shall also be taken by the government. It is also reflected that all the culprits of the crime have been booked and proceeded against under the law.

The State of Haryana

An affidavit has been filed by the State of Haryana in which it denies the allegations that were made against the state. It was also stated that adequate protection has been provided to the couples by virtue of the orders of the High Court and District Courts and in some instances, when the police come to know of the situation directly. It is further contended that FIRs have been registered against the accused persons and that the cases are proceeding according to law. The State of Haryana has also informed us that an action plan has already been prepared and the Crime Against Women Cells are functioning at every district headquarter in the state, and citizens have been made well aware of such cells.

The State of Jharkhand

The State of Jharkhand has filed its response, in which it stated that measures have been taken against persons involved in such crimes. It was mentioned that honour killing is not common in the State of Jharkhand and appropriate steps shall be taken by the state to combat such crimes.

NCT of Delhi

On behalf of the NCT of Delhi, a counter-affidavit has been filed. According to the affidavit, the Delhi Police Department does not keep separate records for “honour killing” instances. However, it has been said that 11 instances had been registered at the time the affidavit was filed. It is urged that such cases be handled by the District Police and that there be a special cell operating within Delhi Police for serious crimes involving internal security, and that such cases be referred to the said cell; there is no need to establish a special cell in each police district. The emphasis has been placed on the fact that the Delhi Police has sensitised the field officers in this regard, allowing the issues to be addressed with the requisite care and sensibility. The Department of Women and Child Development has also created plans for the rehabilitation of female victims facing the threat of honour killing, and attempts have been made to educate the public about the dangers of such acts. A circular on the subject of ‘Action to be taken to prevent occurrences of “honour killing”‘ has been made public.

The State of Rajasthan

The State of Rajasthan, in its response, strongly deplored the conduct of unlawful activities under the guise of khap panchayats. The State of Rajasthan contends that it has issued circulars to police officers to keep an eye on panchayat activities and has expressed its willingness to follow any guidelines issued by this Court to ameliorate and curb the evil of honour killing that exists in our society.

The State of Uttar Pradesh

Two affidavits were filed by the State of Uttar Pradesh in which it was stated that the states’ primary duty is to protect the fundamental rights mentioned and guaranteed under the Indian Constitution. Further, it was contended that while there is no specific legislation to regulate and prevent “honour killing,” effective measures are being taken by the enforcement agencies under the current law. Such measures include directions and guidelines being given to law enforcement agencies. It was also brought on record by the State of Uttar Pradesh that no cases of “honour killing” were reported between January 1, 2010 and December 31, 2012, but still, directions are being given to the police stations to keep an eye on the activities and functioning of khap panchayats. The state has agreed to comply with any directions that may be issued by this court.

The State of Bihar

The State of Bihar has filed an affidavit acknowledging that honour killing is a heinous crime that violates the fundamental rights of the citizens. The State of Bihar has mentioned five cases that may assume the character of honour killing, though the cases of honour killing are almost zero in the state. It was also said that several reformative steps for the upliftment and empowerment of women have been taken by the state, and constant efforts to sensitise people are being made. It was further stated that a scheme called “National Saving Certificate” has been initiated by the State of Bihar under which Rs. 25,000 is being provided as an incentive to any woman performing inter-caste marriage in order to ensure their economic stability.

The State of Madhya Pradesh

The State of Madhya Pradesh contends that the State Government and police are alive to the problem of honour killings and a cell named “Crime Against Women Cell,” headed by the Inspector General of Police, has been created at the state level to ensure the safety of couples and active prosecution in each case of honour killing. The Madhya Pradesh Government, vide order no. F/21-261/10 dated January 27, 2011, has issued specific instructions to the District Magistrates/ Superintendent of Police for taking strict action in cases of honour killing.

The State of Himachal Pradesh

The State of Himachal Pradesh contends that no panchayats of the nature of khap panchayats are operating in the state, and no cases of honour killing have been reported in the last 10 years. The state asserts that several measures to combat the social evils prevailing in society are being taken by the state.

Marriage under national laws

Hindu Marriage Act of 1955

An individual who practises Hinduism, Buddhism, Sikhism, or Jainism may marry a person who has converted to one of the aforementioned religions and register themselves under the Hindu Marriage Act of 1955. In accordance with this law, marriage is a sacrament and not a legal agreement.

Special Marriage Act of 1954

The Special Marriage Act of 1954 allows anyone to marry anyone, regardless of their religion. Marriage is a legal contract under this law; no religious ceremony is required to consummate the union.

Right to Marry under the Indian Constitution

No one has the right to punish two consenting adults who are getting married. Both Article 19 and Article 21 of the Constitution recognise this. Family, community, and clan approval is not required for a marriage between two adults. According to Article 21 of the Indian Constitution, the right to marriage is a component of the right to life. Thus, there is no law or provision in the constitution that forbids or makes inter-caste, inter-religious marriages unlawful.

Marriage under international conventions

Within the context of the right to begin a family, the Human Rights Charter also states that the right to marriage is protected. Everyone has the legal right to marry, which is a fundamental freedom. Insisting that these rights are a crucial component of the “foundation of freedom, justice, and peace in the world,” the Universal Declaration of Human Rights (UDHR) calls on its signatory countries to advance a variety of human, civil, economic, and social rights. The UDHR’s Article 16 guarantees the right to freely select a spouse and to enter into matrimony only with that person’s free and informed consent. The right of men and women of marriageable age to marry and establish families shall be recognised, and no marriage shall be consummated without the free and informed consent of the intended spouses, according to Article 23 of the International Covenant on Civil and Political Rights of 1966. Marriage must be entered into with the voluntary permission of the intended spouses, according to Article 10 of the International Covenant of Economic, Social, and Cultural Rights of 1966. According to the European Convention on Human Rights (ECHR), all men and women who have attained the legal marriageable age have the right to marry and start a family. Article 12 states that men and women of marriageable age have the right to marry and have children, subject to national laws controlling the exercise of this right.

Supreme Court’s Judgement

The Supreme Court ruled that a daughter, sister, or son’s human rights “are not mortgaged to the so-called or so understood honour of family, clan or the collective.”

The Supreme Court reaffirmed / restated the right to choose a life partner as a fundamental right; family, community, or clan agreement is not required for marriage between two people. “When two adults choose each other as life partners consensually, it is a manifestation of their choice recognised under Articles 19 and 21 of the Constitution,” the Supreme Court ruled.

According to the Supreme Court, a “khap panchayat” is any person or group of people who have gathered, assembled, or congregated at any time with the view or intention of condemning any marriage, including a proposed marriage, that is not prohibited by law, on the grounds that such marriage has dishonoured the caste or community tradition or brought disrepute to all or any of the persons forming part of the assembly or the family or other people of the locality.

State governments should immediately identify districts, Sub-Divisions, and/or villages where cases of honour killing or assembly of Khap Panchayats have been reported in the recent past, for example, in the last five years.

The Secretary of the concerned states’ Home Department shall issue directives/advice to the Superintendent of Police of the concerned districts to ensure that the officer in charge of the police stations in the identified areas is extra cautious if any instance of inter-caste or inter-religious marriage within their jurisdiction is brought to their attention. If any police officer or District Administration officer becomes aware of any proposed Khap Panchayat gathering, he shall immediately notify his immediate superior officer and simultaneously notify the jurisdictional Deputy Superintendent of Police and Superintendent of Police.

The Government of India’s Home Department must take the initiative and collaborate with state governments to sensitise law enforcement agencies and involve all stakeholders in identifying measures to prevent such violence and implementing the constitutional goal of social justice and the rule of law. There should be an institutional apparatus in place that coordinates the efforts of all stakeholders. The various state governments and the central government should concentrate on sensitising law enforcement authorities to mandate social efforts and awareness to reduce such violence.

Preventive steps issued by the supreme court

The state governments should forthwith identify the districts, Sub-Divisions, and/or villages where reports of honour killings or the formation of Khap Panchayats have surfaced recently, such as within the last five years.
The Secretary of the concerned states’ Home Department shall issue directives/advice to the Superintendent of Police of the concerned districts to ensure that the officer in charge of the police stations in the identified areas is extra cautious if any instance of inter-caste or inter religious marriage within their jurisdiction is brought to their attention.
Any police officer or District Administration officer who learns about a proposed Khap Panchayat gathering must immediately inform his immediate superior officer and simultaneously intimate the jurisdictional Deputy Superintendent of Police and Superintendent of Police.
The Deputy Superintendent of Police (or the senior police officer designated by the state governments for the area/district) must speak with the Khap Panchayat members right away after receiving this information in order to make it clear that holding a meeting is against the law and that they should abstain from holding one.
If the meeting goes ahead despite these precautions, the Deputy Superintendent of Police must personally attend it and make it clear to the group that no decisions should be made that could harm the couple or their family members; otherwise, everyone present at the meeting—aside from the organisers—would be personally responsible for any criminal offences committed. Additionally, he will see to it that the conversation and participation of the assembly members are videotaped so that the law enforcement apparatus may take appropriate action in response.
If, after interacting with members of the Khap Panchayat, the Deputy Superintendent of Police has reason to believe that the gathering cannot be prevented and/or is likely to cause harm to the couple or members of their family, he shall immediately submit a proposal to the District Magistrate/Sub-Divisional Magistrate of the District/ Competent Authority of the concerned area for issuing orders to take preventive steps under the Cr.P.C., including by invoking prohibitive measures.
The Government of India’s Home Department must take the initiative and collaborate with state governments to sensitise law enforcement agencies and involve all stakeholders in identifying measures to prevent such violence and implementing the constitutional goal of social justice and the rule of law.
There should be an institutional apparatus in place to provide the necessary coordination among all players. The various state governments and the central government should concentrate on sensitising law enforcement authorities to mandate social efforts and awareness to reduce such violence.

Remedial steps issued by the supreme court

Regardless of the preventive measures taken by the State Police, if it is brought to the attention of the local police that the khap panchayat has met and it has passed any diktat to take action against a couple/family of an inter-caste or inter-religious marriage (or any other marriage that does not meet their acceptance), the jurisdictional police official shall immediately lodge an F.I.R. under the appropriate provisions of the Indian Penal Code, including Sections 141, 143, and 503 read with 506 of the IPC.
When an F.I.R. is filed, notice must also be sent to the superintendent or deputy superintendent of police, who is then responsible for overseeing the fast and efficient completion of an effective investigation into the offence.
The couple/family should also receive urgent security, and if necessary, they should be moved to a safe house within the same district or elsewhere while keeping in mind their impression of danger. For that aim, the state government can think of creating a safe house at each district headquarters. Such safe houses can accommodate both young married couples (of an inter-caste or inter-religious or any other marriage being opposed by their families/local community/Khaps) and young bachelor-bachelorette couples (whose relationship is being opposed by their families/local community/Khaps). The District Magistrate and Superintendent of Police with jurisdiction over the area may be assigned to oversee such safe homes.
The District Magistrate or Police Superintendent must handle the allegation regarding the threat made against such a couple or family with the utmost tact. To begin with, it is important to confirm that the bachelor and bachelorette are mature adults. They may then receive logistical support for solemnising their marriage and/or being properly registered under police protection, if they so choose, if necessary. If the couple desires it, they can stay in the safe house after the wedding for a minimal fee, initially for a period of one month that can be extended on a monthly basis but cannot exceed one year overall, depending on their threat assessment on a case-by-case basis.
The District Magistrate/ Superintendent of Police shall entrust an officer of the rank of Additional Superintendent of Police with the initial investigation into the complaint regarding the couple (bachelor-bachelorette or a young married couple) or upon receiving information from an independent source that the relationship/marriage of such couple is opposed by their family members/local community/Khaps. He will make a preliminary investigation to determine the veracity, nature, and seriousness of the perceived danger. When he is confident in the veracity of such threats, he must send a report right away to the Superintendent of Police within a week.
Upon receiving such a report, the District Superintendent of Police shall order the Deputy Superintendent of Police in charge of the affected subdivision to cause an F.I.R. to be registered against the person or individuals threatening the couple(s) and, if required, to invoke Section 151 of the Code of Criminal Procedure, 1973. Additionally, the Deputy Superintendent of Police must personally monitor the investigation’s development to make sure it moves swiftly towards its logical conclusion. Without exception, everyone who has taken part in the assembly, including the members, will be booked during the investigation. Members of the Khap Panchayat will also face charges for conspiracy or aiding and abetting, as appropriate, if their involvement becomes apparent.

Punitive measures issued by the supreme court

Any failure to follow the aforementioned instructions by district officers or police will be regarded as purposeful misconduct and/or negligence, for which departmental action is required under service regulations. The authority of the first instance shall commence the departmental action and carry it out to its logical conclusion, ideally within six months.
According to the decision made by this Court in Arumugam Servai (supra), the States are instructed to take disciplinary action against the concerned officials if it is discovered that (i) the official(s) did not stop the incident despite having prior knowledge of it or (ii) where the incident had already happened, the official(s) did not swiftly apprehend and initiate criminal proceedings against the offenders.
The state governments will establish special cells in each district with the District Superintendent of Police, District Social Welfare Officer, and District Adi-Dravidar Welfare Officer to handle complaints of inter-caste married couples being harassed and threatened.
These Special Cells will establish a 24-hour hotline to take such complaints, register them, and offer the couple the assistance, guidance, and protection they require.
The designated court/Fast Track Court created for that purpose shall hear the criminal proceedings involving honour killings or violence against the couple(s). The trial must go daily in order to be finished, ideally six months after the date the offence was recognised as a crime. We’ll quickly add that this directive will be followed even in cases that are still pending. To ensure that the cases are resolved quickly, the appropriate district judge shall allocate the matters, to the extent practicable, to a single jurisdictional court.

Conclusion

In this article, we have discussed the case of Shakti Vahini vs. Union of India (2018) in detail. We have discussed the meaning of honour killing and where it is more frequent in India, the facts of the case, the issues of the case, the contentions of all the parties involved (petitioner and respondents), the meaning of khap panchayat and its validity, the regulation of marriage as per national laws and international conventions, the judgement of the Supreme Court in the given case and the preventive, remedial and punitive measures issued by the Supreme Court.

References

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