This article is written by Monika Bhakta, a 4^th year student of Lloyd Law College. 

Introduction

As per the social concept of Hindu society the Joint Hindu family system looms large, the law of maintenance has a special significance in the Hindu Law. All members of a joint family, whatever be their social status and whatever be their age limit, are entitled to maintenance. Hindu law also recognizes that a Hindu has also a personal obligation to maintain certain near relations, such as wife children and aged parents.

In Hindu law, the term “Maintenance” has been used in a wide sense. Hindu Adoptions and Maintenance Act, 1956, define maintenance as ‘provision for food, clothing, residence, education, and medical attendance and treatment.’

Maintenance as a Personal Obligation:

Hindu sages, in the most unequivocal and clear terms, lay down that maintenance of certain persons is personal obligation.

Manu declared: “The aged parents, virtuous wife, and an infant child must be maintained even by doing hundred misdeeds.”

Brihaspati said, “A man may give what remains after the food and clothing of family: the giver or more (who leaves his family naked and unfed) may taste honey at first but afterwards find its poison.

According to Mitakshara : “Where there may be no property but what has been self acquired, the only persons whose maintenance out of such property is imperative, are aged parents wife and minor children.”

The maintenance of the aged parents, infant children, and wife is considered to be the greatest duty of a person. It is the belief of Hindus that if one faithfully fulfills this duty, the gates of the heaven are wide open for one. One may also attain salvation. On the other hand, a person who indulges in charity or Dan at the cost of the maintenance of his aged parents infant child and wife is condemned by the sages; it is like tasting honey which turns out to be poison later. During the British period, it was a well established rule that the maintenance of the aforesaid three sects of a person was a personal obligation of every male Hindu. Under the Modern Hindu law, in respect of aged parents and minor children, this is an obligation of every Hindu, male or female, thus, a Hindu has a personal obligation to maintain

 (a) His wife,

(b) Children and

(c) aged parents.

Maintenance as a Right of Wife

In most system of law the wife’s special position in her husband’s household is recognized. The obligation of the husband to maintain his wife does not arise out of any contract, express or implied, but out of the status of the jural relationship of the husband and wife created by the performance of the marriage. The obligation of the husband to maintain is wife begins with the marriage. It is irrespective of the fact that whether he has or has no property. Hindu law- givers did not deny maintenance even to an unchaste wife, provided she is continued to live with her husband though in such cases she was entitled to starving maintenance. Under the ancient Hindu law, a wife who did not live with her husband, whatever be the cause was not entitled to maintenance. But gradually law developed and it came to be established that a wife living separate from her husband for some justifiable cause can claim maintenance. In the modern Hindu law a wife is also entitled to maintenance after dissolution of marriage.

Under Hindu law a wife has exclusive right to claim for the maintenance from her husband. But she loses her right if she deviates from the path of chastity. Her right to maintenance is codified in the Hindu Adoption and Maintenance Act, 1956(78 of 1956). In assessing the amount of maintenance, the court take into Account various factors like position and liabilities of the husband. It also judges whether the wife is justified in living apart from the husband.

Grounds on which the Order of Maintenance can be refused

• That a wife living in Adultery, or
• That without any sufficient cause or reason she refused to live with the husband, or
• That she and her husband are living apart by mutual consent.

Adultery

Before coming into the force of the Marriage Laws (Amendment) Act, 1976 “Living in adultery” was a ground of divorce. On the other hand, a petitioner could obtain a decree of judicial separation, if he could show that his spouse after solemnization of the marriage had sexual intercourse with any person other than his spouse.

Adultery in Matrimonial and Criminal law: The following is the accepted meaning of the adultery in the matrimonial law:  “Adultery may be defined as consensual sexual intercourse between a married and a person of opposite sex, not the other spouse, during the subsistence of the marriage”.

Under the Indian Law, adultery is also a criminal offence. But the definition is different. Section 497 of the Indian Penal Code defines it thus: “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man without the consent or connivance of that man, such intercourse not amounting to the offence of rape, is guilty of adultery”.  Under both the criminal law and matrimonial law, adultery is an offence against marriage and therefore in both the cases it is essential that at the time of the offence a valid marriage was subsisting to constitute the offence of adultery it is also necessary that the respondent (in case of the criminal offence, the wife) was a consenting party. In short, the sexual intercourse must be consensual.

Proof of Adultery and Burden of Proof: The burden of proof is on the petitioner. At the time he was required to prove it beyond all the reasonable doubts, but today it can be proved by ‘preponderance of probability’. “Proofs beyond all reasonable doubts”, means such proofs as precludes every reasonable hypothesis except that which tends to support it. It need not certainty, but must carry a high degree of probability.

There is always the presumption of innocence and it is for the petitioner to prove the allegations relied upon. The respondent, on the other hand bears the burden of establishing the affirmative defences set up in reply.

It was sometimes said that since the adultery is a serious charge, it must be examined on the same footing as a criminal charge. It was also said at times that is was a quasi-criminal offence and must be proved as such. Section 23 of the Hindu Marriage Act requires that the court should decree the relief if it is satisfied that the ground for granting relief exists. It is often said that adultery is a serious matrimonial offence and the court must be satisfied beyond all reasonable doubt that it is established. However, Section 23 itself lays down a standard and puts adultery on the same footing as cruelty, desertion, or unsoundness of mind. What is required is that the court must be satisfied on a preponderance of probability that the charge is established. A logical conclusion from all points cannot be expected nor can a degree of uncertainty be demanded of which the matter under investigation is not reasonably capable. The word ‘strict’ is regarded sufficiently apt to describe the measure and standard of proof. The proceeding is civil and not criminal and analogy of a criminal case can at times be misleading.

In White v. White, AIR 1958 SC 441, the SC had to consider the words ‘satisfied on evidence’ used in Section 14 of Divorce Act, 1869. After referring to the case, Preston Jones (1951)1 AII ER 124, decided by the house of lords in England, the Supreme Court expressed the view that the words ‘satisfied on evidence’ means that the court should be satisfied beyond reasonable doubt as to the commission of the matrimonial offence. The view was also expressed that the evidence must be clear and satisfactory beyond mere balance of probabilities. It was also pointed out that it was not necessary and really possible to prove adultery by any direct evidence.

Maintenance on Adulterous Woman:

In order to constitute a claim of maintenance by the wife can be taken into consideration by the virtue of Section 18 of Hindu Adoption and Maintenance Act, 1956 which states that a wife can ask for maintenance: 1) subject to the provisions of this section, a Hindu wife whether married before or after the commencement of the Act, shall be entitled to be maintained by her husband during her life time.

2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance-

(a) If he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish , or of willfully neglecting her;

(b)If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injunctions to live with her husband;

(c)If he is suffering from a virulent form of leprosy;

(d)If he has any other wife living;

(e) If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

(f) If he has ceased to be Hindu by conversion to another religion;

(g) If there is any other cause justifying living separately.

3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

 Therefore wife in Order to be entitled for the claim of maintenance must be capable of, by virtue of section 18 clause 1 and 2. Only a wife, who as mentioned above can ask for the maintenance, But the wife who is charged under the allegation of being indulged in the adulterous activity cannot be made liable to enjoy the ripen fruits of the Maintenance. Section 18(3) of the Hindu Adoption and Maintenance Act 1956 clearly states that a wife indulged in the relationships of adultery could not be entitled to ask for maintenance. The word ‘unchaste’ refers to relating to or engaging in sexual intercourse activity or especially of an illicit or extramarital affair. A wife indulged in unchaste activity is denied for the claim of maintenance.

But while considering the concept of the Hindu Marriage Act, 1955

Section 23A ‘Relief for respondent in divorce and other proceeding’–  In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty, or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner’s adultery, cruelty, or desertion is proved the court may give to the respondent any relief under the Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.

Section 24 ‘Maintenance pendent lite and expenses of proceedings’ – where in any proceeding under this act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceedings, it may on the application of the wife or husband, order the respondent, to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sums as having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable.

None of the above the 2 sections have provisions where a respondent wife as in this case would have been denied maintenance.

But if we look at Code of Criminal Procedure, 1973 under Section 125 (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient cause or reason, she refuses to live with her husband or if they are living separately by mutual consent.

This section would disallow maintenance on the ground of adultery of wife.

Case laws Referred:

Under Vinod Kumar V/s. Kaushalya, I (1996) DMc 603 Raj. – It is true that is suit for the divorced is decreed after the trial on the ground of adultery then the wife will not be entitled to get permanent alimony and maintenance U/sec 25 of the Hindu Marriage Act 1955 because adultery  alleged against her is proved.

On 15^th Nov 2013 a local Mumbai court on Friday rejected a 38yr old south Mumbai woman’s plea for maintenance from her estranged husband after it found out that she was involved in the adulterous relationship.“The wife who engaged herself in (an) adulterous activity cannot be allowed to take advantage of her own wrongdoings,” the court said while accepting the 40yr old husband’s plea seeking divorce on the grounds of cruelty and adultery.

Conclusion

As per the above mentioned sections and the facts and the circumstances referred it states that a husband cannot be made liable to pay alimony if the wife’s adultery is proved under the court of law. Therefore in Order to constitute a claim for the right of maintenance wife must be cleaned handed, she must be pure enough to claim for the maintenance as per the rules and regulations stated in the previously mentioned sections.

This article is written by Tanya D’souza, a student of Ambedkar University.

Abstract: In the past few years the LGBT community has been making the headlines quite often, be it because of the Supreme Court judgement on section 377 of the IPC or because of the most recent NALSA judgement about the legal recognition of the third gender in India.

The LGBT communities all around the world have been in a constant battle against the discrimination they face on a daily basis. In the west the LGBT movement, had emerged “with and out of the women’s movements, foregrounded the idea of pleasure, the LGBT movement here really came into existence piggybacking on the AIDS crisis and articulated itself necessarily in the languages of crisis, violence and remedial action , not pleasure.”(Tellis: 2011) Even though in the academic filed sexuality was shown to be embedded in various discourses it wasn’t accepted or understood by the state. Also no debate about sexual desire has ever come up with sexual agency as the base.

In this article I will try to trace answers to a few questions that may come to our mind when we are made familiar with these laws. Questions like-Was it a valid decision? Is being homosexuality unnatural? What role does religion play in the perception of homosexuality? While criminalizing the act of homosexuality and calling it unnatural, are we not indirectly going against the very law of human rights and equality?  While we keep talking about India’s continuous growth and development as a county, we must also sit back and think to ourselves, is it just enough to be developed in terms of science, economy and infrastructure? What about bringing about change in the mindset of the society towards issues like that of section 377?

Background

Not many people were familiar with the section 377 of the Indian Penal code till the recent movement that took place on a large scale in order to repeal it. This struggle has been a long one, Section 377 dates all the way back to 1861, during the British rule in India when any sexual activities that went “against the order of nature” was criminalized including homosexual acts. The concept of what is natural and what is unnatural in itself can be looked at as a problem. Just because some people have different preferences, does it make them or their choices unnatural?

Section 377, IPC reads as:

“377. Unnatural offences.— Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

On 2^nd July 2009 the High Court of Delhi declared gay sex legal, with respect to sex between consenting adults, but on 11^th December, 2013 the Supreme Court went back to the old constitution and reinforced section 377. Despite all the government petitions to review and drop the ban on gay sex the apex court refused to do so and stuck to their verdict. One wrong judgment put to test all the hard work invested by the LGBT activists in order to spread awareness regarding the topic and also to liberate hundreds of individuals who identified themselves as a part of the LGBT society.

 Ever since the Supreme Court came out with such an unfair verdict there has been a lot of discussion and debate regarding this topic across the globe. In many parts of the country the LGBT society protested against this verdict by organizing various peace walks and pride parades in order to create awareness regarding this subject. These pride parades included not just homosexual people but also many heterosexual people who felt that this was a wrong step taken by the Supreme Court.

Effects of section 377

Poulomi Banerjee in her article shows us how this verdict has become a menace for many people who belong to the LGBT society and gives us accounts of many such instances. She tells us about a transgendered individual from Kolkata who was ill-treated and insulted by people from his neighborhood. While he “was returning home… some people on the street threw eggs at him. A day or two earlier, a group of approximately seven men from the neighborhood had blocked his way, demanding to know how much they would have to pay him in return for sexual favors” (Banerjee, 2014). This is something many homosexual people face on a daily basis. And what are they supposed to do about it? Go to the police? Well they can’t, because the police themselves harass them and misuse the law. “There have been cases where two boys were seen holding hands or kissing and been harassed by the police. They either beat them up or threaten them with arrest and demand money to let them off. Demands for sexual favors in return of non-prosecution are also common,” says Kolkata-based activist Pawan Dhall, as accounted by Banerjee in her article.

It’s sad to see that while on one hand we have people coming forward and taking part in the awareness campaigns and resent the Supreme Court’s judgment, on the other hand there are still many people who believe that having any other sexual orientation except that of a heterosexual is unnatural and not just against nature, but against the will of God. There are a number of people who believe that the Supreme Court has made the perfect decision and it that their decision couldn’t get any better. An article published by the Hindustan Times quotes the general secretary of the All Indian Muslim Personal Law Board, Mr. Abdul Raheem Quraishi as saying, “We know that homosexuality is against nature…it goes against all its laws and it is what led to the spread of HIV/AIDS” (HTC & AFP, 2013).

While the justification for this judgment given by many is similar to that of Mr. Quraishi regarding HIV/AIDS one must also remember that HIV/AIDS is not only a problem among homosexuals. Putting an end to oral and anal sex is not going to stop HIV/AIDS from spreading. Anyone who has unprotected sexual intercourse (not just oral and anal but also peno-vaginal) with an infected individual is susceptible to HIV infection. In fact “The United Nations Development Programme on HIV/AIDS had argued in 2008 that decriminalizing homosexuality would help India to combat the spread of HIV/AIDS which affects an estimated 2.5 million people here.”(HTC & AFP, 2013)

More than being a way to keep AIDS away section 377 is more to do with the prevalence of How does one call this judgment fair if a section of people are treated so badly just because of difference in choice? What happens to the right to equality and freedom of choice? The 377 verdict seems to have simply ignored even the basic human rights of Article 14 and 15 of the constitution that guarantees every individual the right to equality and prohibits discrimination of any kind based on caste, sex, religion, race or even place of birth. If two individuals mutually consent to indulge in gay sex, why should anyone have a problem with it? This is another contradiction as Article 21 of the constitution guarantees an individual the right to freedom, privacy and personal liberty, hence guarantying protection of intimate sexual relationships, between consenting adults, from any intrusion of the state legislation. The Supreme Court seems to have kept a blind eye to these rights. Yes, it would be a horse of a different color if one individual was forcing another into the act, and that in all senses could be considered rape as well.

Does Section 377 only effect the LGBT Community?

Section 377 states that anything but heterosexual sex is “against the law of nature” hence against the law. Terming sexual acts like anal sex and oral sex as “gay sex” or “homosexual acts” is another problem. Banerjee in her article quotes Ashok Row Kavi, (activist and chair of the Humsafar trust-a homosexual community based organization) saying “A study conducted by the Family Planning Association of India has found that a good number of heterosexual couples in India engage in anal sex. So, under provisions of section 377, they too can face criminal proceedings” (Banerjee, 2014). So how can we term such sexual practices as being “gay” or “homosexual” when there are large numbers of heterosexual couples who indulge in such sexual practices? In other words it’s not just the LGBT society being targeted by this law it seem like the Supreme Court is out to change the whole idea or practice of sex among the citizens of India no matter what their sexual orientation is. India is known as the country of Kamasutra, in which oral sex and various other styles of sex are described in detail but now according to 377 any sexual act that is not peno-vaginal is a crime.

While some may say, “Section 377 does not criminalize homosexuality. You cannot be arrested for being gay. But you can be arrested for engaging in non-peno-vaginal sex,” (Banerjee, 2014) for some people this may be satisfactory unless they realize that the whole point of this fight against 377 is that, it is not just about sex, “There is a close link between the act and the identity” (Banerjee, 2014). If any two people are in a relationship and wish to have an intimate relationship under mutual consent, shouldn’t they have the free will to have the sort of relationship they want? For those who say that this judgment is valid on the basis on religion and culture, should realize that even God is said to have given humans the free will to choose their own lifestyle.

For many years homosexuality had been considered to occur in an individual due to being a part of wrong environmental influences. There also was a point in time when homosexuality was considered to be a mental illness/disease even by the American Psychiatric Association, but sometime in 1973 they removed homosexuality from the diagnostic and statistical manual of mental illnesses. But many people till date live with the impression that homosexuality is an illness. In the recent past we have witnessed many ministers and government officials who wish to open rehabs for homosexuals, so as to “fix” their “problem” for the “betterment” of society.

It has been scientifically proven that an individual’s sexual orientation does not take shape due to environmental influences. While environmental influences may help reveal the true sexual orientation of a person, the fact remains that an individual’s sexual orientation is determined during gestation and is fixed by the time of birth. Hence environmental factors cant simple change an individual’s sexual orientation unless that individual already had an inkling of having a different sexuality at birth itself. We should educate ourselves and others with such knowledge and facts, so that all these old concepts are abolished and awareness is created among people to be able to step out of this antediluvian mindset. For such old, unrealistic and unscientific perceptions and taboos only cause hate and violence.

In Banerjee’s article it has very rightly pointed out how anyone can take advantage of this law and misuse it. “Section 377 gives anybody, be it family members or neighbors who disapprove of a homosexual relationship, the opportunity to call the cops and claim to have witnessed anal or oral sex and the police will have to file an FIR,” says lawyer Anand Grover, who had represented the Naz Foundation (the NGO whose petition had led to the landmark Delhi HC verdict in 2009) at the Delhi HC and SC” (Banerjee, 2014). Even though there will be a proper proceeding that will follow up later and medical examination is needed as poof, to prove an individual guilty, but isn’t being dragged to the police station humiliating enough? And enough of embarrassment for a person to be made to hang their head down in society, that too just because of difference in choice.

Ashley Tellis very rightly points out that, “The next step is to rebuild the earlier movement against section 377 and every other form of violence, legal and non-legal, against LGBT communities. The Delhi high court order did not call for the repeal of 377 nor did it address any of the issues that actually affect poor and marginalized LGBT communities across the country” (HTC & AFP, 2013).

The NALSA Judgment- a ray of hope?

The National Legal Services Authority (NALSA) filed a petition in 2012 to the Supreme Court, asking for equal rights and legal recognition of transgendered individuals as the third gender. They believed that the non-recognition of gender identity of the transgender community violates the fundamental rights guaranteed to the transgendered individuals, who are citizens of this country.

Due to non-recognition the transgender community lacked access to the most common rights that every other so called “normal” citizen possesses. They were denied the right to vote, the right to own property and the right to claim formal identity through any official documents such as a passport or driving license. Further they also faced discrimination to contest elections, employment and were treated as untouchables. All this merely because most of the legal documents needed to avail any of the above ask to specify the gender of the applicant. And the form only consists of two options in the gender category i.e. male and female.

Now with the NALSA judgment in place, it has been declared that, “transgender persons have to be declared as a socially and educationally backward classes of citizens and must be accorded all benefits available to that class of persons, which are being extended to male and female genders. Learned counsel also submitted that the right to choose one’s gender identity is integral to the right to lead a life with dignity, which is undoubtedly guaranteed by Article 21 of the Constitution of India. Learned counsel, therefore, submitted that, subject to such rules/regulations/protocols, transgender persons may be afforded the right of choice to determine whether to opt for male, female or transgender classification.”[1] The Judgement also broadened the meaning of the term ‘sex’ which always meant male or female biological sex in Articles 15 and 16, and have now included ‘psychological sex’ and/or ‘gender identity’ to it.

This judgement comes across as a ray of hope to many individuals who have been struggling over the years with being able to identify themselves by the gender they relate to, be it female, male or third gender. The selection of gender is now based upon the individual’s choice, irrespective of medical and surgical intervention. Not just this, the Supreme Court under article 19(1) (a) of the constitution declared the protection of an individual’s gender expression allowing no restrictions on an individual’s personal appearance and choice of dressing.

Contradictions

The NALSA judgement enfolded both gender identity and sexual orientation within its transgender definition. Significantly, kothis were included in the transgender category, with the Court also acknowledging that they exhibit “bisexual behavior.” The Supreme Court recognized that gender identity might also be expressed through mannerisms, not merely dress and speech.

Even if Section 377 were interpreted to criminalize an act rather than an identity, the NALSA judgment’s definition of “transgender” raises the question of how transgender persons, particularly kothis, may be accorded a gamut of rights under the NALSA judgment when 377 infringes on their “mannerisms” and other elements of their “bisexual behavior.” Sexual orientation cannot be separated from Section 377; preventing individuals with non-hetero-normative sexual orientations from engaging in sexual activities is no different than preventing transgender persons from engaging in sexual activities of their choice.

Conclusion

The Supreme Court’s verdict on section 377 is not just biased, there is nothing substantial enough to prove section 377 to be correct neither morally nor scientifically. This judgment seems to have been passed on the basis of homophobia, rather than the betterment of the society as a whole. While we talk about adopting modern methods and working towards a united, well-developed country, here we stand fighting for rights of a section of society that has been refused basic human rights just because they are a minority and have different views and lifestyle preferences. We must realize that the NALSA judgement’s legal declaration of a gender identity is not the end of the battle towards equality among the LGBT community, but is just the beginning. Hopefully this judgement will stop the atrocious practices of ill-treating transgender persons and subjecting them to offensive and intrusive procedures, and will also be a reason to rethink and rework section 377.While this may be a step forward towards the betterment of the transgender community, let’s not forget that the lesbian, gay and bisexual communities are yet to granted their share of rights.

Our country has a large number of minorities and just like they have the right to live the way they want, the LGBT society should be granted the same freedom. It’s high time we as a country adopt methods of inclusiveness instead of segregating minorities due to such differences and individual preferences.

References and work cited

• Banerjee, Poulomi: “Decoding section 377: How the verdict erased basic human rights”, Hindustan Times, New Delhi: Thursday, February 20, 2014.

Link– http://www.hindustantimes.com/StoryPage/Print/1165215.aspx?s=p

• Harvey, Nick (2008): India’s transgendered – the Hijras; published in the New statesman magazine. Link – http://www.newstatesman.com/world-affairs/2008/05/hijras-indian-changing-rights
• Hossain, Adnan (2012): Beyond Emasculation- Being Muslim and Becoming Hijra in South Asia. Asian studies Review, 36:4, 495-513.
• HT Correspondent & AFP: “Supreme Court says sex illegal, govt hints at legislative route”, Hindustan times, New Delhi, December 11, 2013. Link– http://www.hindustantimes.com/india-news/supreme-court-says-gay-sex-illegal-govt-hints-at-legislative-route/article1-1161395.aspx
• Roshanabadi, Qamar (1999): Facing the Mirror: Lesbian writing from India, edited by Ashwini Sukthankar, Penguin Publishers.
• Tellis, Ashley(2011): ETHICS, HUMAN RIGHTS AND THE LGBT DISCOURSE IN INDIA, chapter 12 , Applied Ethics and Human Rights- conceptual analysis and contextual applications, ed. Shashi Motilal
• http://articles.economictimes.indiatimes.com/2013-12-15/news/45191798_1_lgbt-community-delhi-high-court-supreme-court/2
• http://supremecourtofindia.nic.in/outtoday/wc40012.pdf
• http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070
• https://en.wikipedia.org/wiki/Section_377_of_the_Indian_Penal_Code
• http://www.lawyerscollective.org/vulnerable-communities/lgbt/section-377.html
• http://www.lawyerscollective.org/updates/supreme-court-recognises-the-right-to-determine-and-express-ones-gender-grants-legal-status-to-third-gender.html
• http://www.indiatimes.com/news/sports/shameful-an-indian-athletes-uphill-fight-for-dignity-235024.html

[1] As sited in the Judgement http://supremecourtofindia.nic.in/outtoday/wc40012.pdf

This article is written by Divya Kathuria, a student of Raffles University.

What is project management?

When one reads this term, the first question that generally comes into everyone’s mind is why we are talking specifically about the management of project. The answer is even simpler than the question. Project can be defined as a venture being carried on by any enterprise which has a particular aim and it starts with keeping the aim in mind and ends as soon as the goal is accomplished. So, as the project is specific and special, its management needs to be done by skilled professionals and experts of the particular field.

Project management is the process through which a particular activity under the project is initiated, planned, organized and achieved in order to finally reach the goal or aim for which the project was ventured. It includes initiation, execution, monitoring & controlling (how it is being executed) and in turn, also executing the monitoring and controlling of all activities and finally, closing the project after the goal has been reached. Project management is actually very necessary to let the project reach its end, it would not be wrong if I say, it is necessary to turn the dream into reality. It is needed for both temporary as well as unique kind of projects.

Management is simply the technique of understanding the shortcomings of a thing; needs and controlling the use of resources, saving time and costs, scope and quality. The same is for project management. Application of the skills and knowledge of a project manager in project activities in order to meet the needs of stakeholders and expectations from project is nothing but the duty of a project manager. It is also necessary for the completion of project within the decided time limit without compromising on the quality of output.

Need of project management and role of project manager

1. To define the project and agree with the customer: – it is the responsibility of a project manager to define the project and its benefits to the interested parties that is, clients or customers. It is his duty to ensure whatever the customer wants or needs or expects through project gets it at the end of the deadline for closing of project.
2. Control scope creep and manage change: – in every kind of project, there are always possibilities involved that some of the other terms of the project are changed or need to be changed may be sometimes, due to unavoidable situations and sometimes, on the insistence of parties. To manage such changes and to ensure if they need to be done and how much, project managers play their part. He needs to deeply access that such changes do not prove fatal to the enterprise anyway.
3. Deliver project results on time and on budget: – Project manager has to ensure that the team works properly for the project and the project is not just finished within time but also, it is completed within the given budget. Otherwise, the company may have to suffer losses.
4. Provide a process for estimating project resources, costs and time: – this is one of the most important tasks handled by project managers and requires skill and expertise. Before deciding whether to undertake a particular project or not as to if it’ll be beneficial or not, it is always upon project managers to estimate the cost and time project will take and decide if it will help the organization or not. Also, after estimating if the enterprise has particular resources to attain the goal only, the institution can go for the project.
5. Communicate project accomplishments, risks and changes: – as the project goes further, the stakeholders must be informed about each and everything regarding it like progress, any losses, any changes, requirements, resources used, etc.
6. Prepare for unexpected issues: – everything will never run as smooth as it is estimated by the project manager. So, it is his responsibility to consider some extra space for such situations that can arise anytime and can’t be estimated beforehand such as changes in business cycle, sudden changes in market forces, even natural calamities, etc. need to be taken into account by an efficient manager of projects.
7. Reviewing: – after the last stage of project is accomplished, an efficient project manager would access how well they had done on each stage of project and what were the drawbacks and would generally record them and try to avoid them in his further projects that he undertakes.

The negative side of project management

1. Micromanagement: – it usually happens that with all the focus of product managers on completing the work before deadline given and within particular resources, the quality is overlooked. The whole project manager team and manager himself focus themselves only on a preset outcome with quite strict parameters.
2. Miscommunication costs: – even a little miscommunication can lead to great losses. For example, if one phase of workflow development is misconstrued and sends a portion of the team down the wrong path, not only does the team have to reverse direction, but they halt progress in subsequent phases of the project as well. Clear communication guidelines should be issued to ensure timely and accurate transmission of new, information and project updates to protect against missteps.[1]
3. Lacks creativity: – sometimes, strict project management with strict policies and guidelines can lack an innovative thinking which can even be better for completing the project may be with lesser efforts and costs. It is often observed that because of being struck to particular norms of accomplishing the project, people involved stop thinking out of the box that can even be faster too. However, this is not the case every time.

Legal issues with Project management:

1. Risk Insurance: – When a project is initiated, there are obviously certain risks involved. Not only accessing these risks is important, but creating ways to overcome these risks while incorporating them in contract is equally important.
2. Project contract: – A project will always include numerous contracts. The drafting of the project contract includes the most of lawyer’s contribution. While contracting, he would have to go through the nature of obligations that would arise from the contract and also, the evolution of agreements whilst making business-related decisions. After he is done with the contractual phase, the lawyer needs to deal with the post-contractual phase as well. The post contractual phase will include his’ and party’s hidden obligations which he needs to analyze and perform.
3. Change control: – A contract for project when proposed must also include a procedure for change in the contract including the conditions of change and sometimes, listing of the situations only in which the changes can be made. However, any kind of change in the contract terms is highly discouraged. After the changes are made, they must be documented concretely and also numbered for future needs that may arise.
4. Imposing restrictions: – In a project contract between two parties, it is common that the restrictions would be imposed on party by another. It is the duty of the lawyer to check that the restrictions are in consonance with Section 27 of the Indian Contract Act, 1872 which states that “Every agreement by which anyone is restrained from exercising lawful profession, trade or business of any kind, is to that extent void”. However, exception to this can be like not revealing secrets of the company to prevent exercise of insider trading, etc. and to preserve the goodwill of the Company.
5. Interpretation of Contract: – Any law would include the interpretation part as it is the only way to understand it. The very first part of interpreting any contract is its recitals. The introductory part of a contract is usually referred to as ‘recitals’. Further, in a contract, there are certain things which are explicitly provided while certain are implied. Certain terms of contract are clear while certain are tacit and it requires legal expertise to understand the tacit terms and work as per those. Thus, the interpretation of contract is as important as making the contract itself.

1. Reprisal of issues by Arbitration or mediation: – It is quite important to include arbitration or mediation clause in the project contract. In case of small disputes between contracting parties, one cannot always approach the Court for that, then the cases would last till eternity and it would become impossible to accomplish the project. Also, it must be added that which law would govern either parties in cases like, if both the contracting parties are foreign entities or either of them is and such other cases. It is also vital to decide the jurisdiction beforehand in case anyone approaches the Court.

Conclusion

Project management is an excellent method to deal with the different tasks in an organization. We don’t realize but, even in our everyday tasks, we use the skills of project manager depending upon what we are dealing with. It is nothing, but a framework to reach a particular aim which may include, studying for your exams or managing the project of an MNC. All the projects are different in entirety but, all will start with an idea. Starting, analyzing, executing, controlling and concluding any type of project includes the knowledge and expertise in that particular field. However, in case of companies, one man that is must in project management is a legal expert.

[1] http://www.ehow.com/info_8774906_describe-advantages-disadvantages-project-management.html last visited on 22nd July, 2015

This article is written by Shourya Bari, a student of Jindal Global Law School.

The Indian Constitution provides for enforcement of Fundamental Rights in the Supreme Court of India under Article 32.[1] Fundamental Rights can be enforced only against a state, as defined in Article 12[2] of the Constitution. Article 12 concludes the list of authorities falling within the definition of state referring to the phrase ‘other authorities’ within the territory of India or under the control of the government of India. The Indian judiciary for the last five decades has strived towards laying down the ambit of the phrase ‘other authorities’ through extensive interpretation.

Until Rajasthan State Electricity Board, Jaipur v. Mohan Lal[3] was decided, several High Courts were of the opinion that since in Article 12 ‘other authorities’ is mentioned after specifying all other authorities which would be a state, namely the Government and Parliament of India, the government and the legislature of each states, and all local authorities; it would be reasonable to construe the expression ‘other authorities’ ejusdem generis with government or legislature.[4] Following such construction, ‘other authorities’ would only include such bodies functioning on or behalf of the union or state governments. The Supreme Court in the Rajasthan case rejected this restricted interpretation, and held that the doctrine of ejusdem generis is inapplicable to the interpretation of ‘other authorities’. The court said that there was no distinct genus or category running through the bodies already named, and those bodies could not be placed in one single category on any rational basis. The Supreme Court in its maiden expansion of the scope of Article 12 included all authorities created by the constitution or statute on which powers are conferred by law.

In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi[5], the Supreme Court decided the question whether statutory corporations came within the definition of state. The court held statutory corporations to be a state under Article 12. The Supreme Court noted that the kind of function performed by the body was a crucial factor to determine whether it was a state.     

R.D Shetty v. International Airport Authority of India[6] and Ajay Hasia v. Khalid Mujib[7] laid down certain factors to ascertain whether a body was a state. One such factor was whether the functions of the corporation are of public importance and closely related to government functions. The Supreme Court’s emphasis on the function approach is evident in Justice Bhagwati’s opinion, that the enquiry to decide whether a body is a state or not must not be how the juristic person was born, but why it was brought into existence.

As elucidated above, the Supreme Court starting with the Rajasthan case[8], in a series of judgments has expanded the scope of Article 12 through a purposive interpretation of the phrase ‘other authorities’. They have substantially relied on the ‘public function’ approach by examining the functions performed by an authority in question and the reason why it was brought into existence. However, the last decade has witnessed a restrictive approach to the interpretation of ‘other authorities’. In  Pradeep Kumar Biswas v. Union of India[9], a seven judge bench held that in order to declare a body to be a state, the state or union government must have deep and pervasive, financial, functional and administrative control in that body. Zee Telefilms v. Union of India[10] relied on this principle to declare that BCCI was not a state. The present restrictive approach revolves around a principle, which requires ample government control in a body to declare it to be a state; and excludes the legal reasoning which focuses on the nature of functions discharged by a body instead of the source of its ownership or control.

The adoption of such a restrictive approach based on government control is fundamentally problematic. A bare reading of the text of Article 12 does not say that ‘other authorities’ must necessarily be under the control of the government. The word or used in Article 12 is disjunctive and not conjunctive.[11] Therefore, the restrictive approach in Pradeep Kumar Biswas[12] almost amounts to a misinterpretation of Article 12.

However, this stands as the Indian jurisprudence and legal position on the interpretation of ‘other authorities’ in Article 12. In the backdrop of such a legal position, this post argues in favor of including private Internet Service Providers within the legal contours of ‘other authorities’. The arguments supporting such a contention will substantially rest on the ‘public function’ approach.

The first legal obstruction in applying the ‘public function’ test is the deviation of a seven judge bench in Pradeep Kumar Biswas[13] from such an approach. However, this particular precedent’s binding nature can be questioned while deciding the question, whether private Internet Service Providers are a state or not. Justice S. B Sinha, in his dissenting opinion in Zee Telefilms[14] notes that a decision is an authority for the questions of law determined by it; and such a question is determined having regard to the factual circumstances of the decision. Pradeep Kumar Biswas[15], only decided the question, whether the judgment in Sabhajit Tewary v. Union of India[16] was correctly rendered or not. Therefore, the facts of Pradeep Kumar Biswas[17] are completely different from the question the post seeks to answer and the decision is not absolutely binding. More importantly, the ‘public function’ approach finds support in several other Supreme Court judgments such as Sukhdev Singh[18], R. D. Shetty[19] and Ajay Hasia[20]. The apex court, among several other factors considered the functions performed by corporations to decide whether they were a state or not. The post takes considerable aid of the judicial reasoning in these judgments to support its contention.

The ‘public function’ approach has been adopted in international judicial decisions and legislations as well. In Marsh v. Alabama[21], the United States Supreme Court had held that, a corporation when privately performing a public function is held to the constitutional standards regarding civil rights and equal protection of the laws which apply to the state itself. Section 6 (3) (b) of the United Kingdom Human Rights Act, 1998[22] provides that an authority subject to human right obligations, includes any person whose functions are functions of a public nature. Accordingly, Fundamental Rights can be enforced against private corporations as well, provided they are discharging a public function.

The next important question the post seeks to answer is what constitutes public function and whether Internet Service Providers discharge a public function. The First argument in this post also encompasses a response to the question, why private Internet Service Providers should be brought within the ambit of Article 12 and Article 32 in the first place.

The right to freedom of speech and expression also includes the right to educate, the right to inform, and to entertain, and also the right to be educated, be informed, and be entertained.[23] This right is equally applicable in all forms of communication media, including the internet. Article 19 of the ICCPR[24] protects all forms of expression, and the means of their dissemination, including all forms of electronic and internet based modes of expression. Thus the fundamental right to freedom of speech and expression is guaranteed while communicating through the internet.[25]

Rule 3 of the Information Technology (Intermediaries’ Guidelines) Rules, 2011[26] equips the Internet Service Provider which is an intermediary, to censor content, before publication and once content has been publicly made available online. Internet Service Providers are so situated that they can block any content on the internet.[27] Thus, while discharging their functions private Internet Service Providers can regulate and restrict freedom of speech and expression on the internet, which is a guaranteed fundamental right available to the general public.[28]

In a globalized modern world, numerous trade ventures are undertaken in the internet. Such trading has led to the development of what is known as the ‘Internet Economy’.[29] India is also a major stakeholder of this economy. A citizen can utilize the service offered by an ISP, and exercise his fundamental right to freedom of trade. ISPs are so situated, that they can restrict access to lawful content on the internet[30], and if that content happens to be a part of an online trading system, they can effectively regulate a citizen’s fundamental right to practice any trade or profession.

Therefore, the phrase ‘other authorities’ should be liberally interpreted to include private Internet Service Providers within its ambit. This is necessary in order to prevent Internet Service Providers from violating fundamental rights.

In order to ascertain whether a private body is discharging a public function, two major conditions among others must be fulfilled. Firstly, when it regulates the right of a citizen contained in Article 19(1) (a)[31] of the constitution of India available to the general public. Secondly, when a private body regulates a profession or vocation of a citizen which is a fundamental right under Article 19 (1) (g), its functions are deemed to be public functions.[32]

As demonstrated, private Internet Service Providers regulate the fundamental right of a citizen to freedom of speech and expression and the fundamental right to freely practice any trade or profession. As per the principles furnished, any person which regulates or restricts fundamental rights of a citizen in the course of its functioning is discharging a public function and should be amenable to fundamental rights obligation.

In Edmonson v. Leesville Concrete Company[33], the United States Supreme Court had held that a private body while discharging a function traditionally and exclusively reserved to the state is discharging a public function and is subject to fundamental rights obligation.

Traditionally, the duty to provide internet service in India was vested exclusively in the hands of the government, owing to the monopoly of the government in the telecommunication sector[34]. The telecommunication sector was opened to the entry of private corporations only in November 1998. The private Internet Service Providers in India today discharge a function which was initially performed only by the government. Following the principle in the Edmonson case, it is further argued that private Internet Service Providers are discharging a public function and fundamental rights are enforceable against them.

The phrase ‘public functions’ has been debated previously in Indian jurisprudence. The phrase has been described to be imprecise and general in nature.[35] In order to interpret an imprecise and general term, this post adopts a rule suggested in YL v. Birmingham City Council[36]. The rule suggests a close scrutiny of policy documents of the government as a method of interpreting anything imprecise and general in the legal context.

The post closely examines the National Telecom Policy of 2012[37] and Broadband Policy of 2004[38]. In these policy documents, the government has recognized the potential of ubiquitous broadband service in societal applications such as tele-education, tele-medicine, e-governance, as well as generation of employment by way of high speed access to information and wed based communication. The government considers it necessary to install fibre optics technology, which provides unlimited bandwidth potential. Out of the 4.5 lakh km of optical fibre laid down in this country, only 1 lakh km is owned by private internet service providers and the rest is owned by government.[39] The spread of networks of private ISPs will play a crucial role in achieving the objective of the government, of bringing optical fibre to homes and rural areas. Private Internet Service Providers are expected to focus on it.

Internet service seeks to enhance welfare of the public. National Telecom Policy- 2012[40] recognizes the predominant role of private ISPs, in furthering the prerogative of the government of increasing affordable access to broadband services all over India.  The National Telecom Policy- 2012[41] recognizes broadband connectivity as a basic necessity and is working towards creation of a right to broadband.[42]

From a perusal of these major policy documents of the government, it is submitted that the function discharged by private Internet Service Providers is not merely commercial in nature. The functions performed have an aim of public welfare, through the growth of internet services across the country.  The government seeks to create a right to broadband for its citizens and private Internet Service Providers have a crucial role to play to achieve that end. The functions private Internet Service Providers are of immense public importance as it caters to a basic necessity and are means of accomplishing governmental objectives. Therefore, private Internet Service Providers discharge public functions.

A major factor considered by Indian courts to determine whether a body is a state or not is the degree of governmental control or regulation. According to Black’s Law Dictionary[43], the meaning of the word control includes regulation as well. Therefore, a high degree of government regulation would amount to exercise of government control.

Private Internet Service Providers are highly regulated by the government. It has to obtain a license under Section 4 of the Indian Telegraph Act[44] to even initiate its operation. The quality and nature of services offered by a private Internet Service Provider, including the minimum speed at which it is supposed to provide access to the internet is governed by The Telecom Regulatory Authority of India Act, 1997. [45]Section 6A of the Information Technology Act, 2000[46] bestows upon the government, an authority to issue orders to Internet Service Providers to upgrade their services and perform other functions in the interest of the public. The functions of private Internet Service Providers are extensively regulated in the light of public interest. Therefore, private Internet Service Providers fulfill the major condition of high government control required in Indian jurisprudence, to be declared a state.

Those against the argument made in this post may cite the Jatya Pal Singh v. Union of India[47] judgment to support their opposition. Jatya Pal Singh held that VSNL does not discharge any public functions and is not a state as per Article 12. However, the Jatya Pal Singh[48] judgment can be distinguished from the arguments made in this paper. The function of VSNL is restricted to with respect to making telephone calls abroad. The scope of functions of an Internet Service Provider is much wider than that of a telephone service provider. Therefore, the Jatya Pal Singh[49] case will not negate the arguments raised in this post.   

There is a presumption that Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes which have occurred since the Act’s passing in law, social conditions and technology.[50] Internet Service Providers occupy a position of utmost importance today, effectively controlling every sphere of life. The framers of the constitution did not envisage such a drastic change in technology. However, courts today are required to accord an interpretation to the law in question, which will prevent abuse of fundamental freedoms by corporations which occupy a position by virtue of which they can violate fundamental rights.

Internet Service Providers are an unique example of such a corporation. They discharge public functions which were exclusively reserved to the state initially, cater to a basic necessity as per government policy, regulate fundamental rights, and are highly regulated by the government. Therefore, the courts should recognize these extra ordinary features of an Internet Service Provider, liberally interpret the phrase ‘other authorities’ and include private ISPs within its ambit.

[1] The Constitution of India.

[2] Ibid.

[3] A.I.R 1967 SC 1857.

[4] University of Madras v. Shantha Bai, A.I.R 1954 Mad 67.

[5] (1975) 1 S.C.C. 421.

[6] (1979) 3 S.C.C. 489.

[7] (1981) 1 S.C.C. 722.

[8] Supra note 3.

[9] (2002) 5 S.C.C. 111.

[10] (2005) 4 S.C.C. 649.

[11] Ibid.

[12] Supra note 9.

[13] Supra note 9.

[14] Supra note 10.

[15] Supra note 9.

[16] (1975) 1 S.C.C. 485.

[17] Supra note 9.

[18] Supra note 5.

[19] Supra note 6.

[20] Supra note 7.

[21] 326 U.S. 501.

[22] United Kingdom Human Rights Act, 1998.

[23] Secretary, Ministry of Broadcasting and Information, Government of India and Ors. v. Cricket Association of Bengal and Ors., (1995) 1 S.C.R. 1036.

[24] International Covenant on Civil and Political Rights, 1966.

[25] Ajay Goswami v. Union of India, (1998) 1 S.C.C. 226.

[26] Information Technology (Intermediaries’ Guidelines) Rules, 2011.

[27] R.K Productions v. BSNL, (2012) 5 L.W. 626.

[28] Supra note 25.

[29] Broadband and the Economy, Ministerial Background Report, 8-9 May 2007.

[30] Beyond Denial: Introducing Next Generation Information Access Controls, 4-7, 2010.

[31] Supra note 1.

[32] Supra note 10, See Also: Daniel Lee v. Vera Katz, 276 F. 3d 550.

[33] 500 U.S. 614.

[34] National Telecom Policy 2012.

[35] Black Diamond Beverages and Anr. v. Commercial Tax Officer, Central Section, Assessment Wing, Calcutta and Others, A.I.R. 1997 SC 3550.

[36] (2007) U.K.H.L. 27.

[37] Supra note 34.

[38] Broadband Policy of 2004.

[39] Ibid.

[40] Supra note 34.

[41] Ibid.

[42] Supra note 34.

[43] Black’s Law Dictionary, 9^th Ed, 2013.

[44] Indian Telegraph Act, 1885.

[45] Quality of Broadband Service Regulations, 2006, Telecom Regulatory Authority of India Act, 1997.

[46] Information Technology Act, 2000.

[47] (2013) 6 S.C.C. 452.

[48] Ibid.

[49] Id.

[50] Francis Bennion, Statutory Interpretation, pg – 762, 4^th Ed.