This article has been edited and published by Shashwat Kaushik.
Table of Contents
Introduction
Children in every civilised society hold a special place. They are the future of any family, country, and civilisation, as has always been acknowledged. It is also a fact that till they are young, of tender age, and are not in a position of taking care of their affairs, their family (parents/guardians) has the primary responsibility of care and well-being. In the absence of the primary institution of family, in modern times, society, through the apparatus of the state, holds this all-important charge. It is the endeavour of every civilised society to see their young realise their full potential, not only physically and mentally, but also become a responsible member of the society. The early years are also the ones when the children are the most vulnerable. They are impressionable as well as run the risk of being exploited in different ways, knowingly or unknowingly, by those with whom they tend to interact during the course of their activities. Given socio-economic conditions, the children get involved in various different activities detrimental to them. Recognising the perils the children are exposed to, protection of their rights against any form of exploitation has been enshrined under the Constitution of India as well as other statutes that hold the field. Together, the laws specifically enacted to protect the rights of children engaged in various walks of economic activity provide a legal framework to deal with this sensitive yet very important issue.
Children and entertainment industry
Child labour is prohibited in India. However, in certain areas of organised and unorganised economic activity, we find children being engaged to fulfil certain relevant tasks. This has statutory permission in India. The world of entertainment is one such area where, since its inception, engagement of the children has been conspicuous. Initially, the areas of the entertainment world consisted of live performances, like children performing acrobatics and other activities in a circus format, music and dance performances, acting in theatres and dramas, etc. However, with time and the development of technology, modes of expression and dissemination of entertainment expanded. The areas of entertainment traversed from the limited space of live performances through the radio waves and audio recordings (through gramophones) to first silent and then talking features and films. The next stage saw the evolution in the distribution of entertainment within our households via the medium of television broadcasting. Last but not least, we are in the era of information technology, which enabled the distribution of entertainment, information, news, and other forms of expression through the internet and platforms based on the internet. In every stage, the involvement of children has grown as participants and contributors in the growth of entertainment as an industry.
Vulnerability of children in the world of entertainment
In the captivating world of entertainment, where dreams take flight and imaginations soar, a poignant reality often goes unnoticed—the vulnerability of children who find themselves entangled in this captivating realm. The entertainment industry, with its allure of glitz, glamour, and fame, can cast a spellbinding illusion, concealing the potential risks and challenges that children face as they navigate this complex landscape.
From child actors to singers, dancers, and models, the entertainment industry presents children with unique opportunities to showcase their talents and pursue their passions. However, this exposure comes with a heavy burden. Children in the entertainment industry are often subjected to intense pressure, rigorous schedules, and relentless scrutiny. They may be required to perform complex tasks, memorise scripts, and meet demanding expectations, all while balancing their personal lives and educational pursuits.
The emotional toll on children in the entertainment industry can be immense. The constant pressure to excel and the fear of failure can lead to anxiety, depression, and low self-esteem. Children may also struggle to cope with the intense scrutiny and criticism that comes with being in the public eye. Moreover, they may face challenges in developing healthy relationships with peers and family members as they navigate a world vastly different from their own.
Furthermore, children in the entertainment industry are at increased risk of exploitation and abuse. Unscrupulous individuals may take advantage of their vulnerability and innocence, leading to sexual abuse, physical harm, or emotional manipulation. The lack of proper safeguards and regulations can leave children without adequate protection, making them susceptible to harm.
Recognising the vulnerability of children in the entertainment industry is crucial to safeguarding their well-being and ensuring their rights are protected. Several measures can be taken to address this issue. Stricter regulations and guidelines are essential to ensure that children are not subjected to excessive workloads, hazardous environments, or inappropriate content. Regular monitoring and oversight by relevant authorities can help prevent exploitation and abuse.
Additionally, providing children with comprehensive support systems is vital. This includes access to counselling services, educational opportunities, and mentorship programs. Creating a supportive environment where children feel valued, respected, and heard can help them cope with the challenges they face. Encouraging open and honest conversations about mental health and well-being can also help break down stigmas and promote early intervention.
Ultimately, the onus lies on all stakeholders in the entertainment industry to prioritize the safety and well-being of children. Production companies, talent agencies, casting directors, and parents must work together to create a nurturing environment that protects children from harm. By acknowledging the vulnerability of children in the entertainment world, we can take proactive steps to ensure that their dreams and aspirations are pursued in a safe and supportive manner.
Legal framework for protection of children’s (minor’s) right working in the entertainment industry in India
In India, the rights of the children engaged in the entertainment industry are protected under a legal framework. The violation of these rights is to be taken with the utmost seriousness. The legal framework regarding the protection of children’s (minor’s) rights, in general, is a layered one. The protection of the rights of the children (minors) engaged in the entertainment industry is a specific point in the case of protection and enforcement of these rights. The following is an insight into this multi-tiered edifice.
Fundamental rights enshrined in the Constitution of India
At the outset, we mentioned the basic rights of children in the previous section. The Constitution of India, in particular under Part III, dealing with Fundamental Rights, has long acknowledged these rights. These are inviolable rights. The following are the articles that specifically protect the rights of children, amongst others.
Article 21: Protection of life and personal liberty: This is the most basic human right that has been accorded and has been interpreted by the Constitutional Courts in India. This protects a gamut of rights, like the right to privacy and the right to conditions that make a child survive and develop with dignity, free of discrimination of any kind.
Article 21 A: Right to education: This right directs the state to provide free and compulsory education to all the children between the ages of six and fourteen. The education provided should be quality education and without any discrimination. Article 23: Prohibits traffic in human beings and forced labour
Article 24: Prohibits employment of children below the age of fourteen in hazardous occupations in factories.
Article 39(e) [Directive Principles of State Policy]: Specifically directs the state to the health and strength of not only grownups, men, and women but also specifically children.
Article 39(f): Directs the State to provide children with the opportunity to grow in a healthy manner, with freedom and dignity. Further directs the state to afford protection to the children against exploitation.
Thus, the first four of the above rights are inalienable rights that the children have under the constitutional scheme, while the last two of the list are guiding principles for the state to ensure the same. Further, the international conventions and charters on children’s rights that India is signatory to are also in sync with the ideas that the Constitution enunciates.
Statutory protection and regulation of the children’s rights in India
India has enacted and enforced some important laws for the protection and regulation of child rights, some of which are directed specifically to children engaged in the entertainment industry.
The Child And Adolescent Labour (Prohibition And Regulation) Act, 1986
This is the principal legislation for the protection and regulation of the rights of children, with a particular section dedicated to the children (minors) engaged in the entertainment industry in different ways. Some of the salient features are as discussed below.
The act initially held all those under the age of eighteen to be children and worked equally for all. However, with the amendments brought in 2016, in light of the children’s right to education being a fundamental right, and so amended the Constitution of India to that effect. This necessitated the classification of the minors into two groups. One, called children, and the other, adolescents. The former consists of those under the age of fourteen, while the latter consists of those between the ages of fourteen and eighteen. This change is reflected in the title of the act as well, which clearly spells out this change.
The act, in its present form, prohibits anyone considered a child from any work, while the adolescents are prohibited from working in any occupation considered hazardous as per the schedule of the act.
Section 3(b) and the explanations provided make a specific exception to the children and adolescents engaged in the entertainment industry. However, this is under the strict condition that the children’s fundamental right to education is not hampered in any way.
The act not only provides for the protection and regulation of rights of children and adolescents but also directs the state to accomplish this aim with measures as provided in Part III of the Act.
The violations under the act draw actions like fines and penalties as well as, in the case of repeat offenders, imprisonment as well.
The Act provides for financial support to those whose rights have been violated. This is done through the constitution of a Child and Adolescent Rehabilitation Fund under section 14 B of the act. This is in pursuance of the directions of the Supreme Court of India following the MC Mehta vs. State of Tamil Nadu.
The Commissions for Protection of Child Rights Act, 2005
To monitor and efficiently execute the protection guaranteed to the rights of children, under the provisions of the Child and Adolescent Labour (Prohibition and Regulation) Act 1986 and other laws in force for the protection of children’s (minors’) rights, this statute was brought into force in the year 2006. The following, in brief, are the key features of this legislation:
Section 3 of the Act directs the Central Government for the constitution of a body called the National Commission for the Protection of the Child Rights (NCPCR).
The NCPCR, as per Sections 13 and 14 of this Act, has powers to monitor, enquire, review, and recommend to the government or the authority liable to take necessary action where the protection of the rights of children is found wanting. Further, it can recommend corrective action in the instances where violations of the rights of children have taken place. It has powers to take suo moto notice of matters relating to the issues of child rights.
The NCPCR is at the central level; however, the Act provides under Section 17 for the creation of State Commissions as well with similar powers. The second important feature is providing speedy adjudication and trial of the matters relating to child rights. Section 25 of the Act provides for the constitution of the Children’s Court.
The NCPCR has issued detailed guidelines for the children and adolescents engaged in the entertainment industry.
Being a signatory to the Convention on Child Rights in 1992, India aligned its protection and regulation mechanisms to the requirements of the international convention using the provisions of this enactment.
The Juvenile Justice (Care And Protection Of Children) Act, 2015
This enactment is a comprehensive special legislation dealing with the children (defined as all those under the age of eighteen years) not only in conflict with law but to provide, to a large section of children whose rights have been violated or are in danger of being violated care, rehabilitation, reintegration into the society.
The interest of the children is the paramount aim of this act when resolving such conflicts through the process of law where children are involved.
This manner of adjudication keeps the mandate of the fundamental and constitutional rights of children enshrined under the Constitution of India but are also in line with the fulfilment of India’s obligations under the Convention on Child Rights which India acceded to in 1992.
This Act provides for a detailed mechanism for the adjudication and resolution of issues starting at the district level in each State. Also at various levels the mechanism ensures the interests of children in need remain above all. The Juvenile Justice Boards, the thorough requirement of the social investigation report.
The Protection Of Children From Sexual Offences Act, 2012
This is special legislation enacted to deal with the sexual abuse of the children. This is penal legislation and in case the accused are found guilty, they are to be dealt with in the most severe manner.
The Right Of Children To Free And Compulsory Education Act, 2009
This fulfils the requirements of the 86th constitutional amendment brought into the fundamental rights in 2002. This fundamental right, now enshrined under Article 21 A of the Constitution, mandates that the children under the ages of six and fourteen be provided free and compulsory education. The Right to Education Act 2009 was enacted to provide the statutory right corresponding to the fundamental right under article 21A.
NCPCR guidelines for the children in entertainment industry
These guidelines, in pursuance of the legislation described in the previous section, clearly provide how the children and adolescents involved in the entertainment industry should be catered to, including the procedure that needs to be followed. The production house engaging the child or adolescent should ensure the following:
The content should be appropriate for the child or adolescent to participate in, with the physical, mental and psychological level of development of the participant. In fact, it should not be detrimental to any of these aspects of the child.
Emphatic no to any content that is in line with child pornography.
No content with the children can be created that has any intoxicants or substances that can be abused, including tobacco, psychotropics or narcotic substances, and alcohol.
No participation can be forced on the child or adolescent without their will.
At least one of the parents of children should be present with them during the work. No travel arrangements be made without a parent or guardian accompanying the child.
The production should depute a responsible person per five children while the work continues to tend to their needs. All those who will be working with the children should be medically tested before.
The guidelines provide the hours that the child or adolescent can work for at a stretch. Regular breaks are given.
It should be seen that the children’s education is not adversely impacted.
At least twenty percent of what is earned by the child or adolescent through the production be deposited in their name in a fixed deposit account. This money is to be utilised for the child’s welfare.
These guidelines are applicable to not only audiovisual production through films and music, but areas like social media, news, and media, as well as advertising, fall under the scope of these guidelines.
The District Magistrate, through the deputed inspector, can have a periodic inspection of the work area and check if all the guidelines are followed. Failure to comply will attract penalties.
Before the production commences, the production house should have the child artist registered and provide all the details in the manner provided under the Form C Child Labour (Prohibition and Regulation) Amendment Rules, 2017.
Criticism
These guidelines, although exhaustive, have come under some criticism. Some of the experts have tried to bring the rigidity of these to the fore. Although the vires of these are yet to be tested, some have tried to argue that the NCPCR has not given the needs of the entertainment industry its due. Also, the multiplicity of authorities has somehow come in the smooth execution.
In the end, the children and minors are the future of any society. To safeguard their interests and welfare, a lot of steps through a strong and robust legal framework have been established.
This article has been written by Subrata Kumar Dash.
Table of Contents
Introduction
This is more vital today than ever in an interconnected world to understand financial reporting standards like US GAAP & IFRS. It is, therefore, more than just a technical exercise for businesses, investors, and financial specialists operating in the US to differentiate between US Generally Accepted Accounting Principles (GAAP) and International Financial Reporting Standards (IFRS). While IFRS has become the global accounting language used by over 140 jurisdictions across the globe. US GAAP is what governs financial reporting in the United States. These two frameworks—one being rules-based while the other principles-based—define how companies display their financial status to the world. In this article, we will examine some of these contrasts between US GAAP and IFRS to give an exclusive guide on their impact in worldwide business.
Key differences between US GAAP and IFRS
These differences are fundamental and have major implications for how businesses prepare, interpret, and compare their financial statements. Some of the most important ones are as follows:
Rules-based vs. principles-based
US GAAP: US GAAP is known for its rules-based approach, which provides detailed directions for almost any accounting scenario. This method’s advantage lies in its clarity: there are explicit rules for many situations, reducing ambiguity levels. However, this rigidity can lead to overly complex regulations and a ‘’check-the-box’’ mentality, where the focus may shift from the economic substance of transactions to mere compliance with the rules.
IFRS: On the other side, there is a principles-based approach that guides IFRS. IFRS does not give detailed rules but general principles that have to be interpreted and applied by companies according to the circumstances. This allows more flexibility, thus professional judgement, allowing it to be applied in various situations. Nevertheless, this can also mean that similar transactions are reported differently across companies if accountants make different assumptions.
An understanding of these distinctions is necessary because they reveal the true nature of US GAAP and IFRS. The precision and consistency of US GAAP are aimed at, while relevance and comparability across borders become important issues in this area of globalisation when dealing with IFRS.
Geographic application
US GAAP: US GAAP is mandatory for financial reporting in the United States and is regulated by the Financial Accounting Standards Board (FASB). It applies to all publicly traded companies in America. Even though it is primarily used in the US, it has significant international influence, especially where American companies operate or where there are substantial investments by American investors.
IFRS: On the contrary, IFRS is preferred in most of the world. Over 140 countries have adopted IFRS, including all member states of the European Union and many other nations in Asia, South America, and Africa. The International Accounting Standards Board (IASB) is the body responsible for developing and maintaining IFRS to have a single set of globally acceptable accounting standards that improve transparency, accountability, and efficiency in financial markets.
The wide acceptance of IFRS confirms its status as a universal accounting language that allows for more consistent and comparable financial reporting across borders. Crucially, multinational companies and global investors need to understand IFRS because it helps them engage in smooth cross-border transactions as well as enables reliable financial comparisons among companies located in different countries.
Inventory accounting
Another point of divergence between US GAAP and IFRS is inventory accounting, especially concerning valuation methods employed as well as inventory write-downs.
Methods of inventory valuation
US GAAP: Last in First Out (LIFO) method for inventory valuation is allowed under US GAAP. Under this approach, it presumes that items acquired recently are sold first, leading to lower reported earnings during inflationary times due to the higher cost of goods sold. Its popularity in America comes from its tax advantages, as it can reduce taxable income by reporting higher costs.
IFRS: In IFRS, LIFO is normally forbidden. Instead, the First in, First Out (FIFO) method or weighted average cost method should be used by companies. These methods usually raise inventory values and decrease the cost of goods sold when prices are increasing, leading to higher reported profits compared to LIFO.
Inventory write-down reversals
US GAAP: Once inventory is written down to reflect a decrease in market value under US GAAP, the write-down cannot be reversed, even if the market value of the inventory subsequently becomes greater again. A conservative approach prevents overstating financial health by reversing initially recognised losses.
IFRS: Under IFRS, write-downs on inventories can be reversed when there are no more conditions that lead to write-downs and their market value has appreciated. This policy reflects IFRS’s focus on the provision of the most current and relevant financial information.
These disparities may have significant effects on financial statements. The choice between valuation of inventories as well as treatment for write-downs will impact reported incomes, tax liability, and key financial ratios, thereby affecting how investors perceive the company’s worth.
Revenue recognition
Revenue recognition is important in determining how and when companies report their earnings. US GAAP has one approach to revenue recognition; IFRS has another that mirrors their underlying principles.
US GAAP: In US GAAP, revenue is recognised based on detailed industry rules and guidelines. Classically, revenues are recognised when realised or realisable and earned; generally, this means delivery of the goods or services to the customer and completion of the earnings process. This rules-based nature brings clarity but can also lead to complexities when transactions don’t fit neatly into predefined categories.
IFRS: IFRS is based on a principles-based approach. The recognition of revenue would be at a time when the goods or services are transferred to the customer and also at a time when value can be reliably measured. The IFRS framework classifies its revenue in five steps: identifying the contract, identifying performance obligations, determining the transaction pricing, allocating the price to performance obligations, and recognising revenue when (or as) performance obligations are satisfied. This model allows flexibility and adaptability but requires judgement and estimation.
Such variations in approach may lead to some potential timing differences between US GAAP and IFRS-reporting entities concerning revenue recognition. The detailed guidance of US GAAP results in uniformity across industries, whereas IFRS intends to more faithfully present the economic substance of transactions. Global firms should be aware of these differences to stay compliant and have appropriate financial reporting for the geographies they operate in.
Research and development costs
R&D (Research and Development) activities are a fundamental part of innovation, but their associated costs are treated quite differently under US GAAP and IFRS—accounting treatments that have major impacts on companies’ reported financial health and future potential.
US GAAP: Most R&D costs are expensed as incurred under US GAAP. This forces companies to recognise these costs immediately as expenses on the income statement, thus reducing current-period profits. This approach is conservative since there is a lot of uncertainty associated with R&D activities—a company cannot be assured that the efforts being undertaken will lead to a viable product or will ever result in future economic benefit.
IFRS: IFRS demarcates the stage of research and the development stage. Research costs incurred on different projects in the first stage of the project are expensed when they are incurred. However, development costs can be capitalised under IFRS in case of the satisfaction of certain criteria, for example: an asset is proven to be technically feasible for its completion; intent and ability have been demonstrated to complete; and the ability to rely on the measurement of the costs. By capitalising development costs, expenses are spread over the useful life of the product at a time when reported profits are overstated for the current period and understated in the future.
The differences in the treatment of R&D costs for both US GAAP and IFRS can be quite material with respect to financial statements. The reality is that R&D spending, especially in technology, pharmaceutical, and manufacturing sectors, is huge. US GAAP recognises expenditure immediately, while on the other hand, capitalisation under IFRS influences important finance metrics like net income and return on assets.
Presentation of financial statements
The presentation of financial statements differs greatly in US GAAP and IFRS most importantly in the classification of liabilities and additional disclosure requirements which directly affect the comparability of the financial statements and the information required to be communicated to the stakeholder and how it is going to be read, interpreted, and compared.
Classification of liabilities
US GAAP: US GAAP requires a clear distinction between current and non-current liabilities. Liabilities will be regarded as current if they are due for settlement within one business cycle, usually one year. On the other hand, the liabilities that fall due after one business cycle are to be classified as non-current liabilities. This classification helps the users to understand the short-term obligations that the company has waiting against its name and the long-term commitments that it has made, thus formulating an idea around liquidity and financial stability.
IFRS: IFRS also requires making the distinction between current and non-current liabilities but provides more scope to the presentation. IFRS provides grouping all liabilities and more choices available in relation to the presentation of financial statements that sometimes reduce the detailed level but allow for a smoother presentation fitted to different business models.
Disclosure requirements
US GAAP: The US GAAP disclosure requirements offer very detailed guidance that is very predictive. The disclosures required may go to the extent of even guiding the specific disclosures that must be in the notes to the financial statements. The same applies to the conditions attached to revenue recognition policies and inventory valuation methods, among other conditions on contingencies. It is argued that basically, users would be provided with all relevant information that may be needed to appreciate the financial status or performance of the company.
IFRS: IFRS generally has a less detailed specification on disclosure with a view towards transparency, comparability, and relevance. Even if IFRS represents somewhat less prescriptive requirements than other standards, it motivates entities in those areas to disclose all necessary information likely to influence their decisions. This includes significant accounting policies, judgements, estimates, and the nature and extent of the risks from financial instruments.
The differences in the financial statement presentation finally reflect what they are, in a sense, philosophically based upon. Detailed US GAAP rules have to aim at grasping consistency and comparability within the US market, whereas principles-based IFRS has to accommodate global reporting needs. So it is relevant for these companies and investors to understand the differences in presentation and hence interpret financial information for the best decision-making.
Measurement of accounting elements
In terms of measuring the accounting elements regarding assets, liabilities, and income under US GAAP and IFRS, there are two very important discrepancies in reporting that are related to fair value measurements and lease accounting.
Fair value measurements
US GAAP: Conservatism is generally the nature of US GAAP while holding onto the historical cost for fixed assets and only showing the fair value for some financial instruments. This basically results in a reduction of volatility inside the values of the assets, which is at times not really representative of market conditions.
IFRS: Revaluation of non-financial assets to fair value under IFRS when the fair value model is more relevant. This type of revaluation reflects more current conditions in the markets and increases the more volatile asset values on the balance sheet.
Lease accounting
US GAAP: Most leases appear in the balance sheet by virtue of ASC 842, under which a lessee needs to book an amount for a right-of-use asset alongside a corresponding lease liability. This method does tend to be more transparent than some of the others regarding the obligation a company bears toward its leases—the main focus so far has been on tangible assets only.
IFRS: Under IFRS 16, almost all leases must be recognised on the balance sheet, which includes both classes of tangible and some classes of intangible assets. IFRS’s model requires recognition of a right-of-use asset and a corresponding lease liability. This results in larger reported assets and liabilities than under US GAAP’s focus.
The result of measurement differences, particularly in fair value accounting and lease recognition, is what affects financial statements and ratios. Such differences are relevant for global companies to ensure proper financial reporting and to be up to date with international standards.
Business implications
Global operations
The differences between US GAAP and IFRS are paramount for any multinational corporation. Multinational companies engaged in business need to prepare financial statements for home country reporting in compliance with US GAAP and, at the same time, for foreign reporting in compliance with IFRS. Dual compliance can be done, yet it can be complex, costly, minute in terms of changes, and may entail a lot of reconciliations. So, companies must also ensure consistency in their financial reporting across jurisdictions, which is essential for maintaining credibility and investor trust.
Investor-related issues
Investors are analysing accounting information in financial statements to assess the performance and health of firms. There could be huge differences in reported results—such as net income, values of assets, and financial ratios—between US GAAP and IFRS. Knowing how these differences can impact an investor’s accurate interpretation of the financial statement is very critical in making the right investment decision. This means considering the impact of different treatments on profitability, financial position, and future performance when comparing companies across different reporting frameworks.
Future outlook
The convergence process between US GAAP and IFRS has been the reason for enormous efforts, especially in the reduction of differences and enhancement of comparability. The process of convergence is targeted to attain a single accounting standard throughout the world, which shall bring uniformity to the profession and reduce the problems associated with dual reporting. Though immense progress has been achieved in that direction, differences still exist, and companies need to be updated about the changing standards to ensure compliance and effective financial reporting.
Conclusion
The differences between US GAAP and IFRS run deep and impact financial reporting, business operations, and investment decisions. While US GAAP sets a detailed, rules-based framework, IFRS gives a flexible, principle-based approach. Businesses moving across borders, investors in globally operating companies trying to understand bottom-line performance, and financial professionals seeking to work through the vagaries of the global accounting environment—each has a vested interest in understanding the differences between these two systems.
Comprehensive differences: The main differences relate to inventory accounting, revenue recognition, and R&D—these have the most bearing on financial statements. The extensive rules of US GAAP lead to consistency, while the general principles of IFRS, on the other hand, make it adaptable and relevant.
Global considerations: As IFRS is adopted by nations around the world, its proper implementation will help investors in comparing and investing in companies across boundaries. Any multinational company or investor has to know about both systems to maintain effective and proper comparisons in financial management.
Forward-looking perspective: Convergence efforts of accounting standards result in enhanced comparability and reduced complexity. The changing standards mean the need for increased awareness of them so that transparency and decision-making are maintained.
In the global economy today, it is very important to understand the major differences between US GAAP and IFRS. Understanding financial statements and making decisions based on that information assures accuracy and consistency across national boundaries in a greater way.
This article has been edited and published by Shashwat Kaushik.
Introduction
Cyberextortion has provided the digital age with a veritable inducement that criminals are cashing in on this era. Ransomware attacks and business email compromises are new and evident threats in the escalating cyber threat environment in the modern digital ecosystem that targets users, businesses, and even governments. Cybercriminals employ such acts to force their targets into giving up some form of value, such as money or other resources, through vulnerabilities in Indian ICT systems. While ransomware is the process of locking down a victim’s data and demanding its decode for money, cyber extortion involves various approaches, such as threats to disclose information that has been stolen or cause disruptions. Analysing these cyber threats from an Indian perspective as well as an international perspective, this paper provides a comprehensive look into the legal and practical aspects of the issue.
Literature review
Cyber sophistication uses digital threats to be paid a stated ransom. This shows that legal procedures such as the Budapest Convention that spans the IT Act of 2000 worldwide in India and the CFAA are local legislation. Measures involving personnel comprise staff education, the use of organisational procedures in treating an incident, technological measures such as encryption and intrusion detection, and legislation that requires cooperation between private and government entities. Thus, our understanding of emerging threats, the process of looking at and comparing prison systems, and evaluating the impact of prophylactic treatments is still far from complete.
Indian jurisdiction forbids cyber-blackmail also. Digital crime is when an individual taps into the system and captures or threatens to release confidential files or information for it to be returned safely. Cyber extortion is committed by hackers who will first target, for example, a system and then exploit the weak points/holes in an organisation’s security. As such, in the regular course of business activities and operations within a company. The CEO sends his trade secret on new-line men’s deodorants to his employees and sends this sensitive information via email. In this case, the hacker would hack into an official company email used by the CEO, and capture that information so he/she can ask for a ransom.
It is difficult to accept and apply new technological changes. The Indian Constitution does not explicitly locate the right to privacy, but rather it has been held in several cases that the said right is inherent in the constitution, particularly Article 21, which guarantees the right to life and personal liberty. It may be said without any doubt that this historic verdict of SC on the landmark case “K. S. Puttaswamy (Retd.) vs. Union of India” settled all disputes about privacy as an inherent right under Article 21 of the Indian Constitution. A case was filed against India and its Aadhaar scheme, alleging that it violated people’s rights to privacy specifically. In defence of the right to privacy as a fundamental right, the Supreme Court’s ruling holds a special place for data theft and the security of individuals’ data. This judgement has generated some fresh thinking around the Aadhaar Card and therefore towards six key rights endangered by its implementation.
Legal ramifications
According to the Bureau of Police Research and Development, Ministry of Home Affairs National Crime Records Year Book 2021, Volume II, every second cyber extortion case is registered in the national capital, Delhi, where all complaints say the accused knows the secrets. So there should be a written law for this legal judgement.
But alas the years-old Information Technology Act of 2000 does not have a definition of “cyber extortion,” and there is no provision to punish it as an offence since (fortunately or unfortunately) cyber-extortion itself was/is NOT a crime. The accused, however, can be booked under offences of Bharatiya Nyaya Sanhita 2024 (BNS), 2024, and the IT Act by using Section 303 (extortion) of BNS 2024, Section 351 (criminal intimidation) of BNS 2024, as well as section separately in the final agreement E(66E).
Section 66E deals with a violation of privacy where the capture, publication, and distribution of part or full area images of some private areas is leaked in that alleged picture. The accused could be imprisoned for up to 3 years and will have to pay a fine that may vary between Rs.
Extortion- Section 303 of BNS 2024, extortion means the offence of taking or attempting to take anything by force, serious coercion in such a way which instilled that person into fear adored or any other body property from one individual, compelling the said individual through certain Coercion with intent… Whoever commits the offence of extortion (section 383 to section 393) shall be punished with imprisonment up to two years or a fine or both.
In addition, Section 351 of BNS 2024 relates to the civil wrong of criminal intimidation, wherein a person puts another under threat of harm to the latter’s reputation, body, or property or to the reputation, body, or property of any person in whom the latter is interested. Thus, the purpose of threatening is to make the victim afraid and to compel him to act in a certain way or do something unlawful or restrain himself from doing something legal or something to which he has a right. This offence is criminal intimidation for which a person can be imprisoned for a term of up to two years with a fine or both.
However, even though presently there are the above-said sections under different statutes, it is imperative to have a section and a specific comprehensive provision for the offence of cyber extortion because, in the present age of the internet, Indian citizens, especially big business houses and women in society, are becoming the victims of this heinous crime.
Practical implications and prevention strategies
Regular backups:
Implement a comprehensive backup strategy that includes regular, automated backups of critical data.
Utilise offline backup services, such as external hard drives or cloud-based backup solutions to ensure data can be restored without having to pay a ransom.
Establish a backup schedule that creates multiple copies of the organisation’s data at different intervals, reducing the risk of data loss in case of a ransomware attack.
Patch management:
Implement a robust patch management process to identify and apply software updates promptly.
Regularly scan systems for missing patches and vulnerabilities that could be exploited by ransomware.
Prioritise patches for critical systems and applications known to be targeted by ransomware.
Monitor security advisories and notifications from software vendors to stay informed about new vulnerabilities and available patches.
Endpoint protection:
Deploy state-of-the-art endpoint protection solutions that provide real-time protection against ransomware.
Configure endpoint protection solutions to detect and block malicious activities associated with ransomware, such as suspicious file encryption, unauthorised network connections, and suspicious processes.
Implement a layered approach to endpoint protection, combining multiple security technologies such as antivirus, anti-malware, and intrusion detection systems.
Regularly update endpoint protection solutions with the latest threat definitions to ensure they can detect and block the latest ransomware variants.
Incident response
Containment and mitigation:
Isolating the affected computers from the network: This prevents the ransomware from spreading to other computers on the network.
Putting measures in place to discourage the spread of ransomware to other computers: This may include disabling network connections, blocking access to external media, and implementing antivirus software.
Backing up data: This ensures that the organization can recover its data if it is encrypted by the ransomware.
Communication:
Developing effective communication processes: This includes establishing a communication plan that identifies who is responsible for communicating with stakeholders and regulators, what information should be communicated, and when it should be communicated.
Alerting stakeholders and regulators: This includes notifying stakeholders and regulators of the ransomware attack, providing them with information about the attack, and recommending actions they can take to protect themselves.
Disseminating information about the incident: This includes providing information about the incident to the media, the public, and other interested parties.
Forensic analysis:
Determining the attack vector: This involves identifying the method used by the ransomware to infect the organization’s network.
Preventing similar breaches in the future: This involves implementing security measures to prevent future ransomware attacks, such as patching software vulnerabilities, implementing network segmentation, and training employees on cybersecurity best practices.
Learning from the attack: This involves conducting a post-mortem analysis of the attack to identify lessons learned and improve the organization’s security posture.
Ethical and public policy considerations
Paying ransom:
Legal concerns: Paying ransom may violate anti-money laundering and anti-terrorism laws. These laws aim to prevent the financing of illegal activities and terrorist organisations. Ransoms paid to cybercriminals could potentially be used to fund such activities, leading to legal consequences for the organisation making the payment.
Moral and legal quandary: Paying ransom can create a moral and legal quandary for organisations. On the one hand, organisations may feel compelled to pay the ransom to protect their data and minimise disruption to their operations. On the other hand, paying ransom essentially rewards cybercriminals and encourages further attacks. Organisations must carefully weigh the ethical and legal implications of paying ransom before making a decision.
Additional cybercrimes: Paying ransom may inadvertently lead to additional cybercrimes. Cybercriminals may perceive the organisation as a lucrative target and continue to demand payments or carry out further attacks. This can create a vicious cycle of extortion and cybercrime.
Transparency and disclosure:
Balancing Openness with Risks: Organisations face the challenge of balancing the demand for openness and transparency about cyberattacks with the potential risks associated with disclosure. Disclosing a cyberattack can damage the organisation’s image and reputation, erode customer trust, and invite legal challenges.
Legal requirements: Organisations may have legal obligations to report cyberattacks to regulatory bodies or law enforcement agencies. Failure to comply with these requirements could result in fines, penalties, or other legal consequences.
Risk to image and stakeholder relations: Disclosing a cyberattack can negatively impact the organisation’s image and reputation. It can also damage relationships with customers, partners, and investors, leading to lost business opportunities and decreased stakeholder confidence.
Conclusion
In the modern market where technology penetrates almost all spheres of human activity, cyber extortion is significant and a rather frequent threat due to the higher possibility of cyber information escalation. Thus, to mitigate the risks of performing such fatal attacks, everyone and any organisation must adhere to some set rules in cyber security and be careful. In the case of continuing computer programs, one has to install security measures, buy new software, educate the employees on the dangers, and establish continuity planning. Thus, awareness regarding cyber extortion should be raised, and appeals to actions related to technologies, police work, and common people should be made. Now it is the time to wake up and stand in unison to take up the fight and strengthen our ability to deal with the cybercriminals who wish to blackmail our digital/virtual assets.
This article is updated by Shafaq Gupta. The article deals with Section 2 of the Indian Contract Act,1872 in detail and defines the various definitions as applicable in the Act. The various sections related to them are also dealt with in brief to provide a complete understanding of a particular definition. Lastly, this article discusses relevant case laws and illustrations to each accompanying provision.
Table of Contents
Introduction
The law of contracts is one of the most important branches of mercantile law without which the economy of our country cannot function smoothly. It keeps our economy regularised by regulating our day-to-day dealings from sunrise to sunset. Nearly every transaction, every deal, involves a contract.
For example, booking a cab from an Uber app, issuing a book from the library, purchasing goods from the market, buying a newspaper subscription for a month, and getting it delivered to your home daily, are all contracts. All these contracts need to be made in accordance with the law of contracts.
The Indian Contract Act, 1872 (hereinafter referred to as “the Act or ICA”) was enacted by the legislature on 25th April 1872 and came into force on 1st September 1872. As we can see from the year 1872 itself, it is one of the oldest legislation of India which was enacted even before our country got independence in 1947. It was framed on the basis of a report submitted by the third British law commission in 1861 under the leadership of Sir John Romily and after that many changes were made to finalise the draft of the Act.
Contract law may be defined as a set of rules and principles that govern the transactions among parties, setting the rights and obligations of these parties. The Act is the statute regulating and controlling contract laws in India. It deals with the various concepts related to contracts such as offer, acceptance, conditions of a valid contract, revocation, consideration, etc. In this article, we will cover the various definitions provided in the law of contracts.
Clause-wise analysis of Section 2
The notion of contract underpins our entire economy, and therefore, every aspect of a contract must be analysed and understood correctly. A contract cannot be seen in the isolation of Section 2, for it would allow loose interpretation, which may lead to the essentials of a contract being overlooked.
Section 2 of the Act is the interpretation clause which provides the general definition of words and expressions used in the Act. Unless the context indicates otherwise, these definitions are usually adhered to. The clause-wise analysis of each subsection is as follows:
Section 2(a): Offer
The term ‘offer’ is also used interchangeably with the word ‘proposal’, which has been defined under Section 2(a) of the Act. It defines an offer as the willingness of a person to perform an act or to abstain from performing an act and this is done to obtain the consent of another person to that particular act or abstinence. It is the first step towards the formation of an agreement. For example, A asks B the question, “Will you purchase my car for Rs 2 lakhs?” Through this question, A is making an offer to B.
Communication of offer
For an offer to be valid in the eyes of the law, it must be communicated to the offeree (i.e., the party on the receiving end of the offer). It must be clear and precise to receive the consent of the other party to form an agreement. Section 3 of ICA states that there must be an intention to communicate the offer or any such act or omission must be done which tends to communicate the offer. Section 4 of the ICA further states that an offer is complete only when it comes to the knowledge of another party to whom the offer was made.
For example, A proposes to sell his house to B via letter at a certain price. The communication of the offer is complete as soon as B receives the letter. Another example of it can be if A revoked his proposal by way of telegram against B. This revocation will be considered complete on the side of A when the telegram was dispatched but it will be considered as communicated to B only when he receives the telegram.
Intention to create legal relationship
Another important thing to be kept in mind regarding an offer is that an offer must be made with the intention of creating a legal relationship. Mere social invitations do not count as an offer under the contract law. An agreement may have all the essentials required for enforceability, but it will not become a contract without this intention. The lack of intention is why domestic, social and religious agreements have been kept out of the domain of the courts when it comes to enforceability.
For example, A offers B to watch a movie together on Sunday and B agrees to it. Even though A made an offer to B here, it is merely a social invitation and A cannot be held liable if he postpones or cancels watching movies with B.
A landmark Australian case law in this regard is Balfour vs. Balfour (1919). In this case, the defendant was a government employee in Ceylon and he went to England with his wife for a holiday trip. His wife got unwell and due to health concerns, she was not able to return back to Ceylon with him. The defendant promised her to pay a sum of £ 30 per month as maintenance for the period she had to live apart.
Eventually, he failed to pay that amount and was sued by his wife. The case was decided in favour of the defendant (husband) by Lord Atkin as there was no intention to create a legal relationship. It was just a normal agreement made between a husband and a wife out of their domestic marital relationship.
Types of offer
General or specific offer
An offer can either be a general offer or a specific offer depending on the circumstances. It is a specific offer when it is conveyed to a particular person and not to anyone else. But a general offer is an offer made to the public at large. For example, A advertises to sell his 2 BHK apartment in South Delhi for an amount of Rs 21 lakhs. This is a general offer which may be accepted by any individual. However, if A had specifically offered one of his relatives his apartment, it would have been a specific offer.
Cross offer
When two offers having the same terms and conditions crossed each other in the post, they are called cross offers. Both are offers, none of them would be considered as acceptance to others though terms and conditions are same in both. For example- A makes an offer to sell his house for 7 lakhs to B and B in ignorance of that makes an offer to buy the same house for 7 Lakhs, they are said to make a cross offer, and there is no acceptance in this case, hence it cannot be a mutual acceptance.
Express or implied offer
An offer would be an express offer when it is made in words by way of mouth or by writing. An offer made otherwise than in words is said to be an implied offer. For example- Bus or train services or putting coins in an automatic machine or a passenger boarding a bus.
Counter offer
When the offeree offers a qualified acceptance of the offer subject to modifications and variations in terms of the original offer, he is said to have made a counter offer. A counter offer is a rejection of the original offer. For example – A offers B a car for 10 Lakhs, B agrees to buy for 8 Lakhs, this amounts to a counter offer and it would mean a rejection of the original offer. Later on, if B agrees to buy for 10 Lakhs, A may refuse. Counter offer is not a valid offer as the acceptance of an offer must be absolute and unconditional.
Invitation to offer
Sometimes a person may not offer to sell his goodsor services, but makes some statement or gives some information with a view to inviting others to make an offer on that basis. These statements are considered as an invitation to offer. For example- catalogue of books, auction sale, notice of tenders of any institution or company etc.
In the case of Lalman Shukla vs. Gauri Dutt (1913), it was held by the Allahabad High Court that an offer can be accepted only if it has been communicated to the offeree. The brief facts of the case are that the plaintiff found the missing child of the defendant and he handed over the child to the defendant without knowing about the reward.
The defendant had announced a reward of Rs. 501 in lieu of whosoever finds his missing child would get it. But the plaintiff was unaware of it and he continued his services as a servant under the defendant for a further six months.
Later when he came to know about that reward, he filed a suit in the court to recover it but the court ruled in the favour of the defendant as the offer was not communicated to the plaintiff. Therefore, he could not benefit from it.
Section 2(b): Promise
Section 2(b) of the Act defines promise. A proposal or an offer is considered to be accepted by the party to whom it was made when he signifies his assent to it. A proposal after getting accepted, becomes a promise. After the acceptance is made by the offeree, both the parties to a contract become legally liable to each other.
Just like an offer, the acceptance may also be expressed or implied. It is not necessary for the offeree to accept an offer. He may deny it according to his own will. For example, A offers to B to purchase his house and in return, B accepts the offer at an amount of Rs 1.5 lakhs. This is a promise.
Essentials of a promise
In the words of Anson, “acceptance is to offer what a lighted match is to a train of gunpowder. It produces something which cannot be recalled or undone”. There are a few essentials that need to be followed for a valid acceptance, some of which are discussed as follows. These are covered under Section 7 of the Act.
Needs to be communicated
An acceptance must be communicated by the promisee to the promisor. Only then it would be considered a valid acceptance. It may be communicated orally, in writing, or by conduct within a reasonable period of time. It may be communicated by the promisee himself or through his authorised agent. If it is not communicated, the promisor is not bound by the promisor.
Absolute and unqualified
Acceptance should be absolute and unqualified. The proposal for an agreement must be accepted as it is without adding or modifying any conditions attached to it. It must be unqualified as otherwise it would be counted as a counteroffer if the promisee wishes to add any other terms to it. The proposal needs to be accepted as a whole. It is not possible to accept one part of it and leave the other.
Made in a reasonable manner
Acceptance should be made in some usual and reasonable manner unless the proposal prescribes the manner of acceptance. An acceptance of an offer may be made orally or in writing. The usual and reasonable manner of acceptance depends from situation to situation.
Suppose, an offer is made by A, who is a villager, by post. So, B cannot text A regarding acceptance of the offer if he knows that there are weak or no telephonic signals in that village. He needs to send his acceptance by post only.
If any specific mode of acceptance has been given (via a letter or telephone call, for example), communication must happen through the prescribed mode. If the acceptance is not communicated in the prescribed mode, the promisor may vitiate the contract.
For example, A wants to sell his iPhone to B and states that the acceptance of the offer is to be made via telegram text. But, B communicated his acceptance over a call. A may either accept it as it is or tell him to do so in the prescribed manner within a reasonable time. Otherwise, A may vitiate it.
Offer should still subsist
The offer must subsist till the time an acceptance is communicated by the promisee. It is because the promisor may withdraw his offer at any time before an acceptance is communicated to him.
The issue of communication of acceptance was taken up in the case of Felthouse vs. Bindley (1862). In this case, Felthouse wrote a letter to his nephew offering to buy his horse for 30-15 sh. He also mentioned in the written letter that if his nephew didn’t say anything in reply, he would consider the horse as his own horse.
His nephew did not reply to Felthouse but told his auctioneer, Bindley, that he wanted that horse to be given to his uncle and instructed him not to sell his horse to anybody else. But, by mistake, Bindley sold the horse to someone other than his uncle. Now, Felthouse sued Bindley for the tort of conversion and he contended that he was the owner of the horse.
It was held that as acceptance of the offer was not communicated to the offeror, no contract arose between them. Hence, Bindley is not liable towards Felthouse. It was also held that mere silence cannot amount to acceptance. The offeree chose not to reply and the offer lapsed with the passage of time.
Section 2(c): Promisor and promisee
Section 2(c) of the Act defines the two parties to a contract. The person who makes a proposal or gives an offer to the other party is known as the promisor and the party to whom the proposal or offer is made is known as the promisee. For example, A makes an offer to B via telegram. In this case, A will be the promisor and B will be the promisee.
Section 2(d): Consideration
Section 2(d) of the Act defines consideration for a promise as any act done or omission made by the promisee or any other person, on the wish of the promisor, that act or omission is known as consideration. It may be a present, past, or future consideration. For example, A entered into a contract with B to deliver 50 cement bags at the end of the month. In return, B promised to pay Rs 5000 on delivery. Here, Rs 5000 is the consideration for the contract.
Essentials of consideration
Consideration is something in exchange for something, i.e., mutual benefits. It must be something that has value in the eyes of the law. Essentials for a valid consideration are discussed as follows:
Must be at the desire of the promisor
The consideration must be made on request or demand of the promisor himself and not any other person. Even if a consideration is made by the promisee voluntarily, it would not be valid as it was not made at the desire of the promisor. For example, A displays a public notice that whoever finds his missing child, would be paid Rs 1000 as a reward. This is a valid consideration.
Given by the promisee or any other person
Consideration can be given by the promisee himself or any other person as per Section 2(d) of the Act. It is not necessary that only parties to a contract may give consideration. The third party who gives consideration may have some interest in the contract, but cannot sue in case of its breach due to the privity of the contract.
For example, A entered into a contract with B, where A was the promisor and B was the promisee. However, it was C who paid the consideration as per the desire of A. It is a valid consideration, though C cannot sue in case of breach of contract.
Can be made in the past, present, or future
Past consideration refers to the consideration made for an act that has already been performed before a contract was made for it. For example, A provided his services in the law chamber of B for a month and at the end of it, B paid Rs 5000 to A.
Present consideration refers to the consideration which is given simultaneously with the act performed. For example, A purchases a wall clock from a local shop and pays Rs 2000 for it to the shopkeeper.
Future consideration refers to the consideration that needs to be given in the future when the specified act will be performed by the promisee. For example, A promises to sell his crop to B when it is harvested and at that time, B will pay the required amount for it.
Act, abstinence, or promise by the promisee
The promisee must do an act or restrain from doing something or make a promise which forms a part of valid consideration. Consideration is something for something. So, the promisee needs to do something in return for the acceptance of an offer made by the promisor.
Consideration need not be adequate
There is a general principle for consideration which states that “the adequacy of the consideration is for the parties to consider at the time of making an agreement, not for the court when it is sought to be enforced.” For example, A sold his horse to B for a mere Rs 10 while the worth of the horse was about Rs 1000. Here, the consent of both the parties was free and even a sum of Rs 10 has some value in the eyes of law. Though not an adequate consideration, it is valid as per the law.
However, even if not adequate, there should be some obligation on the end of both parties along with a consideration. For example, A promises to pay B a sum of Rs 1000 without the presence or promise of any consideration in return. This is a void contract because at least some consideration must be there.
To understand the essentials of a valid consideration, let us have a look at case law. In the case of Durga Prasad vs. Baldeo (1880), the plaintiff constructed certain shops in a market at the instance of the collector. Subsequently, one of the shops was occupied by the defendant. As the plaintiff spent money on the construction, the defendant promised to give some commission on the articles sold.
He failed to give a commission to the plaintiff and was sued for the same. The Allahabad High Court held that the building was made at the desire of the collector and not at the desire of the plaintiff. Since consideration was not moved at the desire of the plaintiff, he was not entitled to the commission.
In another case of Abdul Aziz vs. Masum Ali (1914), the Allahabad High Court held that the quid pro quo(something for something) aspect of the agreement was absent, hence, there was no valid consideration, and the agreement could not be enforced.
In the case of Rajlukhy Dabee vs. Bhoothnath Mookerjee (1900), the defendant promised to pay a certain sum of money as maintenance to his wife. They made a separate agreement regarding this subject which listed the conditions between them in detail along with the terms of agreement.
Later, the defendant contended that the agreement was made out of love and affection and there was no intention to create a legal relationship. However, the Calcutta High Court opined that there was no love and affection between the parties and a certain written agreement was made for the payment of maintenance amount. Hence, it is a valid consideration with a binding nature.
The other sections of the Act related to consideration also need to be studied in brief. Section 23 of ICA,1872 states that the consideration must be lawful. It means the object of the consideration must be lawful. It also states when a consideration will be considered unlawful:
Forbidden by law; or
Of such nature that defeats any provision of any law; or
Fraudulent; or
Involved or implied the injury to the person or property of another; or
Regarded as immoral by the court or opposed to public policy.
As per Section 24 of the Act, in each of these cases, owing to unlawful consideration, the contract would be declared void. Even if a part of the single consideration for one or more objects is unlawful or if one or a part of one of the several considerations for a single object is unlawful, the contract will be void.
For example, A makes a contract with B to sell him 10g Ganja and other medicines which are prescribed by the doctor for Rs 10,000. This contract is void as the object is unlawful in parts. If we remove Ganja from it, it will be a valid contract.
Section 2(e): Agreement
The word ‘agreement’ has been defined by Section 2(e) of the ICA. It defines agreement as a promise or set of promises which form a consideration for each other. In simple terms, an agreement is an offer that has been accepted by the other party. So, at least two parties are needed for an agreement to be made.
There should be two parties to a contract as there must be one party who is giving an offer and the other party accepting it. For example, A makes an offer to B to sell his house located in South Delhi for a consideration amount of Rs 1,00,000 and B agrees to it. A and B can be said to be in agreement with each other.
Another thing to be noticed is that the parties must agree on the same thing in the agreement. There must be a meeting of minds i.e. consensus ad idem. For example, A makes an offer to B to sell his house located in South Delhi for a consideration amount of Rs 1,00,000 but B agrees to purchase A’s house located in North Delhi for which no offer was made. They are not agreeing to the same thing. Hence, there is no agreement between them.
In contrast, a contract is a specific type of agreement that is legally binding and enforceable in a court of law by its terms and elements. While every contract is an agreement, every agreement is not a contract. An agreement broadly comprises an offer and its acceptance, all of which must be bound together by communication within a reasonable period.
Section 2(f): Reciprocal promises
Section 2(f) of ICA defines reciprocal promises as those promises which form either the whole of consideration or a part of it. In other words, the performance of one party’s obligation is dependent upon the other party fulfilling its express or implied obligation.
For example, X desires to buy a house worth Rs 25 lakhs from Y. Y agrees to sell his house to X for the said amount. Here, X promises to pay the amount and Y promises to transfer the ownership of the house to X, making it a reciprocal promise on both ends.
These reciprocal promises form a valid consideration. Section 51 to Section 57 of the Act specifies the conditions that need to be fulfilled for the performance of reciprocal contracts. Following is a brief explanation of the provisions for a better understanding:
Section 51: if any one of the parties to a contract is not willing to perform his part of the promise, the opposite party is also not bound to perform his part of the promise.
Section 52: The promises must be performed in a sequence provided in the contract. If there is no definite sequence, the order of performance needs to be ascertained from the nature of promises.
Section 53: if one of the parties to a contract prevents the other or makes it impossible for him to perform his obligation, the affected party has the option to either declare the contract void or ask for compensation.
Section 54: when reciprocal promises are dependent on a condition that one act needs to be performed after the other, the party who has to act first, cannot ask the other to perform their promise without fulfilling their own promise.
Section 55: in case of failure to perform the promise within the given time, the affected party may either declare the contract as void or claim compensation for the loss suffered.
Section 56: reciprocal promises made to an impossible act are void.
Section 57: the parties enter into a contract for lawful acts but later, they promise to do some unlawful acts. So, the earlier lawful acts will be valid and the later ones void.
Section 2(g): Void agreements
As per Section 2(g), all the agreements which are not enforceable by law are void agreements. The word void basically means that it has no legal effect. There are certain agreements that have expressly been declared void by the Indian Contract Act, 1872. This includes wagering agreements, agreements made in restraint of trade or marriage, agreements where both the parties were under mistake of a fact, etc.
For example, A and B made an agreement regarding the purchase of a herd of a pet dog. However, at the time of agreement, the dog had died due to a road accident. Since both parties were unaware of the fact, this agreement would become void.
Section 2(h): Contract
Section 2(h) defines a contract as an agreement that is enforceable by law. This implies that there are two primary ingredients of a contract: an agreement and enforceability. It establishes corresponding rights and obligations between the parties to the contract. If one of them fails to uphold their side of the obligations, the other party will have the right of action in court.
In other words, a contract is a formal document accepted by both the parties, the promisor and the promisee, and is the foundation stone of any business transaction. It is an agreement between two or more parties to do a certain act or abstain from doing it. Sir William Anson defined a contract as “a legally enforceable agreement between two persons wherein two or more persons get a legal right and some have to fulfil corresponding legal responsibilities.”
Therefore, a contract is an agreement between two or more competent parties, based on mutual promises, to do or to refrain from doing a particular thing that is neither illegal nor impossible. The agreement results in any obligation or duty that can be enforced in a court of law. The agreement resulted in legally enforceable contracts because the parties agreed mutually.
Essentials of a valid contract
Only a valid contract is enforceable by law, and a contract must fulfil certain conditions to be valid. If any of these conditions are not fulfilled, that contract is deemed to be void. The magnitude of this subsection is contemplated in 20 sections ranging from Section 10 to Section 30.
Section 10 of the ICA marks which agreements are contracts based on the fulfilment of certain conditions. If seen in isolation, Section 2(h) would not have any practical application in real life, which is why it becomes necessary to read Section 2(h) in context with other relevant sections of the ICA. The essentials of a valid contract given under Section 10 is discussed as follows:
Agreement between parties
There must be an agreement between the parties i.e. consensus ad idem. Both the parties must agree on the same point mutually.
Free consent
All the parties involved in the formation of a contract must freely consent to it. They must agree upon the same thing in the same sense. Free consent has been expounded in Section 14, and particular definitions of what does not comprise free consent have been given in the following sections. Consent will not be seen as free consent by a court of law if either of these five factors vitiates it:
Coercion means to threaten someone for the purpose of entering into a contract with him. It involves committing or performing an act that is prohibited by the law such as unlawful detention or threatening to hold any property that is detrimental to another person.
For example, A and B went shopping in the market. Suddenly, a group of four people came and pointed a gun towards them asking them to hand over all of their gold ornaments along with cash. Here, the consent of A and B is obtained by threatening them.
A party to a contract can be considered to be under undue influence when there is a relationship of trust between them and one of the parties holds a dominant position over the other. The dominant person must try to get an unfair advantage from the other.
For example, Mr. Andrew, who was an old man, used to live with his niece named Sana. She used to take care of him for the whole day and help him perform his daily chores. One day, Sana demanded he sign the property papers since she was dedicating all her time to taking care of him. She even forced him to do so. So, in this case, the contract won’t be valid as it has been affected by undue influence.
In case of fraud, one of the parties to a contract has mala fide intentions to deceive the other party. He does so by either making a false statement which he knows to be false or by concealment of material facts. In case of fraud, the contract is voidable at the option of the party with whom the fraud has been committed. For example, in an auction, A sells his horse and knows it to be of unsound mind. But, he says to B, the buyer, that his horse is fit and fine. A will be held liable for fraud.
Another thing to be kept in mind is that mere silence about a thing does not amount to fraud unless and until the circumstances are such that silence is equivalent to speech. For example, A says to B that he wants to buy his house for Rs 10 lakhs and that “if you say nothing, I will assume that you are selling it to me.” B did not say anything and later sold it to someone else. This amounts to fraud because, in this situation, mere silence was equivalent to speech.
Misrepresentation basically refers to misrepresenting a fact that is related to the contract and as a result, such information induces the other party to enter into a contract. Firstly, the person who makes such a statement believes it to be true, though that information is false and cannot guarantee it.
Secondly, it also includes statements made by a person who has no deceitful intentions but causes a breach of his duty and gains some advantage over the other by misleading him. Thirdly, misrepresentation can also be made innocently when the person making a statement causes the other party to make a mistake with regard to a material thing in a contract. The contract which is affected by misrepresentation is voidable at the option of the party who bears the loss by such misrepresentation.
For example, A sold his television to B by saying that it works perfectly fine. B had confidence in A and bought it for an adequate amount of consideration. After a month, it stopped working and B thought that he was being misled by A. Later, A explained that he had no intention to deceive him as he believed it to be in perfect working condition. So, here A has done misrepresentation of facts.
The word ‘mistake’ has not been defined under the Act. It basically means a mistake as to a material fact related to the contract and may be done by any party to a contract. It is not intentional and may be made due to confusion or negligence. Such contracts are void as parties have no consensus ad idem (agreeing on the same thing in the same sense).
But a mistake of law is not considered a mistake and such a contract is void because it follows the principle of ignorantia juris jon-excusat i.e. ignorance of law is no excuse. For example, goods were to be exported from France to Japan but the ship was cast away in between. Both the parties were not aware of it and no one did it intentionally. So, it was a mistake of fact.
In the case ofChikkam Seshamma vs. Chikkam Ammiraju (1917), it was held that the threat of suicide amounted to coercion. The contract was declared void as the consent given was not free. However, in the case of Askari Mirza vs. Bibi Jai Kishori(1912) 16 IC 344, it was held that the criminal prosecution is not a threat but the right of the aggrieved party in case of a wrong committed against them, and thus the contract between the parties was valid.
Competent to contract
As per Section 11 of the Act, an agreement is said to be a valid contract when parties entering into that agreement are competent to contract, which means that a person must be above the age of majority, of sound mind, and must not be disqualified by law. For instance, if a minor enters into a contract regarding the sale of land, it will be declared void ab initio — a principle established in the case of Mohori Bibee vs. Dharmodas Ghose (1903).
Lawful consideration
Consideration is something that has some value in the eyes of law and the contract must be made between the parties for a lawful consideration. It should not violate any law that is in force at present, must not be such an act or omission that has been prohibited by law, not be fraudulent, and not opposed to moral or public policy. The consideration for the contract need not be adequate but must be sufficient enough to have some value.
Suppose, A says to B that he can offer him a job in a government organisation, and for that, he needs to pay a sum of Rs 1 lakhs. This consideration is unlawful because it amounts to bribery and is opposed to public policy.
Lawful object of the agreement
It is necessary that the objective of a contract is legal. A court will not enforce a contract that is illegal or contrary to public policy. Illegal contracts are prohibited either by statute or by common law. For instance, if two people enter into a contract for active euthanasia, the contract would be declared void by a court of law.
In the case of Udhoo Dass vs Prem Prakash (1963), the Allahabad High Court observed that every consideration or object is lawful unless it is forbidden by law or is of such a nature that, if permitted, it would defeat the provisions of any law.
Not expressly declared to be void by any law
There are some agreements which are expressly declared to be void by the law. Such agreements are not enforceable and not considered binding on the parties. For instance, agreements in restraint of trade, agreements in restraint of marriage, wagering agreements, agreements to do an impossible act, agreements without any clear meaning, or agreements that are dependent on a condition to do an impossible act.
For example, both A and B are watching the World Cup final match between India and Pakistan. A bets that if India wins, B will have to pay Rs 5000 to A and vice versa. Such an agreement is void since it is a wagering agreement.
Difference between an agreement and a contract
For a better understanding of the difference between an agreement and a contract, let us have a look at the following table:
Factors
Agreement
Contract
Definition
An agreement is defined as an offer that is accepted by the other party after a meeting of minds.
A contract is defined as an agreement enforceable by law.
On the basis of consideration.
It may be made without consideration.
It cannot be made without consideration.
Enforceability
It is not a legally binding document.
When an agreement fulfils all the essentials laid down under Section 10 of the Act, it becomes a contract and is a legally binding document.
Defined under what Section of the Act
An agreement is defined under Section 2(e) of the Act.
A contract is defined under Section 2(h) of the Act.
Mode of document
An agreement may be oral or written.
Written contracts are generally preferred as they can be proved easily in case of their breach. But there may be oral contracts known as ‘verbal or parol contracts.’
Nature
Agreements can even be informal due to being used in social and domestic scenarios.
Contracts are more formal in nature.
Evidentiary value
Agreements are not enforceable and therefore, have no evidentiary value.
Contracts are much more efficient and tangible as evidence than agreements, especially if the agreement was made orally.
Contract in the digital era
The Indian Contracts Act, 1872 is a fine piece of legislation, but just like everything else, it needs to change with time to stay relevant and useful. Its importance has grown manifold in the current business environment with a significant increase in contracts between various parties resulting in disputes. Although it has not been defined under Section 2 yet it is important to understand this in today’s time.
Today’s world is surrounded by a digital environment where everything is going online, even the contracts. This is because the internet makes things easily accessible to everyone even in the comfort of their home. Electronic contracts are born out of the need for speed, ease, and productivity. Although e-contracts are legal in the Information Technology Act, there is some insecurity while dealing with and executing contracts online.
While giving more clarity to rules regarding the formation of e-contracts, the amendment needs to address questions around jurisdiction in e-contracts, rights and liabilities of parties, and cases of unilateral mistakes by one party.
Liability of a minor
Even minors are entering into digital contracts as they have access to social media or other digital platforms. But we need to see what the liability of minors is if they enter into a contract. The current position of the Indian law towards minors (as interpreted from Section 33 of the Specific Relief Act, 1963) gives rise to loopholes that minors can exercise to escape liability and the Act in itself does not contain any specific provisions relating to this.
In the case of Mohiri Bibee vs. Dharmodas Ghose (1903), the application of Section 65 of the Indian Contract Act, 1872 was challenged. The Privy Court held that this contention could hold only if the parties were legally competent to contract.
However, in its 13th report, the Law Commission of India said that they believe an incorrect interpretation had been passed by the Privy Council and recommended that an explanation be added where a minor enters into an agreement on the false representation that he is a major.
Regulation of unfair terms of a contract
It is necessary to evolve the principles regulating unfairness in contracts as nowadays online fraud is a common thing to witness. This will have broad ramifications in various contracts, including lending agreements, builder-developer agreements, debt instruments, landlord-tenancy agreements, government contracts, and arbitration agreements.
Most developed systems have evolved ways to deal with unfairness in contracts and recognize the possibility of procedural and substantive unfairness. Legal experts have a consensus over the belief that courts must be equipped to deal with the issue of unfairness even if the parties have not raised such a plea. In its 103rd report, the Law Commission addressed the matter of unfair terms, a decision on which is pending.
Section 2(i): Voidable contract
Section 2(i) of ICA defines voidable contracts as the contracts that are enforceable at the option of one or more parties, but not at the option of another or others. These types of agreements are initially valid and can become void at the option of the party who suffers a loss due to the flaw in the agreement.
For example, A points a gun at B while asking him to sign the property papers in his name. Due to the fear of losing his life, B signed the papers. This contract is voidable at the option of B because the contract was not made with free consent.
In the landmark case of Bawlf Grain vs. Ross (1917), a wheat producer entered into a contract with a person to deliver wheat while he was intoxicated. As a result, he failed to fulfil his promise as the prices of wheat increased in the market in the meantime.
The court held that the contract was entered into while one of the parties to the contract was intoxicated. Therefore, the other party has the option to either accept the contract as valid or declare it to be void. This is an example of a voidable contract.
Some contracts which are voidable as provided in the Act are:
Voidable due to lack of free consent (Section 19), such as the contracts made by coercion, undue influence, misrepresentation, and fraud.
Power to set aside a contract induced by undue influence (Section 19A).
Voidable due to subsequent default of one party such as refusal to fulfil the promise whole fully (Section 39).
Voidable due to the impossibility of performance of a contract created by an act of one party (Section 53).
Voidable due to failure to complete the contract at the fixed time (Section 55).
Section 2(j): Void contract
Section 2(j) of ICA states that the agreements which were earlier valid would become void when they cease to have the effect of law. It is no longer enforceable by law.
For example, A lends a loan of Rs 1 lakh to B for a period of five years. As per the contract, B will have to repay the loan amount along with a 5% rate of interest per year. B dies before the period of five years. So, this contract becomes void and can’t be enforced.
Conclusion
Modern society is unthinkable without the possibility to conclude binding contracts. Contracts not only allow businesses to trade goods and offer services, but citizens also make use of contracts to pursue the things in daily life, even if they do not always realise it. Contract law is a part of present society and it is almost impossible to imagine a society without it.
When seen together from a holistic perspective, one understands that fulfilling the essential conditions allows a contract to be formed entirely consensually and legally, disallowing its breach or non-performance, except in exceptional circumstances. This understanding comes only after thoroughly analysing the interpretation clause of the Indian Contract Act in the context of other sections present in it.
Frequently Asked Questions (FAQs)
What is the significance of Section 2 of the Indian Contracts Act, 1872?
Section 2 of the Act is quite significant since it enlightens the readers about the meaning of various words used in the Act before entering into the details of the other provisions. It is a stepping stone to understanding the Act in a thorough manner and serves as a framework for the formation of contracts. When other provisions of the Act are interpreted along with it, this Section gives a much clearer picture to act upon.
How have judicial interpretations influenced the understanding of the words defined in Section 2 of the Indian Contracts Act, 1872?
The various high courts and the Supreme Court of India have interpreted the meaning of specific words used in these definitions in a way to make them more practical. It even answers many substantial questions of law that may arise in the mind of any individual and clarifies confusions if any. However, there may be conflict between the judgments of various high courts on the same topic. In that case, the Supreme Court needs to resolve such an issue and its judgement would be followed as a precedent.
What is the difference between void and voidable contracts?
Factor
Void Contracts
Voidable Contracts
Definition
A void contract is a contract which cannot be enforced by any of the parties and has no legal value in the eyes of the law.
A voidable contract is a contract which is enforceable at the option of the party who suffers a loss due to that contract.
Legal provision
Section 2(j) of the Act defines void contracts.
Section 2(i) of the Act defined voidable contracts.
Nature of the contract
These contracts are not legal in nature. While they may have been valid when made, they became void at a later stage due to not being able to fulfil some of the essential conditions of a valid contract.
These contracts are irregular in nature. Their validity depends on whether the aggrieved party chooses to repudiate it within a reasonable period of time.
Damages
No damages can be claimed from a void contract.
Damages can be claimed by the aggrieved party if he suffers a loss from such a contract.
Examples
A contract may become if there is no consideration and only one party has obligations to fulfil.
A contract may become voidable if consent was vitiated by coercion or undue influence.
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This article was written by Monika Verma and further updated by Jaanvi Jolly. This article delves into the concept of ‘invention’ in the context of patent law, including its definition and the criteria for patentability along with relevant case laws. It also covers what constitutes non patentable subject matter and provides a brief overview of international perspectives on the subject matter. It further explains the position in regard to patents in the pharmaceutical industry and the patentability of AI.
Table of Contents
Introduction
Patent law is a specialised field within the sphere of Intellectual property laws. Intellectual property originates from the human mind and creative intellect. Therefore, individuals who use their creative skills should be granted some form of benefit in the form of protection of their invention. This protection can be granted in the form of patents. A patent is an exclusive right granted for an invention.
When it comes to patents, not all inventions are eligible for protection. Understanding what can and cannot be patented is crucial for inventors and businesses alike.
Patentable inventions are those that meet specific criteria set by patent laws. Generally, for an invention to be patentable, it must be novel, non-obvious, and useful. Examples include new devices, methods, or compositions of matter that demonstrate a clear inventive step and offer a tangible benefit.
Non patentable inventions, on the other hand, fall outside the scope of patent protection. These often include abstract ideas, natural phenomena, and laws of nature. Inventions that are deemed to lack novelty or are considered obvious in light of existing knowledge are also not patentable.
Understanding these distinctions is essential for navigating the patent system effectively and ensuring that intellectual property is properly protected. These grounds for patentability may vary from country to country as these are governed by territorial laws, this aspect has been discussed in the next segment.
Territorial application of patent laws
When we talk about Patent laws, they are territorial, that is they are governed by the specific laws of the country where they are registered. Intellectual property rights are governed by domestic laws, however, the countries that are a member of the World Trade Organization (WTO) need to frame their domestic laws in line with the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS). It is pertinent to mention here that the World Trade Organisation or WTO is an organisation that plays a pivotal role in the global trade landscape, overseeing and facilitating international trade agreements and resolving disputes among member countries. The TRIPS Agreement is a key international treaty administered by the World Trade Organization, aimed at setting comprehensive standards for the protection and enforcement of intellectual property (IP) rights globally.
Article 7 of the TRIPS Agreement sets out the goal to be achieved by intellectual property rights.
It seeks to promote technological innovation.
It seeks to transfer and disseminate technology to the mutual advantage of producers and users of technology knowledge. This transfer is intended to be in a manner which is in favour of social and economic welfare and balances the rights and obligations of the parties involved.
Despite the formulation of a broad patent framework established by the TRIPS Agreement, we might find some country specific distinctions on the grounds of patentability and non patentability.
In this article the aspect of patentable and non patentable inventions is discussed in the context of India and the Patent Act 1970 (hereinafter referred to as the Act 1970).
The Act, 1970 was a direct result of the suggestions of the two committees, the Bakshi Tekchand Committee and the Justice Rajagopala Ayyangar Committee. The various recommendations of the committees included food and drug-related patents, compulsory licensing, and connected working requirements that focused on the socio-economic conditions of India specifically. The most notable advantage of patent law for the pharmaceutical industry was its provision of exclusive rights, which significantly supported innovation and investment in drug development, due to which Indian companies began exporting medicines globally.
To gather an understanding about patentable and non patentable inventions, we first need to understand what we mean by ‘patents’.
Meaning of Patents
A patent is a type of intellectual property, which can be understood as an exclusive right that is granted by the government to the creator of a product or a process. The product or process must be novel in nature; a new technical solution to a problem.
As per WIPO (World Intellectual Property Organisation), “A patent is an exclusive right granted for an invention. Patents benefit inventors by providing them with legal protection of their inventions.”
As per the Cambridge Dictionary, a patent is “the official legal right to make or sell an invention for a particular number of years.”
In the case of Aphali Pharmaceuticals Ltd. vs. State of Maharashtra (1989), the Apex Court defined a patent as a grant of some privilege, property or authority, made by the government or sovereign of a country to one or more individuals.
A patent offers the benefit of protecting an invention by establishing it as a form of private property, giving the patent holder exclusive control over its use and commercialisation. The patent confers on the owner a legal right to stop others from copying or using their invention. The owner not only has the right to use the invention but also to prevent all others from using or commercially exploiting it.
A patent essentially is the grant of an exclusive right to ownership, however, there are some additional benefits which are available to the patentee after the grant of a patent which are discussed next.
Rights and benefits of patent
Section 48 of the Act, 1970 provides the rights of the patentee that arise once the patent is granted. Some of these rights and benefits are given as follows:
In the case of either a product or process patent, the patentee gets an exclusive right to prevent any other person from using, making, commercially exploiting or importing the invention without the patentee’s consent.
The patentee or their company gets a competitive edge over their competition. Whenever they’re able to use the patent invention in the form of technology in their business, it would unquestionably improve their market power and provide them with a competitive advantage over the others, helping them make more profit. Further, whenever anyone else in the market uses their patented technology, they would get a royalty fee for the same.
A patent provides the patentee with protection in reference to his invention after he discloses his invention to the public. It enables him to go to an exhibition or a trade show and display his invention without fear of it being copied by others. This would either lead to diminishing or elimination of the competition and lead to increased sales.
A new source of revenue can be added by licensing or assigning a patent. So, when a business or an individual is able to seek a patent for their invention, they are also allowed to licence or assign their invention to others for a price. This in a way grants them the monopoly.
It also helps businesses or individuals to raise funds by attracting investors. Furthermore, the patents can also be bought and sold or licensed. They can also serve as collateral security for bank loans.
A patent can also be used as a bargaining chip during licensing negotiations with the competitor. Under the concept of cross-licensing, the companies exchange the rights to licence a patent in return for another, this saves them from paying hefty royalty fees. This helps in negotiations and collaborations and decreases the capital that would have been needed to acquire new technology.
The subject matter of a patent is an invention, therefore prior to understanding what inventions are patentable, we need to understand what constitutes an ‘invention’.
Inventions
Section 2(1)(j) of the Act, 1970 defines the term ‘invention’. The definition is very important to understand since it outlines the scope of what can and cannot be patented in India. As per this Section, an invention means a new product or process involving an inventive step and capable of industrial application. The invention should be of absolute novelty in the context that it has neither been used nor published in any part of the world.
Based on a bare reading of the aforesaid provision, the following ingredients are essential for the grant of a patent, which are explained below:
A new product or process: This aspect is also called the novelty aspect or criteria. In order for a product or process to seek a successful patent registration, it must be something new, not used or disclosed in public in any form in any part of the world.
Involving an inventive step: Section 2(1)(ja) of the Act, 1970 provides the definition for ‘inventive step’. It encompasses advancements in existing technical knowledge or has an economic significance, or both. Along with these aspects, it must also be a step which is not within the general ordinary knowledge of the person who is involved in the particular industry. This aspect is also called the non-obvious aspect. For a product or process to be patented, it must be something new and not within the knowledge of a person working in the field for which the patent is sought. The invention must be a result of the creativity of the inventor.
Capable of industrial application: Section 2(1)(ac) of the Act, 1970 defines the term ‘capable of industrial application’ as an invention capable of being made or used in an industry. This aspect is the practical utility aspect. For a product or process to be patented, it must have some practical utility and must not merely be a theory, incapable of application in practicality.
On the other hand, Section 2(1)(l) of the Act, 1970 defines the term ‘new invention’. It has two elements:
Any invention or technology which has not been anticipated or expected by a publication. In other words, the subject matter of the patent must not be available in the public domain or form a part of the state of the art.
Any invention or technology which has not been used before the filing of a patent application anywhere in the world.
Patentability and invention
Under the Patent Act, 1970, the concepts of invention and patentability have been differentiated, they deal with distinct aspects of an invention. Therefore, for the grant of a patent, it is essential that the invention fulfils the dual test of ‘invention and patentability’.
An innovation which may generally be considered an invention may not qualify as an invention as per the definition provided under the Act. Further, even if something satisfies the condition of being an invention as per the definition provided in the Act, it may be denied the grant of a patent for other considerations as stipulated under Section 3 of the Act, 1970 which introduces stipulations of two types.
The first states that particular innovations shall not be deemed to be inventions under this Act. For example, the mere discovery of a new form of a known substance or any substance obtained by mere admixture results only in the aggregation of the properties.
The second provides that, though the innovation satisfies the conditions to be an invention as per the act, despite that it may not be granted patent protection, for other reasons. For example, Section 3(b) of Section 3 bars the protection of an invention the use of which is contrary to public order or morality
After gaining an understanding about what constitutes an invention under the patent law, the question arises what all kinds of inventions can be protected by patents, this aspect of patentable subject matter is discussed next.
Patentable subject matter
In India, the legislature has not provided a fixed exhaustive list of inventions which can be granted a patent. Whenever a subject matter satisfies the three-fold criteria of patentability as provided in Section 2(1)(j), it becomes eligible to claim patent protection. However, the final registration is subject to the provisions of the territory’s governing law. In India, Section 3 and Section 4 of the Act, 1970 provide an exclusive list of non patentable subject matter. This makes all the other inventions patentable if they are novel and have an inventive step and industrial application.
Section 5 of the TRIPS Agreement contains provisions pertaining to patents and Article 27, specifically provides that patents can be granted for either the products or the processes of inventions in all the fields of technology. However, the inventions must be new, involve an inventive step and must be capable of industrial application. This was significant as it marked a departure from the original provision of the Act, 1970, which disallowed patents for the substances intended for use or capable of being used as food, medicines or drugs. For these, only the process patents were allowed.
The Act 1970 does not lay down a list of inventions which can be patented, however, Sections 2, 3 and 4 of the Act, 1970 explicitly deal with the inventions which cannot be granted a patent.
The aspect of non patentable subject matter is discussed next, along with relevant case laws.
Non patentable subject matter under the Patent Act, 1970
Chapter 2 of the Act, 1970 deals with the inventions which are barred by the Act from being patentable. In other words, the inventions falling within the provisions of this chapter cannot be patented.
Section 3 of the Patent Act 1970
Section 3 of the Act, 1970 provides a list of subject matters which do not fall within the definition of an invention as per the Act and are thereby not eligible for patent protection.
The various provisions of Section 3 are discussed below in detail with relevant case laws to enhance the understanding of the section.
Frivolous inventions
Section 3(a) of the Act, 1970 bars the grant of a patent to inventions that are frivolous or that seek to claim an obvious thing or are contrary to natural laws. A frivolous invention is one which has no use or is not patentable because it goes against well-established laws or public morality.
For instance, a machine that claims to generate energy without any input would be frivolous as it contradicts the law of energy or a machine claiming to teleport people. A perpetual motion machine would not be patentable as it would defy the laws of thermodynamics.
Inventions contrary to public order or morality
Section 3(b) of the Act, 1970 bars the grant of patent to inventions whose primary or intended use or commercial exploitation may be contrary to public order or morality or cause serious prejudice to humans, animals or the environment. Any invention which causes harm to humans, animals, plants or the environment or is related to inventions which aid the instances of robbery counter, feeding of currency, notes, frauds, etc., can be considered as inventions against public order or morality. For instance, inventions that use human embryos for commercial purposes or inventions which modify the genetic identity of humans or animals or cause them suffering.
Mere discovery of principle or theory
Section 3(c) of the Act, 1970 bars the registration of inventions that are a mere discovery of scientific principle or formulation of an abstract theory. The prime examples under this category include the principle of gravity or the laws of thermodynamics, Pythagoras’ Theorem, Einstein’s theory of relativity or Newton’s laws of motion. Inventions that can be patented must be technological in nature and intended to solve a technical problem.
Mere discovery of naturally occurring substances
Section 3(c) of the Act, 1970 bars the grant of patents to inventions which are mere discoveries of naturally occurring substances. Discovering something that naturally exists in nature is considered a discovery rather than an invention and thus cannot be protected by a patent on its own. For example, simply discovering a microorganism does not qualify for patent protection. However, if this discovery is used in a novel process to create a new article or substance, it might be eligible for patent protection.
This would include elements like sunrise, rainbows, tornadoes, erosion, and electromagnetic pulses. It would also include the discovery of a species of plants or animals. These elements are naturally occurring and have no relation to human intellect, thus, it is a mere discovery and cannot be claimed or patented as an invention.
Mere discovery of a new form
Section 3(d) of the Act, 1970 bars the grant of a patent to the discovery of a new form of an already known substance that does not lead to enhancement of efficacy of the substance. The discovery of a new form of an already known substance is a mere discovery and not an invention and is thereby not patentable. For instance, discovering that paracetamol has analgesic properties or that ethyl alcohol can be used as fuel because of its anti-knocking properties are mere discoveries and not inventions.
In case it extends the already known application substantially or leads to a new use for the substance, then it can be considered for a patent.
Efficacy under this Section refers to the ability to produce a desired or intended result under Section 3(d) of the Act,1970. The test of efficacy would depend upon the function, utility or purpose of the product, which is under consideration. In the case of a medicine that claims to cure a disease, the test of efficacy would only be the therapeutic efficacy of the medicine, which is to be judged strictly under Section 3(d) along with the explanation, not all beneficial properties of a new former relevant, but only those properties which relate to it. Its efficacy is considered may change of form which changes to the properties inherent to that form by itself cannot be qualified as enhancement of efficacy of a known substance.
Therefore, the substance must represent a new form of an existing substance and must meet the criteria for invention as outlined in the Act. It also must satisfy the enhanced therapeutic efficacy test as provided under Section 3(d) explanation.
For the purposes of this Section, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they are significantly different in terms of efficacy. The mere discovery of any new property or use of a known substance is not patented unless it is of greater efficiency than the original substance hence, the mere incremental innovation does not fall under the gamut of patenting.
In the case of Monsanto vs. Bowman (2013), patents in the field of agricultural biotechnology were discussed at length. The appellant Monsanto had a patent for a specific seed which was a genetically modified variety to provide resistance against a specific herbicide. The appellant only sold the seeds subject to a licensing agreement whereby the farmers are only allowed to sell the crop but not replant it.
The respondent farmer used the seed for one season and for the next plantation used some other less expensive soybean seeds. As the cheaper seeds were harvested largely from fields planted with the roundup-ready soybean, many of the cheaper seeds had the roundup-ready trait. The respondent subsequently applied the herbicide to the fields to identify which plants contained the roundup-ready trait and save their seeds for replanting the next season. This practice was discovered by the appellant and a suit was filed for infringement.
The respondent raised the defence of “patent exhaustion,” which gives the purchaser of a patented article, and any subsequent owner, the right to use or resell the article but does not permit the purchaser to make new copies of the patented product. The Supreme Court of America rejected the defence and held that patent exhaustion did not protect Bowman because he had “created a newly infringing article.” A farmer who buys patented seeds may not reproduce them through planting and harvesting without the patent holder’s permission.
If we see the application of this decision in India, the decision would be very different. India is a signatory to the TRIPS agreement and thereby had to bring its domestic patent law in line with the international standards. However, as far as plant varieties are concerned Article 27.3 of the Agreements provides that a member state can either make it a patentable subject matter or protect it under a ‘sui generis’ (of its own kind) system. India has opted for a sui generis system and has enacted the Protection of Plant Varieties and Farmers Rights Act, 2001, keeping in mind the economic and social situations of the country. So Indian law provides two important flexibilities:
Seeds and plant varieties are not patentable in India.
Section 39 of the PPVF Act, 2001 provides for “Farmer’s Rights” and allows the farmers to re-sow the seeds.
Note: This legislation has been discussed later in the article.
In the case of Novartis AG vs. Union of India (2013), the appellant claimed that their product had an ‘Imatinib Mesylate’ free base, which was a well-known substance. The product was created from a solution of Imatinib Mesylate and from that solution crystalline forms of alpha and beta of the chemical were derived.
Thereby, they claimed that there is not one-step single form but rather successive dual steps from a known substance and Section 3(d) applies only to a single-step discovery. It was also further claimed that the term in Section 3(d) contemplates a trifling change of form and the invention of beta crystalline form was not a major change of form.
The Supreme Court relied on the case of Monsanto vs. Bowman, 2013, wherein the following points were stated:
Once the notion of what is known is fixed, it becomes obvious that efficacy in the context of drugs must mean therapeutic efficacy.
The reason for the enactment of Section 3D was concerns relating to the protection of agriculture and the protection of pharmaceuticals that are evergreening of patents
It is not possible to give an exhaustive definition of what constitutes therapeutic efficacy and has to be seen as per the facts and circumstances as to whether the advance in knowledge leads to enhanced therapeutic efficacy
The explanation is a good statutory guide, which states that a changed form of the same molecule is not considered as passing the test of Section 3(d) of the Act, 1970. It is possible that changed forms of organic molecules may have fallout such as making it more soluble or thermodynamically stable, and such changes may improve the bioavailability of the element. However, none of these features impact the therapeutic efficacy of the original invention.
Further, the efficacy of the non-substance must stand enhanced to be saved from disqualification under Section 3(d) and it must be that non-substance, the new form of which has been discovered.
Therefore, the Apex Court concluded that the appeal must be dismissed since the beta form of Imatinib Mesylate is neither a new substance as it is both anticipated and obvious nor it is a new form of a substance which exhibits significantly enhanced efficacy. Finally, it was held that for pharmaceutical patents apart from tests of novelty, inventive step and application, there is a new test of enhanced therapeutic efficacy for claims that cover incremental changes to existing drugs which also Novartis’s drug did not qualify.
In the case of Glochem Industries Ltd vs. Cadila Healthcare Ltd (2009), the issue discussed was related to the infringement of a patent and the standard for the grant of a patent. The appellant, Glochem Industries, had a patent in respect of a pharmaceutical product. The patent in question was a specific formulation of a drug.
The respondent was accused of infringement of the aforesaid patent. The question to be decided was whether the respondent’s formulation was sufficiently similar to constitute infringement. The respondent in his defence challenged the patentability of the patent of the appellant.
The Bombay High Court examined the patent on the grounds of novelty, inventive step and industrial application, in order to decode the validity of the patent of the appellant and whether the product of the respondent fell within the scope of the patent.
The concept of the ‘doctrine of equivalents’ was discussed in the case. Literal infringement may be found if an accused device or method falls entirely within the scope of the asserted claims once properly construed but there is no literal infringement if any claim limitation is absent from the accused device or method.
When literal infringement does not exist, infringement, in certain limited circumstances, may nevertheless be found under a judicially created doctrine called the “doctrine of equivalents.”
Under the doctrine, a product or process that does not literally infringe upon the express terms of a patent claim may nonetheless be found to infringe if there is ‘equivalence’ between the elements of the accused product or process and the claimed elements of the patented invention.
The doctrine of equivalents arises in the context of an infringement action. If an accused product or process does not literally infringe a patented invention, the accused product or process may be found to infringe under the doctrine of equivalents. The essential objective behind an inquiry is, whether the accused product or process contains elements identical or equivalent to each claimed element of the patented invention.
In determining equivalence, an analysis of the role played by each element in the context of the specific patent claim will thus inform the inquiry as to whether a substitute element matches the function, way, and result of the claimed element, or whether the substitute plays a role substantially different from the claimed element.
The Supreme Court found that Cadila’s product did not infringe upon Glochem’s patent either literally or by equivalence. It was concluded that the formulation by Cadila was different enough from Glochem’s patented formulation, thus, not constituting infringement.
Mere admixture
Section 3(e) of the Act, 1970 declares that the mere discovery of a substance by mere admixing of components only leading to the aggregation of properties is non patentable. The mere act of combining mixtures is not patentable unless it meets the criteria of a synergistic effect. A synergistic effect means that the interaction of two or more substances produces a combined effect greater than the sum of the individual effects.
Mere rearrangement
Section 3(f) of the Act, 1970 states that a discovery caused due to mere arrangement or rearrangement or duplication of devices working in a known way independent of each other is not an invention. The simple improvement on something or combining previously known elements is not patentable unless it results in an outcome which is new or creates a novel article.
Methods related to agriculture or horticulture
Section 3(h) of the Act, 1970 discusses this ground. The discovery of methods related to agriculture and horticulture faces specific restrictions when it comes to patentability. The main cause for the bar on their patentability is that they are often considered extensions of the “abstract ideas” or “natural phenomena” categories, which are not patentable. Patent systems typically aim to encourage technological advancements that involve new and inventive steps, rather than discoveries of natural laws or basic principles.
However, there are some inventions related to agriculture which may be patentable:
Biotechnological advances
Innovations such as Genetically Modified Organisms (GMOs) or new strains of plants that involve genetic engineering or biotechnological methods may be patentable if they meet the criteria of novelty, inventive step, and industrial applicability.
Agricultural machinery and equipment
Inventions related to new agricultural machinery or equipment that improve efficiency or functionality can be patentable, provided they involve technical innovation.
Novel formulations and compositions
Methods involving new chemical formulations or compositions used in agriculture (such as fertilisers, pesticides, or herbicides) might be patentable if they provide a novel and non-obvious solution to a technical problem.
The question of grant of patent was regarding an invention of fungicidal treatment for Black Sigatoka, which is a treatment for a leaf spot disease in banana plants that is caused by a specific fungus. It was claimed that the invention was a cost-effective and environment-friendly method which reduces the risk of resistance and improves the health and yield of the plant, increasing its economic value. The Controller of Patent rejected the application by stating that the invention was a method of agriculture. Whereas the appellant claims that it is a process of treatment of plants to render them free from disease.
The court held that Sections 3(h) and 3(i) of the Act, 1970 cover different categories of invention where Section 3(h) is a method of agriculture in horticulture. It does not contemplate the treatment of plants to run them free of diseases. Whereas, Section 3(i) deals with the process of treatment and prevention. The court further held that by the 2002 amendment, the term ‘or plants’ was removed from Section 3(i).
Section 3(i) originally under the Patents Act, 1970 stated that “any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals or plants to render them free of disease or to increase their economic value or that of their products.”
After the amendment of 2002, it was changed to, “any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.”
As a result, the scope of Section 3(i) of the Act, 1970 has been reduced further. No reasons have been given by the Controller as to why the invention falls within the category of agriculture would fall under Section 3(h). It is evident from Section 3(i) of the act that the treatment of plants would not fall within the purview of non-patentability. The court set aside the order of the controller and sent it back for reconsideration on the law clarified by the court.
Inventions relating to the treatment of humans and animals
Section 3(i) of the Act, 1970 states that the discovery of a medicinal, curative, prophylactic, diagnostic, therapeutic process for treating diseases in humans or animals is not patentable. The treatment process if patented would prevent doctors from providing the best care for patients. The patents would restrict medical practitioners at the point of care. In the case of treatment for animals which aim at enhancing their health, or increasing their economic value or that of their products are also not patentable. This includes methods such as oral or injectable medication, stitch-free surgeries, and treatments for conditions like plaques, which do not qualify as inventions.
Animals and plants as inventions
Section 3(j) of the Act, 1970 bars the grant of a patent for plants or seeds including biological processes for their propagation, animals and the biological processes for their production or prolongation except for microorganisms. Something naturally found in the environment cannot be granted a patent. One simply cannot just discover a new plant and get patent protection.
It is also not possible to hold patents on plant varieties or products in India. The Act,, 1970 makes it clear that plants in whole or part, including seeds, varieties and species and essentially biological processes for the production or propagation of plants are not patentable inventions.
The government of India enacted the Protection of Plant Varieties and Farmers’ Rights Act, 2001 (PPVFR) adopting a ‘sui generis’ (of its own kind) system. Indian legislation is not only in conformity with the International Convention for the Protection of New Varieties of Plants, 1978 but also has sufficient provisions to protect the interests of public sector breeding institutions and farmers. The legislation recognises the contributions of both commercial plant breeders and farmers in plant breeding activity and implements the provisions of TRIPs in a way that supports the specific socio-economic interests of all the stakeholders including private and public sectors and research institutions, as well as resource-constrained farmers.
According to the PPVFR Act 2001, “A farmer’s entitled to save, use, sow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act: Provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act.” It is considered to be the first Act in the world to consider both farmers’ and breeders’ rights.
However, under the Act, registration of new plant varieties is allowed. Section 15 of the Act lays down that the new variety must be novel, distinct, uniform and stable.
Novel: The harvested produce of such new variety must not have been sold or disposed of with the consent of the breeder or their successor in India prior to a year and outside of India prior to four years generally but in the case of trees and vines prior to six years.
Distinct: There must be at least one essential characteristic that makes the new variety clearly distinguishable from a variety that is a matter of common knowledge in any country.
Uniform: The essential characteristics of the new variety must remain adequately uniform subject to any variation that can be expected from the particular features of its propagation.
Stable: Even after repeated propagation of the variety, its essential characteristics should remain the same.
Mathematical, business methods or computer programs
Section 3(k) of the Act, 1970 discusses this ground. As per the act, any mathematical calculation or a scientific truth or an act, mental skills or activities related to business, methods, or algorithms are ineligible for patent protection.
In the case of Raytheon Company vs. Controller General of Patents (2023), the Delhi High Court discussed the question related to an invention related to scheduling in a high-performance computing set-up including all sorts of hardware devices that are found in computer systems and networks.
The court stated that Section 3(k) prescribed painting of matters which fall under the categories mentioned in the section and in this case, the invention does not relate to a mathematical business method or algorithm. However, whether it pertains to a category of computer program per se has to be analysed.
As per the 2017 guidelines in reference to computer programs test indicators were published for the identification of computer-related inventions. The guidelines discuss various provisions relating to the patentability of computer-related inventions. The procedure to be adopted by the Patent Office while examining such applications and the jurisprudence that has evolved in this field has also been discussed.
In order to obtain a patent for a software innovation, the innovation must be presented in a way that the innovation which is sought to be protected includes subject matter that is “not just a computer program”. Therefore, a patent can be acquired for a software invention in India provided the software invention is patentable in conjunction with the hardware. This would indeed provide ample incentive for the inventors.
The use of the words ‘per se’ under Section 3(k), of the Act, 1970 states that the change has been proposed as sometimes the computer program includes certain other things which are ancillary or develop their own and the intention of the legislature is not to reject them from grant of a patent of their inventions, however, the computer programs as such are not intended to be granted patent.
The court also recognised that in innovation-driven economies, where most inventions are based on computer programs, it would be unfair to argue that all such inventions are not patentable. The innovation in the fields of artificial intelligence, blockchain technologies, et cetera are based on computer programs and to claim that they would not be patentable simply for that reason is arbitrary it is rare to see a product which is not based on a computer program, cars or other automobiles, micro washing machines, et cetera. All have some sort of computer program built. Therefore the effect that such programs produce, including in the digital and electronic products is crucial to determine the test of patentability.
The word for say was incorporated so as to ensure that genuine inventions which are developed based on computer programs are not refused patents. The court at last directed the Controller General to examine the applications in reference to the decision of the court.
Patentability of UPI framework
The Unified Payment Interface or UPI can be understood in terms of two aspects. The first is the method itself as a concept or system and the second is the specific innovation or unique technical implementation related to the UPI. While the first one is generally not patentable, the latter can be patented.
The UPI method as an idea is built on the concept of transferring money electronically. This is only an abstract idea or a fundamental economic practice and thereby not patentable. Further, the UPI is also a publicly available standard developed by the National Payment Corporation of India (NPCI). It is widely used and is accessible to people at large, therefore the essential requirements of the grant of a patent that is newness and non-obvious innovation are missing.
However, if a person has made a unique, novel technological innovation or algorithms within the UPI framework which are not found in the standard formulation, that is patentable. For example, a novel method for improving transaction security or a unique algorithm for handling payment requests might be patentable if they meet the criteria of novelty, non-obviousness, and usefulness.
In case of specific technical improvements which improve its performance or security. Further, in case some software innovations are made by the person which increases its functionality, in terms of managing transaction data or improving user experience. Those innovations can be patentable.
To conclude, the UPI payment system as a whole is not patentable. However, specific, novel and technical innovations could potentially be patentable.
Copyrightable subject matter
Section 3(l) of the Act, 1970 discusses this ground. As per this, literary, dramatic, musical or artistic work including cinematographic and television production including any other Aesthetic creation is not an invention. Activities like writing, painting, musical compositions or cinematographic productions are not patentable. However, some of these, if they fulfil the conditions, can be protected through the Copyright Act, 1957.
Mental act or method of playing a game
Section 3(m) of the Act, 1970 declares that an innovation which is merely a scheme or rule or method of performing a mental act or method of playing a game is not an invention and thereby cannot be granted a patent. The strategies for playing games such as chess or sudoku are mental exercises rather than technological interventions, and as such, they are not eligible for patent protection.
Presentation of information
Section 3(n) of the Act, 1970 discusses this ground. It states that methods of presenting information, such as in the form of tables, charts, pie charts, or graphs, are not considered inventions and are therefore not patentable. This provision is designed to ensure that fundamental methods of organising or displaying data do not receive patent protection, as they are generally considered to be tools for communication rather than technological innovations. A table used to display data on annual sales figures for a company, a bar chart illustrating the population growth of various cities over time, and a line graph depicting the trends in stock market prices over several years are a few examples.
Topography of integrated circuits
Section 3(o) of the Act, 1970 discusses this ground. It bars the registration of an innovation which merely deals with the topography of integrated circuits.
Traditional knowledge
Section 3(p) of the Act, 1970 declares that an innovation which is merely the traditional Knowledge or duplication of known properties of traditionally known components is not an invention under the Act and thereby cannot be granted a patent. The traditional knowledge or skills are the knowledge and skills which are passed down to the generations in a community. These are already well-known and do not have an element of innovation or novelty. Therefore, these cannot be patented. For instance, the antiseptic properties of turmeric, antiseptic properties of need, etc.
Section 4 of the Patent Act 1970
Section 4 deals with inventions relating to atomic energy that are also not patentable and that fall within Section 20(1) of the Atomic Energy Act, 1962.
Section 65 of the Act, 1970 empowers the central government to direct the Controller of Patents to revoke a patent. Such powers can be exercised when the central government is satisfied that the patent has been granted for an invention related to atomic energy which is not as per Section 20 of the Atomic Energy Act, 1962. The Controller General needs to give a notice to the patentee, and after giving him an opportunity to be heard, can revoke the patent.
The question of granting of patent in the area of the pharmaceutical industry is often shrouded in controversy, therefore in the next segment, we will be looking at the development of the Indian position on the subject.
Patentability of product patents in pharmaceutical industries
At the time of independence of India, the Indian patent law was governed by the Patents and Designs Act, 1911 which provided for both product patents and process patents. However, it was later recognised by the government that the patent law presented had benefited foreigners more than Indians. it did not promote scientific research and industrialisation within the country and rather curbed innovation and inventiveness.
As a result, the patent law was reviewed by the Tekchand Committee and the Ayyangar Committee. The latter stated that patents for chemical substances and inventions relating to food and medicine Should only be granted, process, patent, and product patents must not be allowed.
Subsequently, the 1970 Patents Act was enacted on the recommendation of the committees, which replaced the Patents and Designs Act, 1911. Section 5 of the Act, 1970 excluded product patents for the substances which were intended for or capable of being used in food or medicine or drugs. This led to a transformational impact on the pharmaceutical industry of India. There was an increase in the production of drugs and formulations and India became an exporter of low-priced generic drugs to the world.
Thereafter, the Uruguay round of negotiations under the General Agreement on Tariff and Trade (GATT) was conducted. This resulted in the formation of WTO and the subsequent formulation of the TRIPS Agreement in 1995. The TRIPS Agreement was a comprehensive multilateral agreement which set the minimum standards for the protection and enforcement of intellectual property rights and aimed to harmonise the IP laws globally.
India is also bound by the obligations under the TRIPS Agreement since we are a member of the WTO. As per the TRIPS agreement, India was required to allow the grant of product patents in the field of pharmaceutical and agricultural chemical substances, which was earlier barred under Section 5 of the 1970 Act.
As a result, the government of India brought in The Patents (Amendment) Ordinance in 1994, which provided for allowing a claim for patent of an invention for a substance itself, intended for use or capable of being used as a medicine or drug and for the grant of exclusive marketing rights with respect to the product that is the subject matter of such a patent claim.
In 1999, the Patent Act, 1970 was amended and brought in line with the ordinance. In 2004, the government brought in the Patents Amendment Ordinance by which Section 5 of the Act, 1970 was omitted which opened the doors for the grant of patents to pharmaceutical products along with other inventions.
The Ordinance had to be replaced by legislation when the legislation was discussed in the Parliament. A few concerns were raised such as the patent production in the pharmaceutical and agriculture fields. Chemical products would have the effect of putting life-saving medicines beyond the reach of certain people.
Therefore, the legislation had to strike a balance between its duty towards the people of the country as well as its obligation under the treaty. To balance the fears of the people, the Parliament amended Section 3(d) of the 1970 Act, which was intended to take care of any abuse of product patents in the medicine and agriculture, chemical substances industries.
A new product in the chemicals and pharmaceutical industry may not necessarily mean something which is absolutely new or completely unfamiliar or did not exist before. It can be something which is different from the previous product or a product which is better than what existed before or a product, which is in addition to another of the same kind.
Thus, in the case of chemicals and pharmaceuticals, if the product to which the patent product protection is applied is a new form of an already known substance with non-efficacy, then the product in order to be granted, a patent has to pass the test of the invention as provided under Section 21(j) and (ja), the test of enhanced efficacy as provided in section 3D read with the explanation.
Section 3(d) of the Act represents the concept of patentability, which is different from the term invention.
The area of Artificial Intelligence has been expanding day in and day out in the recent past, it has essentially become a part of our daily lives. From the use of virtual assistants like Siri to the use of software like Chatgpt, we can slowly witness the integration of AI in our lives. Therefore, it becomes pertinent to discuss the patentability of the inventions linked to AI.
Patentability of Artificial Intelligence (AI)
AI-related patents could cover various aspects of AI technology. These are:
Algorithms and methods: AI-related patents would include specific algorithms used for machine learning, neural networks, or data processing.
Applications: AI-related patents would include practical uses of AI, such as image recognition, natural language processing, or recommendation systems.
Systems and architecture: AI-related patents would include hardware or software configurations that implement AI technology, including specialised processors or frameworks.
Processes and technical know-how: Novel methods for training AI models or optimising their performance.
The patentability of AI can be seen in three perspectives:
Patenting of AI systems
In the United States of America or the European Union, AI systems can be patented if they meet the three requirements of patentability. These requirements are novelty or newness of the invention, inventive step or the requirement of non-obviousness and industrial applicability of the invention. However, AI Algorithms or abstract ideas related to AI are not patentable. Rather the specific application or implementation of those algorithms may be patented.
Patentability of AI algorithms
A purely mathematical algorithm or an abstract theory or idea about AI is not patentable. However, if the algorithm is practically applied then it may be. An example of this would be an AI-based method for diagnosing medical conditions or optimising manufacturing processes that could be patented if it demonstrates a novel and non-obvious technological advance.
AI as an inventor
The position is still not very clear as to whether AI systems can be mentioned as inventors in patent applications. Globally, the current position seems to accept only humans as inventors. However, looking at the rapid speed of technological advancement, it might actually become a reality in the future.
Case laws related to patentable and non patentable inventions
Patentable inventions
BlackBerry Limited vs. controller of patents and designs (2024) Delhi High Court
Facts: In this case, the patent was sought for the feature of ‘automatic selection’ and ‘updating by a cache manager’. It was claimed as a novel technical advancement over “the feature of providing confidence level on the basis of likeability”, which was the prior art, over which “the characterising features of ‘automatic selection’ and updating by cache manager were novel technical advancements”.
The patent application was refused by the controller of patents by stating that the elements are algorithm and computer programs per se and therefore fall within the bar of section 3 (k) of the Act, 1970.
It was claimed by the appellant that the technical feature which is the subject of the invention was an important feature that led Blackberry to issue promotional material, highlighting that more music could be downloaded on its devices, and if the feature claimed in the subject invention is enabled, more and more music or other content can be downloaded on the device. thereby it must be considered sufficient to cross the threshold of Section 3 (k) of the Act, 1970. Further, the technical effect is quite evident from the fact that it enables the user to get music through multiple sources which was not possible prior to this intervention.
Issue: Whether the subject matter is a computer program per se and thereby barred patent protection under Section 3 (k) of the Act, 1970?
Judgement: The court held that while there are some similarities between the subject patent and application and the prior art, the present patent application introduces several novel elements, which distinguish the two. While both of them involve the automatic selection of media files based on user preferences, the current patent subject uses “confidence level” based on likability offers a different metric compared to the popularity rating used in the prior art.
Further, the current subject patent includes a specific step for categorising media file based on confidence levels and comparing file sizes to the available storage as a filter for selection which was not provided in the prior art. Additionally, the inclusion of a specific cache manager in the present patent application which is responsible for updating a list containing information corresponding to the selected media files is a novel feature not found in the prior art.
Therefore, the court concluded that these distinguishing features including the technical step involving the cash manager, specific categorisation, and filtering process provide for a technical advance beyond the disclosure in prior art and therefore, the ground of non-patentability due to lack of novelty does not stand.
Biotron Limited vs. controller general of patents and designs (2023) Calcutta High Court
Facts: In this case, the subject of the invention pertains to the novel composition of compounds, which were claimed to be effective in treating and preventing viral infections, especially against HIV, HCV and dengue virus. It was claimed that the compounds with cyclic substitutions are better than compounds with non-cyclic substitutes which existed prior to the appellant’s invention. Therefore, the subject invention is technically advanced compared to other known compounds.
The application was rejected by the controller general of patents and design on the ground that it lacked inventive steps under section 2(1)(j) and 2(1)(ja) of the Act, 1970 and further it was a non patentable subject matter under section 3(d) of the Act, 1970.
Issue: Whether the subject matters lacks inventive step and also falls under the bar of section 3(d) of the Act, 1970?
Judgement: The Court held that the appellant had conducted a comparative study with the prior art to disclose that the cyclic substitutions have better activity than the compounds with acyclic substitutions. The subject matter of the patent has an average bacterial score of the compounds against three viral antigens as compared to non-cyclic substitutions, which do not have any activity against the said antigens.
The order by the controller of patents and design failed to consider this aspect, the court relied upon the case in Novartis AG vs. Union of India (2013) wherein it was stated that section 3(d) clearly sets up a second tier of qualifying standards for chemical substances to leave the door open for true and genuine inventions, but at the same time to check any attempt at repetitive patenting. Section 3(d) does not bar patent protection for all incremental inventions of chemicals and pharmaceutical substances.
In conclusion, the court asked the patent authorities to reconsider their order in light of the directions in the judgment.
Non patentable inventions
Bishwanath Prasad Radhey Shyam vs. Hindustan Metal Industries (1979) Supreme Court
Facts: The respondent Hindustan Metal Industries is a partnership firm which carried on business in manufacturing brass and German silver utensils. The appellant Bishwanath Prasad Radheshyam also had a business of manufacturing dishes and utensils. One of the partners of the respondent firm invented a device and method for the manufacture of utensils, which introduced improvement, convenience, speed, safety, and better finish to the goods produced. Subsequently, he got the alleged invention patented. Later, the respondent learnt that the defendant was using and employing the device and method, which was the subject matter of the former patent and filed a suit for permanent injunction against the appellant.
The appellant claimed that the method which was covered by the patent of the respondent that of a ‘lathe’ (headstock, adapter and tail stock) has been known and is openly and commonly used in the commercial world. Thereby, the invention was not a new manner of manufacture or improvement, nor did it involve any inventive step. Therefore, it must be revoked.
Issue: Whether the subject matters consists of an inventive step so as to be eligible for the grant of patent?
Judgement: The court upheld the objection of the appellant, by stating that for an invention to be patentable, an improvement on something which is already known before must be more than a mere workshop improvement. It must independently satisfy the test of invention or an inventive step. To be an improvement it must produce a new result or a new article or a better or cheaper article than before. Therefore, the invention of the respondent would not qualify for the grant of a patent.
OpenTV INC vs. Controller of patents and designs, (2023) Delhi High Court
Facts: The appellant company is engaged in providing interactive television solutions. It filed an application for patenting of a “system and method to provide gift media” which is stated to be “a network architecture and a method implemented on the same to enable the exchange of interactive media content distribution of any type of digital or tangible media”.
The application was refused on the ground that the subject matter falls within section 3 (k) of the Act, 1970 and therefore is not patentable.
Issue: Whether the subject matters falls under the bar provided under Section 3 (k) of the Act, 1970?
Judgement: The court stated that the subject matter is “various known components and technologies are being adapted in a manner so as to enable giving of a gift without human intervention except at the beginning where the gift and recipient is chosen by the sender”. The same is described in the form of a network in different embodiment formats and for the purpose of transmitting different media formats as well. The grant of patent would in effect be a monopoly related to a method of giving a gift and since it is a business method, no patent can be granted. As per section 3 (k), the exclusion in respect of business methods is an absolute one.
Conclusion
We live in a world where economies are highly knowledge-driven. Where the governments attempt to promote innovation in their citizenry. We need creative and inventive ideas that either bring in a new concept or improve an existing one. If a business or individual develops such a product or process, they would ideally want to have a proprietary right or monopoly over the technology and preclude others from using it.
It is indeed true that patents provide incentives for innovation but what cannot be ignored is that they also create temporary monopolies. The task of balancing the patent protection of the patentee with the public access to essential technologies is crucial to ensure that the benefit of technological advancement is shared by the society together.
A strong patent system supports the growth of a knowledge-based economy, where intellectual property and technological innovations are central to economic activity. The nations which have a strong system of patents are seen as leaders in the era of technology and innovation. This reputation enhances their global standing and influence in knowledge globalisation.
The patent also encourages the flourishing of different sectors of the economy and contributes to economic diversification which in turn reduces the reliance on traditional industries.
Frequently Asked Questions (FAQs)
What happens after the term of patent protection expires?
Justice Rajagopala Ayyangar Committee Report stated that the patent system was a kind of quid pro quo system. In this system, the inventor is granted the monopoly by the issuance of a patent for a fixed term of twenty years in exchange of disclosure of the invention to the public to be used freely after the patent term is over. The invention will enter the public domain once the protection period is over. This means that anyone will be free to make, use, sell, or import the invention without permission from the original patent holder.
Having the invention enter the public domain will ultimately allow for greater competition and innovation in the market, as other companies and individuals will be able to build upon the invention or create new and improved products or processes. Second, once a patent has expired and entered the public domain, the patent holder may stop receiving patent-related royalty payments. In addition, any licensing agreements in place with others will automatically be erased.
What is the term of a patent once granted?
Section 53 of the Act, 1970 stipulates that the duration of a patent granted in India is 20 years, starting from the date on which the patent application was filed. This means that the exclusive rights granted by the patent are valid for a period of 20 years from the filing date, provided that the patent holder meets all necessary requirements, including timely payment of renewal fees and compliance with other statutory obligations. After this 20-year period, the patent rights expire, and the invention enters the public domain, allowing others to use, make, or sell the invention without needing permission from the original patent holder.
What does the evergreening of patents mean?
Evergreen in layman’s terms means something that would last a lifetime. In the patent law, it is a process by which the patentee can extend the life of their patents in order to maximise their profits. In this endeavour, the patentee files multiple patents to cover different parts or aspects of the same invention. Herein, multiple follow-up patents are filed to further the protection period of the invention from its twenty-year limit. This process can be performed for inventions in any field. However, it is the most prevalent in the field of pharmaceuticals.
The ultimate goal is to ensure that there are no loopholes which the competitor might use to bypass the original patent and create a competing product or service without infringing the patent protection.
Can a patent be revoked?
Section 64 of the Act, 1970 deals with the grounds for revocation of a patent. The following are a few of the grounds mentioned:
The patent was granted on the application of a person not entitled under the provisions of this Act to apply.
The patent was obtained wrongfully in contravention of the rights of the petitioner or any person under or through whom he claims.
Complete specification is not new, having regard to what was publicly known or publicly used in India before the priority date of the claim.
The claims of the complete specification are obvious or do not involve any inventive step.
Any claim of the complete specification is not useful.
The patent was obtained on a false suggestion or representation.
Any claim of the complete specification is not patentable under this Act.
What is the doctrine of patent exhaustion?
The doctrine of patent exhaustion limits the rights of the patentee to control what others can do with an article embodying or containing an invention. As per the doctrine, the first or initial authorised sale of a patented item terminates all patent rights to that item. However, it only restricts the patentee’s right to the particular article sold and does not affect his right to prevent the buyer from making new copies of the patented invention.
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Our world embarks on a new journey with the launch of robots in every field. In the initial stage, robots are designed mainly to reduce costs and human power and are mostly used in industries. But now, robots are engaged in domestic work, sports, healthcare, mining, films, and also the nuclear industry, in which humans are at risk. In the realm of domestic work, robots are increasingly becoming indispensable assistants, performing a wide range of tasks from cleaning and cooking to laundry and yard work. This not only alleviates the burden of household chores but also enables individuals to focus on more fulfilling pursuits.
Healthcare is another area where robots are making a profound impact. Surgical robots offer greater precision and control, enabling minimally invasive procedures and faster patient recovery times. Exoskeletons and other assistive devices empower individuals with disabilities to regain mobility and independence.
In the mining industry, robots are being deployed in hazardous environments, such as deep mines and unstable terrains, to perform tasks that would be too dangerous or impractical for human workers. This not only enhances safety but also increases productivity and efficiency. The film industry has also embraced robotics, with robots being used for everything from stunt work and special effects to motion capture and animation. This technological integration has opened up new possibilities for cinematic storytelling and visual artistry. Even in the nuclear industry, where human presence poses significant risks, robots are playing a vital role. They are employed for decommissioning tasks, waste management, and radiation monitoring, ensuring the safety of workers and the environment. Let’s check out how robots are used in hazardous material handling and disposal.
Understanding hazardous material
Hazardous materials, also called HAZMAT, can be solid, liquid or gaseous substances that pose a risk to people’s health and environment. It exhibits characteristics of corrosion, explosion, ignitability and reactivity. It includes toxic metals, toxic chemicals, fuel, nuclear waste, radioactive waste and certain biological substances.
These HAZMAT substances may lead to cancer, respiratory issues, vomiting, and nausea while inhaling or swallowing them. If it is disposed of on land or in water directly, it will result in water pollution or environmental risks like diseases, contamination of underground water, and polluting air.
Robots for handling and disposal of hazardous material
Robots for handling and disposal of hazardous material play a vital role in ensuring the safety of workers and the environment. These robots are specially designed to operate in hazardous environments, reducing the risk of human exposure to dangerous substances.
One of the key applications of these robots is in the handling of radioactive materials. These materials, often found in nuclear power plants and research facilities, pose a significant risk to human health. Robots can be equipped with specialised shielding and remote control systems to safely handle radioactive materials, reducing the risk of contamination and exposure.
Another critical area where robots are employed is in the disposal of hazardous waste. Chemical spills, industrial accidents, and natural disasters can result in the release of toxic substances into the environment. Robots can be used to collect, transport, and dispose of these materials in a safe and controlled manner.
Robots for handling and disposal of hazardous material are equipped with a range of advanced features that enable them to operate effectively in challenging environments. These features include:
Remote control systems: Robots can be controlled remotely from a safe distance, allowing operators to avoid direct exposure to hazardous materials.
Specialised sensors: Robots are equipped with sensors that can detect and measure radiation, chemical vapours, and other hazardous substances. This information can be used to make informed decisions about how to handle and dispose of the materials.
Manipulators and grippers: Robots are often equipped with robotic arms and grippers that allow them to manipulate and grasp objects with precision. This capability is essential for handling delicate or dangerous materials.
Rugged construction: Robots for handling and disposal of hazardous material are built with rugged materials and construction to withstand harsh environments and ensure reliable performance.
These robots have proven invaluable in various industries, including nuclear power, chemical manufacturing, and environmental cleanup. By automating the handling and disposal of hazardous materials, robots help protect workers and the environment from potential harm.
As technology advances, we can expect to see even more sophisticated robots designed for the handling and disposal of hazardous materials. These robots will be equipped with artificial intelligence, machine learning, and advanced sensor technology, enabling them to operate autonomously and make complex decisions in real-time. This will further enhance their capabilities and effectiveness in keeping workers and the environment safe.
Let us see how robots help us in handling and disposing of hazardous materials. Some of the robots that handle and dispose of hazardous materials are mentioned below.
Hazardous material
Autonomous robots for disposal
Bombs
DRDO Daksh
Uranium
Microbots
Pathogens
UVC Disinfection Robots
Paint
Laser Coat Removal Robot
Dyeing
iCone Robot
Lead
Graphene Oxide based Microbots
Applications of autonomous robots in hazardous material handling
DRDO Daksh – Military- Daksh, a robot to destroy bombs
Daksh is a battery-operated, remote-controlled robot created by the Defence Research and Development Organisation (DRDO), India, to identify, locate and destroy hazardous materials like bombs.
It comes with four wheels, an arm and a shotgun. The wheels make it easy to navigate and locate bombs.
The arm is used to lift any objects and scan for bombs using a portable X-ray device and destroy them with a water jet disrupter.
The shotgun breaks locked doors and scans for bombs.
Microbots
Microbots are tiny, nanosized, self-propelled particles created by the American Chemical Society (ACS) to capture, separate and remove hazardous substances like uranium from nuclear wastewater.
The wastewater generated in the nuclear reactor contains uranium and isotopes, which are toxic in nature.
Microbots are remarkable substances composed of a micromotor attached to a rod-shaped metal-organic framework nanoparticle known as ZIF-8. Iron atoms and iron oxide are strategically incorporated into the structure to enhance stability and impart magnetic properties to these microbots.
Once introduced into wastewater, microbots undergo a captivating process. They interact with hydrogen peroxide present in the wastewater, triggering a fascinating reaction. The hydrogen peroxide is converted into oxygen bubbles, which serve as the propulsion mechanism for the microbots. The microbots harness the energy released from this reaction to propel themselves at an astonishing speed that is 60 times their own length per second. This exceptional movement allows them to navigate and explore the wastewater effectively.
After the wastewater treatment process is complete, the microbots are skilfully retrieved from the wastewater using a magnet. This magnetic retrieval process leverages the iron oxide component integrated into the microbots. Once retrieved, the microbots undergo a crucial step where the uranium that has been captured during the wastewater treatment process is stripped off. This step ensures that the microbots are free from any residual contaminants before they are sent for recycling.
The recycling process for microbots is designed to recover and reuse valuable materials. It involves breaking down the microbots into their constituent components, which can then be repurposed for future applications. This recycling process promotes sustainability and reduces the environmental impact associated with the manufacturing of new microbots.
The combined efforts of hydrogen peroxide conversion, magnetic retrieval, uranium stripping, and recycling contribute to the remarkable efficiency and eco-friendliness of microbots in wastewater treatment. Their ability to propel themselves, selectively capture uranium, and undergo recycling processes showcases their potential as innovative and environmentally conscious solutions for wastewater management.
DJI Drones with FlytBase Dashboard- Drone for disaster management
Drones are flying objects with cameras that fly around any area of risk and collect visual data for interpretation.
DJI drones are drones with sensors that can collect information regarding chemicals, vapour and radiation in the hazardous area once they fly around it.
DJI Drones with Flytbase Dashboard is a web panel connected with multiple drones to control and manage drones over a network that helps in accurate visual detection of the entire hazardous area.
Using this Flytbase Dashboard, drones can be programmed to do a perimeter check and provide vital situational information.
Drones can provide the live video feed to HAZMAT experts so that they can find the exact source of any hazard. (For example, gas leak, etc.)
It is better at calculating risks in real time than the man in the HAZMAT suit.
Pipeline Robots-A6 Optical Methane Detector Robot
The leakage of natural gas in underground pipelines that have been placed to extract methane gas will result in an explosion.
If the gas is consumed by people or animals, it causes severe skin problems, lung disease, cancer, and, in some cases, it may lead to death.
The robots serve as a platform for sensors and repair technology that can adapt to each situation.
It can provide precise results by moving along the surface of an underground pipeline to scan for any leaks in the pipe.
Several spray liners, structural lining and sealants can be used to make repairs. The robot can also operate in a pressurised environment.
UV-C Disinfection Robots: UV-C Disinfection Robots with sensors and UVC lamps
The UV-C Disinfection Robots are used in surface decontamination in the cleaning process.
Manual cleaning requires more time and skilled staff who should be aware of how to use radiation for disinfection.
This is where disinfection robots step in to kill microorganisms like viruses and bacteria in the hospital by UV light.
It has wheels to move and different types of sensors that detect temperature, humidity, obstacles and moving objects in its pathway.
It goes around the hospital and senses the presence of any microorganisms and kills them by UV radiation.
Laser Coating Removal Robots- A laser coat removal robot to remove old paint
In the field of aviation, aircraft need to be stripped and recoated as a part of maintenance.
Removing the paint involves soaking airframes with large amounts of solvents followed by hands-on scrubbing by technicians, which can pose health hazards to personnel and create a significant environmental impact.
This LCR robot removes paint by passing a laser to the aircraft surface, which collects the paint particles.
It provides 60% more efficiency than the traditional depainting process.
It can also eliminate the need for storage, handling, and disposal of chemical solvents used in traditional methods, saving costs and people from environmental hazards.
In a similar way, automated paint robots paint the aircraft with accuracy rather than traditional spray gun methods.
iCone Robots: iCone machines in which the liquor flows in both directions, inside out and outside in
Dyeing is a very complex process that requires dips of textiles in a dyeing bath at the correct temperature and liquor ratio.
It has been carried out by hand in most of the factories.
Even preparing a dyeing bath, which is a mixture of different chemicals, is carried out by hands and poses a great risk to human health.
iCone Robots, introduced in 2014, brings a solution to this problem.
The dye silos receive a signal from the control system, which might order (e.g., dispense 30 grammes each of red, yellow, and blue dyes).
Upon receiving this signal, the dyes are automatically weighed, dispensed into a container and transported to a dye dissolving station.
Here, the dye is brought to the required temperature and then runs into the dyeing machine at the correct time.
By using these robots, high levels of colour authenticity have been achieved.
Mining Robots: A movable drilling robot
Mining robots are used to drill holes in mines for blasting or exploration.
Gold, diamonds, platinum, and some rare minerals are extracted in underground mines by hauling, drilling, and exploration processes.
This environment is dangerous to humans due to the risk of explosions, poisonous gases, mine collapses, etc.
These mining robots come with sensors to detect hazardous gases, unstable rock structures and some other dangers that may not be visible to the human eye.
Graphene Oxide-based Microbots
It helps in removing lead, a toxic metal present in industrial wastewater.
Microbots structure consists of nanosized multilayers of graphene oxide, nickel, and platinum, providing different functionalities.
The outer layer of graphene oxide captures lead on the surface, and the inner layer of platinum functions as the engine decomposing hydrogen peroxide fuel for self-propulsion, while the middle layer of nickel enables external magnetic control of the microbots.
GOx microbots effectively remove lead 10 times better than non-GOx microbots.
Benefits of using autonomous robots
Increased accuracy: Autonomous robots can perform tasks with a high degree of precision and accuracy, minimising errors and reducing the potential for mistakes. This is especially important in industries such as manufacturing, healthcare, and logistics, where even minor deviations can have significant consequences.
Higher productivity: Autonomous robots can work 24/7 without breaks, increasing overall productivity and efficiency. They can handle repetitive tasks quickly and consistently, freeing up human workers to focus on more complex and creative activities.
Reliability: Autonomous robots are designed to operate with minimal downtime, ensuring reliable and consistent performance. They are not subject to fatigue, distractions, or other human factors that can impact productivity and accuracy.
Flexibility: Autonomous robots can be programmed to perform a wide range of tasks and adapt to changing requirements. This flexibility allows them to handle different tasks and applications without the need for extensive reprogramming or modifications.
Safe working environment: Autonomous robots can take on dangerous or hazardous tasks, reducing the risk of workplace accidents and injuries. This is particularly beneficial in industries such as mining, construction, and chemical processing, where human workers are exposed to potential hazards.
Reducing Workplace Accidents: By automating hazardous tasks, autonomous robots can help reduce the number of workplace accidents and injuries. This can lead to improved safety records and lower insurance premiums for businesses.
Enhanced efficiency: Autonomous robots can optimise processes and workflows by identifying inefficiencies and suggesting improvements. They can also collect and analyse data to provide insights into operations, allowing for more informed decision-making.
Cost-effectiveness: While the initial investment in autonomous robots may be significant, the long-term cost savings can be substantial. Autonomous robots can operate with lower energy consumption, require less maintenance, and have a longer lifespan compared to traditional equipment.
Easy to integrate and replace: Autonomous robots are designed to be easy to integrate into existing systems and processes. They can be deployed quickly and efficiently, with minimal disruption to operations. Additionally, they can be easily replaced or upgraded as technology advances, ensuring that businesses stay competitive.
These robots help people by detecting anomalies and figuring out a solution to prevent or destroy them. By integrating robots in their respective fields, we can have a chance to live in a healthy and safe workplace with increased productivity.
Conclusion
The robots lend their hand in making our environment clean and safe. They not only perform tasks efficiently but also protect people from hazardous environments. As cutting-edge technology, robotics has immense potential for HAZMAT response and is quickly becoming an integral part of the standard response in many countries. These robots now become a part of all the HAZMAT operations by collecting, analysing and interpreting the situation with their machine vision cameras, senses risk using sensors and also, using its advanced mechanics it finds a way to solve it or alerts the appropriate team.
Artificial intelligence (AI) has been silently existing for a long time, almost a decade, but with the advent of ChatGPT, the popularity of AI has skyrocketed. It has been really surprising to know how much AI can do, as well as scary to understand how much AI knows about you. AI has been continuously spreading its feet into each and every field of our lives and making us more and more tempted to incorporate it. However, many of us are still sceptical about involving AI in our daily tasks and becoming dependent on it. But as per human nature, we always accept things that lower our burden and save our time as well as money and AI can surely do all of this. AI is currently being used in almost all the industries, from academics to aeronautics, production to marketing, and finance to management. This can be proven by the record increase in the investments in AI startups recently. The most interesting area in which AI has affected each and every human being has been the healthcare industry, with health being our primary need for surviving. AI in healthcare is being involved from diagnostics to patient care, thus reducing the labour and cost while maximising the benefits. Although the promising future of the healthcare industry after the involvement of AI can not be denied, it also poses many challenges regarding technology as well as the demanding environment. Considering the importance of healthcare in our lives, this article highlights the current issues in this industry and provides the benefits along with the challenges in using AI in different sectors of the healthcare industry. Here we will also get to know the steps needed to overcome the challenges posed by the advent of AI in healthcare to boost the efficiency and effectiveness of the healthcare personnel.
Problems in healthcare industry
Workforce shortage
A shortage in the number of healthcare professionals, including nurses, physicians, and specialists, affects patient healthcare and outcomes. It also increases the workload on existing staff, leading to a decrease in patient satisfaction and delivery.
Rising cost
The continuous increase in healthcare costs is affecting both patients as well as healthcare providers. The maximum number of patients could not afford the advanced treatments and had to compromise with their well being. It’s a challenge to maintain a balance between quality healthcare and financial affordability.
Access and equity
There is an uneven distribution of resources based on the geographical locations of the patients and their socio-economic status. The patients living in the remote areas do not have access to advanced medical facilities, leading to unfair practices and corruption.
Administrative responsibilities
The healthcare personnel have to manage a lot of paperwork and administrative tasks along with their duties. This leads to a decrease in their efficiency and productivity, resulting in low patient outcomes and satisfaction.
AI in healthcare
The issues mentioned above are being addressed with the help of AI and the result shows a lot of promise in the upcoming years. AI is continuously changing the way the healthcare industry works at all levels. It is involved from the patient diagnosis to patient care and beyond. AI is not only improving the basic healthcare and disease outcomes but also involved in drug discovery. Given below are the advancements in different sectors of the healthcare industry with the involvement of AI.
Research institutions
AI has accelerated the process of drug discovery by decreasing the time for clinical trials. It has also helped in testing synthetic candidates for drug trials as well as to repurpose old drugs to be used for the treatment of new ailments. The advent of AI has provided new ethical alternatives to human and animal testing by simulating human physiological responses to the drugs. This has led to new and fast ways of drug discovery, leading to improved disease outcomes.
Private sector
The private sector in this industry is most benefitted from AI as it is involved with both patients and healthcare providers. The patient suffering with initial symptoms can now easily use basic healthcare from the comfort of their home with the help of various applications and get a fast tele-consultation as well. This can also provide basic healthcare to remote areas and thus reduce disparity in access to medical facilities.
AI can also help in hospital visits by selecting suitable specialists, appointments, and prescriptions. The chatbots and virtual assistants provided by AI are the real problem solvers to gather data and suggest the best treatment along with a plan of action. AI can analyse genetic and clinical data to improve patient outcomes and reduce the use of trial and error methods.
The sector of the healthcare industry that is most affected by AI is pathological and clinical testing. The roles most affected by AI are those of pathologists and clinicians. AI is used to analyse images and predict disease outcomes, which has led to improved diagnostic accuracy. These analyses are then translated to human language, which results in the reduction of jobs in these areas.
Hospital sector
AI has also improved the care of hospitalised patients by providing them with the personalised treatment plan, leading to better patient outcomes. AI technology also assists in surgical procedures and provides accurate predictions in terms of further treatment and at-home care. It reduces the load of hospital personnel by taking over their paperwork and managing their administrative responsibilities, thus improving operational efficiency. It is also involved in patient monitoring along with pre and post-hospital care.
Pharmacy sector
AI also helps in maintaining and reducing the workload of pharmacies. It is involved in prescription processing, inventory management, and supply chain optimization. AI can also suggest medicines based on patient’s data and provide predictive analysis for patient care.
The positive impact of AI on healthcare jobs
Artificial intelligence (AI) is transforming the healthcare industry, and with it, the job market. While some fear that AI will replace human workers, the reality is that AI is more likely to create new jobs and improve existing ones.
AI-enabled diagnostics
One of the most significant ways AI is impacting healthcare jobs is by aiding in diagnostics. AI algorithms can analyse large amounts of data to identify patterns and trends that would be difficult for humans to detect. This can help doctors diagnose diseases earlier and more accurately, leading to better patient outcomes.
For example, AI-powered diagnostic tools can help radiologists identify cancerous tumours on MRI scans with greater accuracy than human radiologists alone. This can lead to earlier detection and treatment of cancer, which can save lives.
Automated administrative tasks
AI can also automate many of the administrative tasks that healthcare professionals must perform, such as scheduling appointments, processing insurance claims, and managing patient records. This can free up healthcare professionals to spend more time on patient care, which can lead to improved quality of care.
For example, AI-powered chatbots can answer patients’ questions about their appointments, medications, and insurance coverage. This can help patients get the information they need quickly and easily, without having to wait for a human operator.
Personalised medicine
AI is also making it possible to develop personalised medicine, which is the tailoring of medical treatment to the individual patient. By analysing large amounts of data about a patient’s health, AI can help doctors develop treatment plans that are more likely to be effective and have fewer side effects.
For example, AI-powered algorithms can help doctors predict which patients are at risk of developing certain diseases. This can help doctors take steps to prevent these diseases from developing in the first place.
New jobs in AI development and implementation
The development and implementation of AI in healthcare is also creating new jobs. These jobs include AI engineers, data scientists, and healthcare informaticians. These professionals are responsible for designing, building, and deploying AI systems in healthcare settings.
For example, AI engineers are responsible for developing the algorithms that power AI-enabled diagnostic tools. Data scientists are responsible for collecting and analysing the data that AI systems use to learn. And healthcare informaticians are responsible for ensuring that AI systems are used safely and effectively in healthcare settings.
Types of AI in healthcare
Artificial intelligence (AI) has the potential to revolutionise healthcare by automating tasks, improving diagnostics, and personalising treatments. There are many different types of AI that can be used in healthcare, each with its own strengths and weaknesses.
Machine learning
Machine learning is a type of AI that allows computers to learn without being explicitly programmed. This is done by feeding the computer large amounts of data and then letting it find patterns and relationships on its own. Machine learning can be used for a variety of healthcare applications, such as:
Diagnosing diseases.
Predicting patient outcomes.
Developing new drugs.
Identifying fraud and abuse.
Natural language processing
Natural language processing (NLP) is a type of AI that allows computers to understand and generate human language. This can be used for a variety of healthcare applications, such as:
Analysing patient records.
Generating reports.
Providing patient education.
Communicating with patients and their families.
Computer vision
Computer vision is a type of AI that allows computers to interpret images and videos. This can be used for a variety of healthcare applications, such as:
Detecting tumours.
Diagnosing skin diseases.
Analysing medical images.
Guiding surgical procedures.
Robotics
Robotics is a type of AI that allows computers to control physical objects. This can be used for a variety of healthcare applications, such as:
Performing surgery.
Delivering medication.
Assisting with rehabilitation.
Providing companionship for patients.
Challenges in AI implementation
In light of the above-mentioned problems, although AI provides relevant solutions, incorporating AI in the healthcare industry is not an easy task. Adoption of this new technology will lead to disruption in the existing workflow of the industry. Although AI will reduce the workload of the professionals, it will also cause many professionals to lose their jobs due to automation of the majority of tasks. The main areas that are under threat would be pathology and radiology, along with administrative and clerical roles. Moreover, overreliance on AI can lead to loss of critical thinking and clinical judgement. There will be a reduction in the job satisfaction of the professionals who will be continuously required to acquire new skills. Also, the high-end infrastructure requirements for the incorporation of AI in the healthcare industry will increase the overall cost considerably.
Integrating AI in healthcare also raises ethical as well as legal concerns about data privacy, accountability, algorithmic biases, and data security. These concerns create doubts, which lead to the demand for more stringent regulations for the incorporation of AI in the healthcare industry. Now the most valuable thing that AI misses is the emotional touch, which is of major importance especially in healthcare, where patients come with a lot of stress and pain. The most challenging aspect of AI implementation would be this human touch, which creates a big gap in the complete acceptance of AI throughout the industry. However, with the growing advancements in technologies, we can never be sure that this drawback could not be overcome.
Strategies to overcome the challenges
The most important strategy to overcome the challenges in AI implementation would be to take a balanced approach that can complement the existing workforce rather than replace it. There is a need to build collaboration between both to reduce the negative impact. Policymakers must address the ethical and legal implications, which will lead to improved data governance and regulations. The organisations must start investing in training and upskilling of the professionals. Though implementation of AI will lead to few job losses, it will also create a new line of job opportunities related to AI development and management. Thus, it is needed to welcome AI in all the fields, including healthcare, with open minds and hearts and move towards an improved and advanced future.
Conclusion
AI creates a whole new world of possibilities that needs to be explored and utilised in a balanced way. We need to embrace this collaboration of AI and harness its power for our advantage while prioritising the well-being and job satisfaction of the working professionals. The healthcare industry needs to understand the dynamics and adapt to the changing landscape. The professionals need to acquire skills and remain competitive to stay viable in the market. Although it is difficult to predict the exact impact of AI implementation in the healthcare industry in the long-term, it can never replace the experience and skills of humans along with the emotional touch. It has to be understood where we need to implement AI and where the human is irreplaceable, so that the benefits of AI are fully explored and shared fairly. Finally, what I understand is that AI is not here to slash the jobs but only to shift the type and nature of jobs.
This article has been written by Diksha Shastri. The article covers the entire process for the constitutional amendments in India and lists down the most important constitutional amendments over the years with their impacts and repercussions, leading to landmark judgements by the Supreme Court. It covers the entire journey of the constitutional amendments, from the first till the most recent constitutional amendment, that is, the 106th Amendment.
Table of Contents
Introduction
Right after India’s independence, the drafting of the Indian Constitution began. Were you aware that the fundamental right of freedom and expression had no restrictions to it in this first version? That’s interesting, right? Then, how do you think those reasonable restrictions were imposed?
Any amendment that is brought to the Indian legal system must be in accordance with the Constitution of India(hereinafter referred to as “the Constitution”) which governs all the entire republic of India.
So, what happens when a change is much needed in the nation of India, but the existing Constitution does not express anything about it? The answer lies in the amendment of the Constitution. By amending the Constitution, the legislative framework can be changed. This article also explains the extent to which the legislative framework and the Constitution can be amended in India.
This article covers an in-depth study of all the important constitutional amendments in India, till date. So much history lies behind making the Constitution as it is today, let’s take a journey and see how it all started!
What is meant by constitutional amendment
Any change or modification to the Constitution of India is known as a constitutional amendment. For a constitutional amendment to take place, the Parliament has to follow the process set by the provisions of the Constitution. An amendment takes place by making a change in a particular provision by adding new information or omitting the previously existing information.
Different ways to amend the Constitution of India
As the Constitution is the most important legal document that also governs the entirety of our nation, it is vital that the amendments take place only after careful consideration. As a result, the amendment of our Constitution is treated differently than the amendment or changes to an ordinary law.
Article 368 allows the Parliament for three different types of constitutional amendments :
Voting by a simple majority of both the houses of the Parliament;
Voting by a special majority of the Parliament; and
Lastly, for the special provisions mentioned earlier: voting by special majority and expressed consent of half of State legislatures, by simple majority.
Procedure to amend the Constitution of India
For the three types of amendments mentioned above, the following procedure is followed:
Amendment with a simple majority
As per Article 368, some of the provisions of the Constitution can be amended by obtaining a simple majority of members present and voting. A simple majority means that 50% of the members present and voting must vote in approval of the proposed amendment.
The following type of provisions can be amended through a simple majority:
Formation or abolishment of Legislative Councils of a state;
Alteration of names of existing states; and more.
Special Majority of the Parliament
In other cases, where the subject of amendment is a bit more complex, a special majority of the Parliament is required. A special majority of the Parliament involves two things:
Majority of more than 50% votes in favour of the amendment from total members in each House of Parliament; and
two-third majority of each House present and voting.
Special Majority is required in the following circumstances:
To change the provisions of the Constitution without hampering the basic structure;
To remove the judges of High Courts and the Supreme Court;
To remove the Comptroller and Auditor General (CAG) of India; and
For matters pertaining to national emergency.
Special Majority with ratification by state legislatures
Any changes to the provisions of the Constitution that relate to the federalistic nature and the polity of India, must be passed only after obtaining consent of at least half of the state legislatures through a special majority.
Following type of changes need a ratification of the state legislatures:
Presidential Elections;
Scope of power of the Union and states; and
Any provisions related to the Supreme Court, High Court of any state, etc
Keynote: for any type of amendment of the Constitution, it is mandatory to pass the Bill in each House of the Parliament separately.
A brief history of constitutional amendments in India
Soon after the independence of India, the Indian Constitution was adopted by the Constituent Assembly in November 1949 and further came into force on 26th January 1950. No later than 15 months of its inception by India, multiple issues were faced due to a lack of restrictions of rights. Due to this, the need to amend the Constitution for the first time was felt. Hence, Article 19(1)(a) was changed very heavily to incorporate these restrictions and bring social order by enactment of the Constitution (First Amendment) Act, 1951.
Since then, there have been a total of 106 Constitutional Amendments passed in India. While the journey of constitutional amendments began with bringing about socialist and welfare reforms, and to promote equality, soon, the extent of powers, the basic structure of the charter document was also being changed. Many of the constitutional amendments have faced serious criticism over the years, many have been repelled, and many have brought about positive changes. Let us take a look at the entire list of all important amendments to the Indian Constitution.
List of important amendments of Indian Constitution
Now that we have understood the scope of the power of Parliament to amend the Constitution in brief, it’s time to take a look at the list of most important amendments until now. There have been over 100 constitutional amendments . Moreover, from the above case laws discussed in brief, we can also get an idea that these amendments have more or less sparked controversies and brought about significant changes and improvements to the overall Indian legal framework.
Constitution (First Amendment) Act, 1951
This wasn’t the only change in the fundamental rights brought through the important Constitutional Amendment of 1951. “Interest of the general public” was also added to Article 19(6) in the freedom to practise trade and profession.
Another important aspect of the First Constitutional Amendment was to add provisions in order to secure the validity of the zamindari abolition laws set up at the time. Let’s see a list of all amendments brought through the First Constitutional Amendment for a better understanding:
Article 15: Article 15 was amended to allow the State, irrespective of the provisions in Article 29 to make special provisions for the betterment of socially and educationally backward citizens, Scheduled Castes (SCs) and Scheduled Tribes (STs) in India.
Article 19: Without any reasonable restrictions on the fundamental right to free speech, its abuse increased. In order to eliminate this abuse, the provision was revised to ensure that the fundamental rights are not absolute.
Insertion of Article 31A: The Article was inserted to protect certain laws that would be passed for acquisition of property, to be valid even if it infringed upon the fundamental rights enshrined.
Article 31B: New Article 31B was also inserted to validate certain Acts and Regulations. As per this article, no law passed under the Ninth Schedule would be held void on any ground of inconsistency by any type of judgement of the court.
Constitution (Second Amendment) Act, 1952
After the population census of 1951, it was found that the population within the states and territories was not in accordance with the President’s order. As a result, there was a need to readjust the territories.
In 1952, the Constitution (Second Amendment) Act passed to make changes in the number of members elected in the House of the People, which means the Lok Sabha. These changes were proposed to meet the requirements for various Union Territories (UTs) in India. Article 81, which provides for the Constitution of the House of the People was amended to relax the upper limit of members in the House of People, for the purpose of readjustment of the states. Before the amendment, Article 81(1)(b), each state was divided into the territorial constituencies and not less than one member was selected for a population of 7,50,000 and not more than one was selected for the population of 5,00,000. For the purpose of readjustment, and to make the representation of states better, the upper limit of not less than one member per 7,50,000 population was omitted.
Need for the 2nd Constitutional Amendment
This Bill was introduced in the Parliament in June 1952, because there was a need to reduce the upper threshold for maximum population for a seat in the Parliament. Before this important amendment to the Constitution of India, the total number of members allowed in the Lower House of Parliament was 500. Moreover, it also stated that one member represented more than the population of 7,50,000 people. However, with the changing trends of population in the country, post independence, it was necessary to let go of this maximum limit, as a result of which Article 81 of the Constitution was to be amended.
Important provisions of the Second Amendment
Coming into effect on 1st May 1952, the second constitutional amendment provided for the amendment of Article 81(1)(b) to omit the words “not less than one member for every 7.5 lakh population”, that is the upper limit or maximum limit on the population.
Constitution (Fourth Amendment) Act, 1955
In the early years of independence and establishment of the Constitution, there was a great disruption because of the conflict between right to property and abolishment of the zamindari system. In 1955, the Constitution (Fourth Amendment) Act, 1955, was passed to include all the laws passed for abolishing the zamindari system that would fall under the Ninth Schedule to the Constitution. It is a special provision that protects certain laws listed in it, from the scope of judicial review. These laws were majorly related to the acquisition of lands and the compensation provided in exchange for such acquisitions. For this purpose, Articles 31 and 31A were amended (after the recent wide interpretation of Article 31 in a recent judgement by the SC).
Purpose of the 4th Constitutional Amendment
Due to certain recent decisions of the Supreme Court of India in 1955, the need was felt to amend many provisions of the Constitution to eradicate the ambiguity in wordings, especially conferring on Article 31. The statement of objects and reasons to this Act denotes that even though the wordings in the two sub-clauses of Article 31 were different, the interpretation of the Supreme Court was the same. Hence, there was a need to improve the clarity in the wordings of Article 31.
Moreover, this Amendment Act also served the following purposes:
To facilitate the land reform measures over the agricultural land in India;
Improve the planning for urban and rural areas in the country and to remove the slums; and
For the interest of the greater public, for facilitation of take over of a commercial or industrial undertaking.
Important provisions of the 4th Amendment
Many provisions of the Constitution of India were amended as well as added as a part of this Act. Let us take a look at the various changes in depth:
Changes in Article 31
The amendment of Article 31 as per the Act, removed the fundamental right to property and switched it to a legal right. This was done to facilitate the abolishment of the Zamindari system.
New Article 31A
This Article was introduced to protect certain laws from being held as unconstitutional under Article 13. The following types of laws were included:
Laws for the acquisition of estate by the State and the payment of compensation;
Take over of property management for a limited period by the State;
Amalgamation of corporations; and
Modification of shareholders, etc.
All of the laws in relation to the above objectives, were granted protection under this new article against being held as unconstitutional on the grounds of inconsistency with the fundamental rights under Articles 14 and 19.
Article 31B
This article was introduced to validate certain acts and regulations passed by the Parliament and specified in the Ninth Schedule. It validated certain laws passed for the furtherance of the land reforms passed by the governments of various states.
Article 39(b)
Sub-clause (b) of Article 39 was added to facilitate the directive principles of state policy by stating that the concentration of wealth and resources was to be avoided at all costs through various implementations.
Amendment to the Ninth Schedule
The ninth schedule was amended to introduce the following Acts:
This Act falls under one of the most important amendments to the Constitution of India as it introduced the concept of Union Territories in India. After the independence of India, there have been time and again instances of reorganisation of States. Within the first few years, a states reorganisation committee was set up, under which suggestions were given. The Constitution (Seventh Amendment) Act, 1956 was enacted to implement those suggestions.
Importance of the 7th Amendment
The States Reorganisation Act, 1956 was passed on 31st August 1956 to introduce 14 states and 5 union territories. This had led to riots and conflicts, resulting in the division of the States of Gujarat and Maharashtra, and Bombay was held to be a separate state.
Major changes brought by the 7th Constitutional Amendment Act
The amendments made under this Act were applicable and enforced from October 1st 1956. The major changes were:
Union Territories (UT) were introduced;
Three categories of states were abolished (Part A, B, C and D);
New States were established;
Boundaries of existing states were altered (New states like Kerala were formed by merging the territories of Travancore, Cochin with Malabar dist. Madras. Some were even merged, such as Kutch and Saurashtra were merged into Bombay);
The role of Rajpramukhs (as discussed below) was omitted.
Note:
Part A states consisted of 9 governor’s provinces of British India such as the Ajmer-Mewara, Nagpur Province, Eastern Bengal and Assam, Gwalior, Baluchistan, etc.
Part B contained 9 princely states of British India such as Hyderabad, Travancore, Bhopal, Junagadh and more.
Part C states were the chief commissioner’s provinces of British India and some princely states such as Delhi, Andaman and Nicobar Islands, and Assam.
Part D states contained provinces governed by the Lieutenant under British India
Important provisions
As a result of these changes, Article 1 of the Constitution of India was also changed along with the First Schedule.
Apart from that, Article 80 and Fourth Schedule were changed for the changes in the seats of Rajya Sabha after the new UTs were introduced. Then, to abolish the Part C states in India and establish the new UTs officially, many other changes were made to different articles. Even Article 131 was revised to facilitate the abolishment of Part B states.
Article 153 of the Constitution of India was also amended by addition of a proviso there to remove possibility of technical bar to appointment of Governor of two or more states.
The concept of a rajpramukh referred to an administrative position or title in India from before independence. One can think of a rajpramukh as an appointed governor of an Indian province or state. Now there was no longer a need to have the title. Hence, this amendment aimed to abolish the title. The aim was to remove their title from the appointment as a President, Vice President (VP), or even for the exclusion from presidential and executive powers. To make this possible, several provisions of the Constitution were altered.
A final change was made to Article 216, to remove the proviso to it. The proviso basically stated that the President had the power to limit the number of judges being appointed at any High Court. However, since this was open to changes frequently, it was decided to omit the proviso altogether.
Constitution (Tenth Amendment) Act, 1961
Through this Amendment, a new Union Territory was introduced officially in India. The UT of Dadra and Nagar Haveli was listed as the 7th UT of India by amending Article 240(1) under this Act.
Need for the 10th Amendment
Until 1954, the UT of Dadra and Nagar Haveli was a Portugal colony. The issue arose when even after attaining independence from the Portuguese, the territory was considered at large to be under their rule by the international organisations. Resultantly, a panchayat was formed for the free territory of Dadra and Nagar Haveli.
In 1961, it was decided to merge the territory of D&NH with the Republic of India through an agreement with the then Prime Minister Jawaharlal Nehru.
Provisions of the 10th Amendment
Amendment to the First Schedule
The First Schedule to the Constitution was amended under this Act to add UT of Dadra and Nagar Haveli as the 7th UT of India.
Article 240(1)
This sub-clause was amended to include the union territory and to allow the President of India to make rules and regulations for maintaining peace, development, and harmony in the government of the newly established union territory.
Constitution (Fifteenth Amendment) Act, 1963
Introduced in 1963 in the Lok Sabha to give effect to various changes to the Constitution that had been in talks since a while, the 15th Constitutional Amendment Act, 1963 is one of the important constitutional amendments in India.
Purpose of the 15th Amendment
In November 1955, the Fifth Constitutional Amendment Act was introduced in the Lok Sabha. However, due to various reasons it lapsed, and only one change was introduced, and others remained. These changes were reintroduced through the 15th Amendment.
Apart from this, another major purpose for bringing this amendment was to increase the age of retirement of the judges of the High Court and Supreme Court.
Importance of the amendment
Apart from increasing the age limit for retirement, this amendment also allowed the High Court to issue directions and writs in their territory.
Important provisions of the 15th Constitutional Amendment
Article 217 of the Constitution which provides for the conditions and appointment of a Judge in a High Court of India, was amended under this Act to raise the age of retirement of judges from 60 to 62 years. Similarly, Article 224 of the Constitution was also amended to change the retirement age of an additional or acting judge of the High Court to 62 years. Article 224A was also inserted to the Constitution for the appointment of retired judges at the sittings of High Courts. Further, the power to decide on the matters of appointment of the judges, especially in consideration of age, was transferred to the President, and an amendment was made to Article 124 accordingly.
Besides, in the past when the High Court judges were transferred, they could not practise in any of the courts they held office in. Since this seemed to be a bit unfair, under this major 15th Constitutional Amendment Act, Article 220, if the Constitution was altered to allow retired permanent High Court judges to practise or plead before the Supreme Court and the other High Courts, except the one they were posted in last. This made the transfer of judges easy and also helped them gain more options to practise post retirement.
Until this Amendment, when transferred from one posting to another, the judges had to bear all costs. Thus, a new clause to Article 222(2) was introduced, which provides for compensation to be paid to the judges to facilitate their transfers. Further, to allow the retired judges to be at the Supreme Court, Article 128 was also amended.
With all these significant changes, the most important change was made to Article 226 of the Constitution. It was changed to allow the High Courts in India to issue:
Writs;
Orders; and
Directions
against the government. This was a great step which allowed the general public to hold the state and central government responsible for their wrongdoings.
Before this Amendment, all civil servants had no opportunity to be heard, or represent their side, when facing charges of dismissal. However, this Amendment has brought that change. This led to the amendment of Article 311 which gives a provision for the dismissal, removal or reduction in the rank of the civil servants of a state. Moreover, with respect to the appointment of Chairman of the Public Services Commission Article 316 was amended to allow the appointment of acting chairman in case of the absence of the chairman.
Constitution (Nineteenth Amendment) Act, 1966
The enforcement of this Act was the result of an important recommendation of the Election Commision to abolish the election tribunals and allow election petition trials to be handled by the High Courts, due to which Article 324 of the Constitution was amended.
Need for the 19th Amendment
When it comes to the political system of India, the 19th Amendment is really important. It shaped the way India’s politics works today. Due to many problems, there was a need to remove the election tribunal and transfer their powers to the High Court.
Major changes in the Constitution
After its approval on 11th December, 1966, the 19th Amendment came into force, and brought the following change to the Constitution of India:
Amendment of Article 324
Article 324(1) was amended to remove the words related to the setting up and appointment of the election tribunals to decide on the matters of elections.
Constitution (Twenty-First Amendment) Act, 1967
In India, we have an official list of languages as a part of the 8th Schedule to the Constitution. Before the Twenty-first Amendment, Sindhi was not a part of this official list. This amendment was passed to change this after consistent demands from the Sindhi community and Sindhi speaking people across the nation.
Origin of the 21st Amendment
The Bill for enforcing the twenty-first amendment was enacted in the Rajya Sabha on 20th March, 1967 and was introduced in April 1967. The reason for this amendment was the demand of the Sindhi-speaking people to incorporate it in the Eighth Schedule of the Constitution.
Importance of the 21st Amendment
The Linguistic Minorities Commission, along with the Sindhi-speaking Indians were of the belief that Sindhi was also a part of the official languages recognised under the 8th schedule. As a result, the 8th Schedule was amended to include Sindhi amongst other official Indian regional languages.
Constitution (Twenty-fourth Amendment) Act, 1971
The 24th Amendment Act was a consequence of the judgement passed by the hon’ble Supreme Court in the case of IC Golaknath. This was the first judgement that did not approve the Parliament to have powers that could amend the Constitution in any manner they wanted. Which means that this decision reversed the earlier ones, passed by the same court on very similar aspects.
Thus, Article 368 was amended because due to the increasing number of cases arising before the courts all across India, to challenge validity of the land reform laws, and other laws, it was important to expressly mention that the power of Parliament to amend the Constitution was exhaustive. This step resulted in a sort of unlimited power to the Parliament.
However, there was another provision which still protected the fundamental rights, Article 13. To make the power even more exhaustive, Article 13 was also amended to protect the laws passed under Article 368 from being unconstitutional under Article 13.
A final important change was also introduced to make the President’s assent mandatory for all constitutional bills. As a result, sub-clause (c) to clause (2) of Article 368 was amended.
Objective of the 24th Amendment
The objective behind this important amendment of the Constitution of India was to overcome the difficulties that the government faced in giving an practical effect to the Directive Principles of State Policies (hereinafter referred to as “DPSPs”), especially when it came to the matter of land acquisition.
The Supreme Court had, in the Bank Nationalisation Case (1970), struck down the law violating the fundamental right to property and Article 31(2) of the Constitution, when it came to the compensation involving properties acquired by the government. In this amendment, Article 31 was altered to change the term from compensation to amount.
That’s not all, a new article, Article 31C was also inserted after Article 31B to save certain laws from judicial review, as long as the law was passed to give effect to the Directive Principles of State Policy.
Even though only two provisions of the Constitution were altered, the changes it brought were still so very significant because as a result of this amendment the right to property , which was the fundamental right, was now curtailed to an extent.
Constitution (Twenty-sixth Amendment) Act, 1971
In ancient India, the privy purse was a system where the villagers and commoners were required to pay certain amounts to the rulers. When the Constitution was introduced and India was declared as a democracy, there was no need to keep these practices legal anymore. Thus, the 26th Constitutional Amendment was enacted to terminate this concept and abolish the rulers of the former states.
Constitution (Thirty-fourth Amendment) Act, 1974
The Chief Ministers’ Conference of July 1972 resulted in multiple suggestions to reduce the ceiling on holding of lands. These are the changes that came into force under this Act.
Reduction in ceiling level;
Application of ceiling level on family basis; and
To withdraw all the exemptions.
As a result, a change was brought to the Ninth Schedule of the Constitution and two new laws were added to the list, namely:
Before this amendment was passed, the state of Sikkim was just a small Buddhist kingdom, ruled under a monarch. The 36th Amendment Act was passed to acknowledge Sikkim as an associate state of India. Hence, the First Schedule was amended to add Sikkim, and even one seat was allocated to the state of Sikkim in the Council of States.
Need for the 36th Amendment
When the Chief Minister of Sikkim made a request to the Indian Parliament, to recognise Sikkim as an official state of India, voting was done, and after obtaining over 97% votes, the need to amend the Constitution arose.
Major change to the Constitution
To recognise Sikkim as a state, the First Schedule was amended and the name of Sikkim was included with the various states of India.
Constitution (Thirty-eighth Amendment) Act, 1975
The circumstances under which the 38th Amendment was enforced makes it really significant to the history of constitutional amendments . This Act was enforced when a nationwide emergency was declared in India due to internal conflicts.
Purpose and scope of the 38th Amendment of the Indian Constitution
The main purpose of introducing the 38th amendment of the Indian Constitution was to increase the powers of the State, and President during a national emergency. Moreover, it also removed the power of the judiciary to review the decisions made with respect to the national emergency in India.
The idea was to make the powers of the President absolute and non-debatable during any state of emergency in India. The more interesting aspect of this provision is that it was enacted during 1975-77, when the emergency was in place. Many states of India, including the state of Gujarat, Punjab, Rajasthan, Manipur, etc., did not ratify this amendment.
It is considered to be an important amendment as it led to an imbalance in the powers of the judiciary and the executive, by taking away or limiting the power of the judiciary to review the decisions or actions of the President.
Important changes to the Constitution
This particular amendment was made to increase the scope of powers for the President, Governor and Administrators during a national emergency. Articles 123, 213, and 239B were altered to give effect to the fact that the satisfaction of the three positions shall be conclusive.
Moreover, Articles 352, 356 and 360, which provide powers to the President with respect to emergency in the nation in the case of:
War threat, external aggression or internal disturbances;
Financial emergency; and
Failure of state government;
which stood challenged and in dispute, were also amended to make the emergency non – justiciable.
The fact that there was a challenge against future proclamations of emergency, an alteration was made to Article 356, to allow the President to enforce proclamation of emergency on several grounds, irrespective of the enforcement of prior proclamations.
Article 359 was also amended to make the reading of the deterrence of the fundamental rights the same as provided in Article 358.
As a result of this amendment, the Presidential orders were removed from the scope of judicial review, and protected the actions of the executive during the emergency.
Constitution (Forty-second Amendment) Act, 1976
With the aim to give more effect to socialism, secularism and integrity of the nation, this Act was enforced in 1976. The objective was to eradicate the difficulties arising in achieving these goals. Consequently, the words, “Socialist, Secular and Integrity” were included in the Preamble, which makes this Amendment one of the most important amendments in the history of the Indian Constitution.
Prominent importance was given to the power of Parliament, and in the furtherance of protection of Indian democracy, Article 31C was expanded to include all principles laid down in Part IV of the Constitution.
Need for the 42nd Amendment
The main need to amend this Constitution was felt after the constant issues faced and due to the increasing number of cases, challenging the validity of the government’s decision. As a result, to make things clear, the 42nd Amendment, the lengthiest amendment of the Indian Constitution was introduced.
Scope and Purpose of the 42nd Amendment
By amending more than 50 provisions of the Constitution, the objective was to increase the powers of the Parliament and the central government and to reduce the impact of the judiciary. As a result, the following type of changes were made:
The terms socialist, secularist and integrity were to be added to the Preamble of the Constitution;
The fundamental duties were introduced for citizens to increase their responsibility over the welfare of the nation;
It also curtailed the powers of judicial review of the courts;
By increasing the powers of the government, the federalistic nature of India was also taken into the scope of 42nd Amendment; and
Alteration in the balance of power between states and Centre.
Major provisions of the amendment
Due to the major amendments and its comprehensive and detailed nature, the 42nd Amendment of the Constitution is also named as the mini-constitution. It brought changes in more than 50 Articles of the Constitution to increase the central power of the Government, reduce state autonomy, and to protect the laws passed by the government.
Article 31D
Article 31D was introduced in this amendment, where protection was provided to certain laws from being held as unconstitutional, if it fell for any of the following purposes:
Prevention of anti-national activities; and
Prevention of formation of the anti-national association.
Article 32A
Article 32A was also inserted to the Constitution to limit the scope of the Supreme Court to entertain factors related to constitutional validity of the laws passed by the state government while dealing with Article 32 writ petitions.
Article 39
Then, Article 39 was also altered. This Article is specifically curated to put some duties upon the state, to try and achieve the highest possible socio-economic order. Hence, a DPSP was introduced, for the State to make efforts to protect the children from being exploited or abandoned – whether materially or physically.
Insertion of Article 39
To make this provision stronger, new Article 39A was inserted. It provides for the access to justice for the weaker sections of the society by providing free legal aid. This amendment was the reason why today access to justice is comparatively easier for the poor people, with the help of free legal aid.
Insertion of Article 43A
Another Article 43A was also added. This article is to allow the workers of a factory establishment to feel more involved in management. It provided that the States were supposed to take such steps as may be required to make that change. Another attempt was also made to protect the environment, by introducing Article 48A, which provided that the states must act in order to protect and improve the environment.
Introduction of Part IVA to the Constitution
More importantly, it is in this Amendment that the fundamental duties of the citizens of India were introduced as Part IVA of the Indian Constitution. Then, changes were made to Article 74 to constitute a Council of Ministers to aid and advise the Prime Minister, if these pieces of advice were approved by the President. Hence, this further increased the scope of presidential powers in various decisions.
Article 83
Even the duration of the Houses of Parliament was increased from five to six years by substitution of the words in Article 83.
Changes to Article 102
Article 102 was amended to introduce that any person must be disqualified from the office of Parliament if they were found to be holding office of profit under the Government of India.
Article 131A
Article 131A was also introduced to provide exclusive jurisdiction to the Supreme Court to decide the constitutional validity of laws passed by the centre.
Insertion of Article 139A
Further, widening the scope of the Supreme Court, Article 139A was also introduced, which allowed the Supreme Court to take cognisance of certain cases, on their own motion and dispose of them, if the matter is pending before one or more High Courts.
Article 144A
Special provisions were also introduced while determining the constitutional validity of laws, through Article 144A. According to this, the minimum bench required to decide on such matters was 7 in number, and a central law could not be invalid without the two-third majority of the judges sitting in the bench. As a result, even the rules of court, etc. were amended to facilitate the proceedings under Article 131A and 139A. Article 226 of the Constitution was also altered significantly to curtail the power of judicial review and to limit the jurisdictions.
Article 226A
Moreover, Article 226A was introduced to leave out the central laws from the scope of test for constitutional validity.
Criticism of the 42nd Amendment
This amendment gave a clear path to the introduction of the basic structure doctrine, by literally hampering the basic structure of the Constitution of India. Prior to this amendment, there was a balance of power between the centre and the states, which also gave way to the federalistic principles that India follows. However, the changes made through this Amendment Act, created a huge imbalance, as a result of which, it faced a lot of criticism by:
Opposition parties;
Petitions before the courts; and
Protests of the public at large.
Constitution (Forty-third Amendment) Act, 1977
The limitations added to the scope of judicial review powers of the Supreme Court and the High Court had not gone unnoticed. Article 32A, 131A, 144A, 226A and 228A curbed the powers of the courts. Moreover, certain articles were also bringing hardships to access to justice to people living in certain parts of India.
Need for the 43rd Amendment
Due to the previous constitutional amendments, recently, there had been a lot of multiplicity of cases in the courts. This was putting an unnecessary burden on the administration of justice. There was a need to remove, omit and change certain provisions from the prior amendments, and to bring some social order. Thus, the 43rd Amendment Act came into the picture.
Provisions under the 43rd Amendment
Apart from this step, the amendment also allowed courts to decide cases in a manner as if they were filed before the articles were ever introduced. This helped in disposing of cases faster and more efficiently.
As a last and final step, Article 31D which provided powers to the Parliament to create laws against the anti-national activities, was also abolished, especially now that it was so evident that the powers could be easily abused.
Significance of the 43rd Amendment to the Constitution
The most significant impact of the 43rd Amendment is that it invalidated 6 of the provisions introduced in the 42nd Amendment Act, which was a promise made by the party in power to improve the Constitution to change it as it was before the Emergency. Let us take a look at the repealed provisions.
Article 31D
Eradication of Article 31D proves that the purpose of this amendment was to increase the liberties. Moreover, it also restored the judicial review powers of the judiciary and created a proper balance between the powers.
Article 32A
Article 32A provision was introduced to remove the state laws from the ambit of judicial review under Article 32. Hence, after the clarity was given on the power of courts to review the laws, the article was repealed to create the balance of power.
Article 131A
This article provided the Supreme Court the exclusive jurisdiction to decide on the constitutional validity of central law. As a result of which, the power of the High Court to decide on the validity of the laws passed by the centre was taken away. Hence, this arbitrary provision was removed to restore the power of high courts.
Article 144A
The Article provided for a minimum number of judges to be present as 7 to decide on the constitutional validity of the central laws. However, many cases were being held up as a result of this. Thus, it was proposed to omit Article 144A.
Article 226A and 228A
Article 226A put a restriction on the High Courts to decide on the constitutional validity of the central laws. As a result of which, it was omitted. Moreover, Article 228A which provided special provisions for the disposal of validity of the state laws, also put a restriction on the power of judicial review of the Supreme Court. All these changes were gradually reversed through the
Constitution (Forty-fourth Amendment) Act, 1977
After the 42nd Amendment, the 44th Constitutional Amendment is also one that paved the way for significant changes to the legislative framework of India. It was evident from the events in the country at the time, along with the previous amendments of the Constitution, that even the fundamental rights granted to the citizens were susceptible to be taken over by a majority.
To set an example of the previous errors, and to ensure that no such issue arose in the future against, it was proposed to change certain articles and provisions of the Constitution.
Need for the 44th Amendment
All changes proposed in this Act were pertaining to change the provisions that :
had effect of impairing the secular or democratic nature of the country;
took away the fundamental rights;
had impact on the free and fair elections; and
compromise of the judicial powers.
This resulted in the amendment of Article 368.
Major provisions of the amendment
Then, Article 31 was also removed to eradicate the long issues related to the fundamental right to property, and necessary amendments were made to Article 19. When the focus of the government shifted towards achieving the DPSPPs, the fundamental right to property was coming across as a hurdle in achieving the socialist goals. Resultantly, the right to property was removed from the fundamental rights and was labelled as a legal right in the Constitution instead.
Moreover, to safeguard the protection of the fundamental rights, especially the basic right to life and liberty, it was proposed to remove internal conflicts from being a valid ground for proclamation of emergency, unless it amounted to armed rebellion. This step was much needed to put a stop on the extraordinary powers of the Parliament to alter the Constitution of India.
Then, this Amendment also changed the provisions to make sure that the right to life and personal liberty. Thus, the changes were made to curtail certain powers which allowed the government or president to suspend the fundamental rights.
There was also a need to reduce the number of backlogged cases in the courts of India. To make this possible, Articles 132, 133 and 134 were amended, and new Article 134A was inserted. The new article allows the High Court of a state to consider granting a certificate for Supreme Court appeal, at any point after passing a judgement, even if it was immediate.
This amendment is also important because here, it was considered to give free speech and to be able to report freely for the media houses in India. This would help in spreading awareness of the ongoing situations to the general public. Hence, it was also stated that there was no need for censorship on media houses by the government.
Constitution (Fifty-first Amendment) Act, 1984
On the day of 31st March 1980, the state of Meghalaya had approached the government of India through a resolution, to ask for reservation of seats for the STs in both the houses of Parliament (Lok Sabha and Rajya Sabha).
Apart from Meghalaya, Nagaland, Arunachal Pradesh, and Mizoram governments were also rooting for these amendments to take effect in those areas as well. Thus, this amendment Act was enforced to allow this reservation of the STs in Meghalaya, Nagaland, Mizoram, and AP.
Major Provisions of 51st Amendment
Article 330
This article was changed to allow the reservation of seats for the STs of Nagaland, Mizoram, AP and Meghalaya in the Lok Sabha.
Article 332
This provision was amended to allow the reservation of STs in the legislative assemblies of Nagaland and Meghalaya.
Constitution (Fifty-second Amendment) Act, 1985
By the time the first 50 amendments were passed, people started recognising the importance of the power balance and the separation of powers. The country had faced many disruptions due to certain political defects. A political defection usually refers to the situation when a person of a particular political party revolts or changes their association with that party, and joins another.
There was no way this issue could be ignored anymore. Thus, the Anti-defection Bill was passed. The objective of this Bill was to remove and invalidate all forms and types of political defections. The idea was to ensure that democracy is protected.
Provisions of the Anti-Defection Bill
Consequently, changes were made to the provisions of Articles 101, 102 and 190. Also, the tenth schedule to the Constitution was introduced, which provides the provisions for the disqualification on the grounds of political defection. Let us take a look at the changes made to the provisions in depth.
Article 101
The provision was amended to lay down the grounds which will amount to defection of the members of either of the following:
House of Parliament; or
Assembly of State; or
Council of Members.
This Bill and the amendments brought a major change in the nation’s political landscape. A series of debates led to this enactment, and one of the major changes to the Constitution of India.
Article 102
Clause (2) was inserted to the list of disqualification from membership as a Member of Parliament, if he or she was also disqualified as per the provision of the Tenth Schedule.
Article 190
Clause (2) of Article 191 was inserted within the scope of disqualification from the House of Parliament.
Article 191
This Article was amended to add that whoever was disqualified under Schedule 10, shall also be disqualified under this provision for the position of membership in any state Legislative Council or Legislative Assembly.
Landmark Precedent
Kihoto Hollohan vs. Zachillhu And Ors (1992)
This is one of the landmark judgements passed by the Supreme Court with reference to the anti-defection Bill in India. Let’s see the facts, issues and judgement.
Facts of the case
In this case, the Supreme Court had clubbed a lot of petitions received on the constitutional validity of the anti-defection law by many political parties. The main contention was that the 10th Schedule was particularly violating democracy and the core essence of the Constitution of India.
Issues raised
The following issues were discussed in this judgement:
Whether the 10th Schedule to the Constitution violated the basic structure and the democratic nature of our Country? and
Whether para 7 of the Tenth Schedule was leading to a limitation to the scope of judicial review and was it required to be struck down?
Judgement
With a striking majority of 3:2, the bench in this landmark judgement decided that the anti-defection law was valid and hence, it confirmed the validity of the 52nd Constitutional Amendment. The judgement serves as a stark reminder that all the provisions of the law must be read as a whole and not in parts to achieve its true essence.
Constitution (Sixty-first Amendment) Act, 1988
In the olden times, the minimum age for voting in India was 21 years. Yet, in many nations, the age of voting was seen to be 18 years. Moreover, in India also, many state governments were following the same pattern of 18 years of age.
It was also held that the present day youth is smart and literate enough to gain that maturity and vote accordingly.
Major changes to constitutional provision
Article 326 was amended in this Act to change the minimum age for voting to be 18 years. Before the Amendment Act was passed, the age of suffrage as per Article 326 was “not less than 21 years”. However, it was changed to the age of 18 years.
Significance of the amendment
This shows that with time and development, the youth of the nation had become more mature as a result of which it was deemed okay for them to make such a decision of voting at the age of 18.
Today, if we are able to go out and vote as soon as we reach majority, it is only because of the 61st amendment of the Constitution of India.
Constitution (Sixty-fifth Amendment) Act, 1990
This amendment is considered as an important amendment as it provided for a high level five member Commission to be set up under Article 338 to investigate all matters related to rights granted to the SCSTs. This is the birth of the National Commission for Scheduled Castes and Scheduled Tribes, which comprised five members, plus Chairperson, Vice-Chairperson and other members. The commission had powers to inquire, advise, present to the President, and to make and keep reports and records of the issues faced by the SC and STs in getting access to the safeguards. Prior to this, a single officer was allotted under this article, whose role was removed when this important constitutional amendment came into force.
Constitution (Sixty-ninth Amendment) Act, 1991
The objective of this Act was to reorganise the administrative setup of the UT of Delhi. From the report of a Committee appointed to look into this matter, it was decided that Delhi was okay as a Union Territory, and was provided the Legislative Assembly and a Council of Ministers. Moreover, one of the recommendations of the report was to provide a special status to National Capital Delhi amongst other union territories. For this reason, the Parliament introduced Article 239AA and 239AB.
Need for the amendment
Before the 90s, Delhi was a separate Municipal Corporation governed through the Delhi Administration Act. However, once it was recognised as the national territory, there was a need to re-organise the way the capital of our nation was administered, as a result of which, the 69th Constitutional Amendment was introduced.
Changes to the provisions
Article 239AA
This provision was introduced to announce the date of amendment as well as the date of the establishment of Delhi as a National Capital Territory.
Article 239AB
This article provided various provisions to maintain the administration, in case of the failure of the administration. This allowed the President the power to order suspension of operations.
Constitution (Seventy-third Amendment) Act, 1992
In India, the Panchayati Raj has been functional ever since 1959. However, until the 73rd Amendment, it was not constitutionalized. The objective of passing this act was to give the proper recognition to this system, so that they could function with respect and dignity.
Due to the lack of recognition, there were no proper election systems, and heavy suppression in the Panchayati Raj, this amendment introduced Part IX of the Constitution which provides all the provisions to manage the panchayats in India.
Need for the 73rd Amendment
The major need was to recognise the panchayat raj systems prevalent in India. The Act was divided in two different parts, to recognise the roles and responsibilities of the Panchayat system in India.
Major change to the provisions
Article 40 of the Constitution was changed to make it sure that the States were taking efforts to set up village panchayats, and give them powers to function as a unit of self government.
Constitution (Seventy-fourth Amendment) Act, 1992
When the local bodies of many states became weak and ineffective for various reasons. Hence, the Seventy-fourth Amendment talked about bringing the relation between government and urban local bodies and to manage the functions and tax powers, arrange the revenue sharing, etc.
This led to the creation and composition of three types of municipalities:
Nagar Panchayats;
Municipal Councils; and
Municipal Corporations.
Need for the 74th Constitutional Amendment
Before this amendment was passed, there was a centralisation of power. With the passage of time, a need was felt to decentralise these powers to avoid the concentration of power and rule. As a result of which, in 1992, the 74th Amendment Act was passed to allow the local authorities like municipalities the power to regulate a limited area.
Major provisions of the 74th Amendment
To provide regulatory powers to the municipalities in India, Part IX-A of the Constitution was introduced, which consists of the following provisions:
For composition of municipalities;
Wards Committee;
Reservation of seats in municipalities;
Powers;
Responsibilities; and
Audit requirements.
Moreover, the 12th Schedule to the Constitution of India was also inserted due to this Amendment. It includes the various functions of the municipalities, like:
Urban and town planning;
Roads and bridges;
Fire services;
Urban forestry;
Waste management;
Safeguarding of interests of weaker sections;
Poverty alleviation; and more.
Due to this amendment, all the state governments were now required to adopt the new system of municipalities. The objective behind this step was to decentralise the accumulation of powers and create a stronger urban government for localities.
Constitution (Eighty-sixth Amendment) Act, 2002
By the late 90s and early 2000s, the importance of primary education for the welfare of children was rising. To create equality, and provide equal opportunities, in 2002, the Constitution was amended to bring about a really important change for the nation. This important Constitutional Amendment Act inserted Article 21A to the Constitution, under which it was mandatory for the State to provide free and compulsory education to all children between the ages of 6 to 14.
Moreover, the parliament even changed the provisions of Article 45 to allow the State powers to make provisions for the early childhood health care and education for all the children in India until they complete 6 years.
Also, to add legal responsibility to the parents, Article 51A(k) was introduced to the Constitution. It is a fundamental duty on the parents and guardians to provide education to their children and ward, respectively, especially between the ages 6 to 14.
Objective of the 86th Constitutional Amendment
By making education free and compulsory, this Amendment Act is highly focused on improving overall life quality of the upcoming generations, by ensuring that they receive the primary education, which can help them live a healthy and happy life with proper exposure to the world.
Illiteracy was one of the major issues acting as a restraint to the development of India. Also, to achieve the goals provided under the DPSPs, the government was to work on social welfare. This step, of making education free and compulsory for all children below the age of 14 years marked a significant step in the development of our country, along with the social welfare at large.
Importance of the 86th Amendment
This can be said to be one of the most important constitutional amendments, as it is a huge step towards changing the ways our education system was functioning for several years. This change gave birth to a million new opportunities for those who never focused on education and it also increased awareness for the need for education, especially among children between 6 and 14 years of age. for
Constitution (Eighty-eighth Amendment) Act, 2003
This Act proposed the insertion of Article 268A of the Constitution to introduce the concept of a service tax. This was to be levied by the Union Government and to be collected and appropriated by both, the Union Government. Consequently, Article 270 and the Seventh Schedule to the Constitution were also amended.
Objective of the amendment
Prior to this amendment, there was no mention of any levy of service taxes in either the state or union lists of the Constitution. However, a need was felt to introduce the concept, and levy of service tax by the Central Government, which would then be appropriated by the Centre to the states.
Significance of the service tax amendment
It introduced a new article 268A to the Constitution of India and allowed the government to charge taxes on the services. However, another significant aspect is that a few years after the inception of service tax, the entire concept was replaced by the Goods and Services Tax (GST), along with the abolishment of various indirect tax regimes, such as the excise duty.
Constitution (Ninety-first Amendment) Act, 2003
Objective of the Act
The main objective of this Act was to strengthen the anti defection laws and to put a limit on the number of ministers in the Council of Ministers, at both the central and state level. It was seen that the exceptions granted in the 3rd para of the 10th Schedule were being misused and abused. This resulted in the division of political parties.
Hence, the 91st Amendment Act was passed with an objective to:
Put a limit on the number of Council of Members;
Remove defectors from public office position; and
Strengthen the anti – defection law.
Important provisions
Article 361B was introduced, which provides that any disqualified member under the Tenth Schedule would also be considered as disqualified under this section for the appointment of a remunerative political post. Tenth Schedule was further changed to omit paragraph 3.
Article 75 was also amended to include a new clause, which put a limit on the total ministers of the Council. It was stated that the number of ministers, including the PM, must not exceed 15% of the total members of the Lok Sabha.
Moreover, Article 164 was also amended to facilitate this limit and the disqualification. Lastly, para 3 of the Tenth Schedule, which protected from disqualification in case of political defection, was also removed to make the anti-defection law stronger.
Constitution (Ninety-third Amendment) Act, 2005
By the early 2000s it was high time to bring changes that would safeguard the socially and educationally backward classes (SEBC) in India, along with the SCs and STs. This Amendment Act was introduced to create provisions like reservation and protection of the SEBC.
This amendment also included a reservation for the SEBCs for admission in private and public educational institutions across India, except for institutions set up by the minorities.
Purpose of the 93rd Amendment
With the aim of providing an equal opportunity to the SEBCs in India, the amendment was enacted. It provided for the following type of changes:
To provide reservation in educational institutions administered by the centre;
To increase the quota of reservation for SCs and STs to 27%;
A special reservation quota of 27% was also provided for the OBCs; and
To grant the government certain powers to issue orders and pass laws for implementation of the reservation.
Significance of the Amendment
Though the changes were made with positive viewpoints to help the SCs, STs and OBC to develop, and to give them an equal opportunity, there was also criticism from many areas. Many critics pointed out that this could lead to the institutions lowering their standards.
Moreover, many also felt that this reservation would further stigmatise the SC and ST classes from the other non reserved classes.
Another point of importance for the 93rd Amendment Act was also that the reservation in educational institutions was not limited to the government administered but also to the private institutions.
Constitution (Ninety-seventh Amendment) Act, 2011
The co-operative societies in India have been functioning since the pre-independence era. Now that India was free and the socio-economic order was a priority, in 2011, Article 43B was introduced to the COI through the 97th Constitutional Amendment Act. This Article imposes a duty on the State to take measures to promote the co-operative societies in India.
Key features of the 97th Constitutional amendment
The main aim was to give an official recognition to the co-operative societies in India. The following are the key features of this amendment Act:
Article 19 made it a basic right to organise and form the co-operative societies in India;
A new DPSP was introduced for the government to promote co-operative societies; and
Part IX-B of the Constitution was introduced to allow and administer provisions for the co-operative societies in India.
Constitution (Ninety-ninth Amendment) Act, 2014
Since a long time, in India the collegium system has been followed for the appointment and transfer of judges of the High Courts and Supreme Court.
However, the 99th Constitutional Amendment was all set to let go of this system and instead to compose a National Judicial Appointments Commission (NJAC), by way of insertion of Article 124A. Many of the provisions of the Constitution of India were proposed to be changed in this Act to give the power to transfer and appoint judges to the Appointment Commission.
Need for the amendment
The Supreme Court in the case of Supreme Court Advocates-On-Record vs. Union of India (1998) had created a memorandum of procedure to appoint the judges. This memorandum was being implemented through the 99th Constitutional Amendment.
Key features of the 99th Constitutional Amendment
Formation of a new commission the NJAC was proposed to select and transfer the judges across the nation;
The composition of the NJAC was to have 6 members, including the Union Law Minister, Chief Justice of India (CJI), and two additional senior SC Judges.
Major amendments
Article 124A was introduced to provide for the composition of the NJAC. The NJAC was supposed to consist of:
Two senior most SC judges;
CJI as chairperson; and
Two individuals chosen by a special committee.
Article 124B provided the duties of the NJAC and included following functions:
Recommendation of the contenders for positions like the CJI, SC judges, Chief Justice of High Courts, and the other high court judges;
To take care of the transfer processes; and
To confirm the competence and integrity of the chosen candidates for appointment as a judge.
Lastly, Article 124C was also inserted to allow the Parliament a power to enforce laws to regulate the NJAC.
Many other provisions were amended to facilitate this new commission. For example, Article 127 was revised to change the appointment of ad hoc judges from the power of the CJI to the NJAC. It was revised to accommodate that the CJI could appoint ad hoc judges from the recommendations of the NJAC.
However, in October 2015, after hearing several petitions, also known as the 4th judges case, the Supreme Court had decided to uphold the collegium system, and the NJAC was held to be void.
In this case, the petition was filed to review the constitutionality of the NJAC Act and 99th Constitutional Amendment. The observation of the SC bench deciding this matter was as follows:
There was an inadequate depiction of the judges in the judicial branch of NJAC to decide appropriately;
The formation of the NJAC was against the concept of independence of the judiciary;
It was also held to be a breach of separation of powers by allowing the other basic pillars to choose and appoint and transfer the judges of the Supreme Court and various High Courts in India; and
Lastly, this step was absolutely against the integrity of the court, by taking up the powers of the judiciary.
The judges then also passed the judgement that changing the process of appointment of the judiciary and involving the executive was disrupting the balance of power, which was a basic structure of the Constitution of India. As a result, this commission along with the Act was held to be invalid and unconstitutional.
Constitution (One Hundredth Amendment) Act, 2015
India and Bangladesh had signed a Land Boundary Agreement in 1974 to separate their territories. In May 2015, certain revisions were also made to the Agreement. This transfer of the territories needed to be recorded, and the Constitution was to be changed to meet up the new territories. Thus, the 100th Amendment Act was passed to note this and make changes to the Constitution accordingly.
Important provisions of the 100th Constitutional Amendment
The 1st Schedule to the Constitution of India was amended under this Act to allow the reorganisation of land after execution of the agreement. Simply put, some areas from Bangladesh were transferred to India, and some of the territories were transferred from India to Bangladesh. The residents were given an option to relocate or stay.
Due to this, India had received around 51 enclaves from Bangladesh and provided them with over a 100 Indian enclaves.
Constitution (One Hundred and First Amendment) Act, 2016
Before GST in India, there was no indirect tax regime. There were so many different taxes like excise, service tax, sales tax, etc. Due to this lack of organisation, tax evasion was also increasing resulting in this significant 101st Constitutional Amendment.
Need for GST in India
Before this amendment, several indirect taxes imposed on goods and services led to high costs and also inefficiency in the tax system. Several issues like:
Distrust in the government;
Hidden or surcharge taxes;
Double taxation;
And more came forward, which increased the need for a single indirect tax system in India. As a result of which, the 101st amendment was introduced.
Important provisions
In 2016, the Constitution of India was amended to add special provisions for the recognition of the Goods and Services Tax. This change was inserted by adding Article 246A to the Constitution of India. It provides the Parliament exhaustive powers to make as many laws and provisions as required to impose the GST all over the country.
Apart from this Article, many other provisions were also amended to give effect to this new regime.
Significance of the Amendment
The most important reason to implement the GST was to simplify the tax structure in India. Moreover, it was also assumed that, apart from simplifying the process, the GST would increase the tax revenue and also have a positive impact on the Gross Domestic Product (GDP) of the country.
Additionally, by removing the hidden charges on exports, this new regime gave a boost to business owners to focus more on exports, which is in a way, a boon to the economy of India.
One can definitely say that this is one of the most important constitutional amendments when it comes to the tax system of India. This Amendment changed the course for all business owners across the nation.
Constitution (One Hundred and Second Amendment) Act, 2018
By the 100th amendment, there were many provisions in the Constitution for safeguarding the rights of the backward classes. However, there was a need for a commission for the Socially and Economically Backward Classes (SEBC). Hence, in August 2018, the National Commission for Backward Classes (NCBC) was set up under this Amendment Act.
Purpose of the 102nd Amendment
The main purpose was to create a commission to protect the interests of the SEBC of the country. This commission was a constitutional body and had the powers to look into various complaints made by the SEBC and to get them resolved, especially in cases of complaints for the implementation of special provisions created for their benefits.
The NCBC was also granted the powers to make suggestions and advice to the centre to make developments for the SEBC. Hence, the whole purpose was to protect the interests of the SEBC.
Important provisions of the 102nd Amendment Act
To turn this into reality, Article 338B was also inserted into the Constitution of India. According to this article, the NCBC was to have similar powers as the National Commission for SCs and STs. This means, their duty was to keep an eye on the fact that the SEBC were getting the best out of the safeguards provided to them, and that they were not abused.
Alongside, Article 342A was also introduced through the 102nd Constitutional Amendment. This Article provides the President the power to give a public notification on who falls in the SEBC category.
Constitution (One Hundred and Third Amendment) Act, 2019
To help the economically weaker sections of the society to grow, the 103rd Constitutional Amendment Act amended Article 15 by providing safeguards against discrimination on the grounds of economic stability or instability, especially of the weaker sections.
Moreover, it was also held that the government could take any measures to create provisions for the betterment of the economically backward classes.
The current threshold to fall within the Economically Weaker Section (EWS) is the annual family income of less than 1 lakh rupees.
As a result, amendment was also made to Article 16 of the Constitution to allow the state to make special provisions for the reservation of the EWS in the public sector.
Constitutional Validity of the 103rd Amendment
Even though this amendment was challenged before the Supreme Court of India, in November 2022, the validity of this amendment was upheld, as according to the Court, the economic criteria are legitimate reasons for taking actions to protect an economically weak section. Moreover, it was also held in the 3:2 judgement that the removal of the EWS from reservation criteria would be against the basic structure doctrine of India. This case is famously also known as the In the case of Janhit Abhiyan vs. Union of India (2019)(also referred to as EWS reservation case). The need for justice and equality were explained and emphasised in this judgement.
Constitution (One Hundred and Fourth Amendment) Act, 2019
The 104th Constitutional Amendment was enacted with the purpose to increase the reservation facilitation for lower castes in India by a period of another 10 years, especially for reservation in the Lok Sabha as well as the various state legislative assemblies. Moreover, it also removed the reservation for Anglo-Indians.
Need for the amendment
Despite the fact that the SCs and STs had seen a lot of development due to the reservation and other government initiatives, there was still a stigma in the eyes of the people. Moreover, this was the first time that the lower-castes had gotten a chance to develop and make progress in their life. So , to continue this inclusivity and promote this development of the lower-castes, it was deemed necessary to make the reservation available for another 10 years. As a result, the 104th amendment was passed.
Constitution (One Hundred and Fifth Amendment) Act, 2021
Article 338B of the Constitution was amended to add a provision to clause 9, that the article would not be applicable to any of the purposes of clause (3) of Article 342A. Then, Article 342A was amended in the 105th Constitutional Amendment to give states the power to identify the socially and educationally backward classes.
This amendment came forward after the decision of the Supreme Court limited the power of the state to identify the Socially and Educationally Backward Classes (SEBC) in India.
It took place after the landmark judgement was passed in the Maratha reservation case, limiting the powers of the state to declare socially and educationally backward classes in India.
Need for the 105th Constitutional amendment
When the 102 amendment provided for the new constitutional body of the NCBC, it was deemed by the Supreme Court, that the constitutional power of the states and centre to consider and choose the criterion for recognising the SEBCs was taken away from the State. As an answer to that, this new amendment was passed to confirm the powers of the state as well as the NCBC.
This all started with the Maratha reservation case, wherein the state law allowed Marathas to be under reservation as an SEBC, which was challenged on the grounds that the NCBC was responsible, not the state. The court approved this point of view and, as a result, stated that the Centre could determine and the states couldn’t. The central government sought a review of the judgement, post which this Act was required to be passed for better clarity of the new framework.
Importance of the 105th Amendment
The following factors make the 105th Constitutional Amendment one of the most significant amendments passed till date:
It restored the powers of the states to choose the SEBC;
Allowed many different OBC communities to retain their special status and enjoy the benefits of reservation and other initiatives for progress;
The Act aimed to eradicate the stigma associated with lowers castes and classes, and promotes a social welfare and empowerment; and
Protects the interests of the marginalised sectors of our society.
Constitution (One Hundred and Sixth Amendment) Act, 2023
The 106th Amendment is the latest and also one of the most important amendments of the Constitution of India in recent years. With the objective to protect and safeguard the women in our country, this amendment bill was also known as the Women’s Reservation Bill, 2023 or Nari Shakti Vandan Adhiniyam.
Major provisions of 106th Amendment
It was just last year that the women were provided reservation rights in various sectors through this amendment. Many articles were changed for the purpose.
Article 239AA, which provides special provisions with respect to Delhi, was amended to allow the reservation of women in the Legislative Assembly of the National Capital.
A new Article 330A was also inserted to provide seats for women in the House of People.
Article 332A of the Constitution was also added to provide for the reservation of seats for women in the State Legislative Assemblies.
Moreover, it was also mentioned expressly in the amendment that none of these reservations would have an impact on the existing seats in the Houses of Parliament.
Significance of the latest constitutional amendment
The most important aspect for this was the empowerment of women in politics. According to the latest constitutional amendment, for a period of 15 years, starting from the date of enforcement of the Act, women of India were entitled to 1/3rd seats in the :
Lok Sabha;
State Legislative Assemblies; and
Legislative Assembly for NCT Delhi
This shows the progress our country has made in recent years. Where most women were marginalised and even deprived of a social or personal life, today they get the chance to be a part of the core decisions of the Parliament, of the nation.
These are the most important constitutional amendments in India, passed until today. From this above chronology, it becomes evident that throughout the years, there have been many amendments to the Constitution, for several purposes, while some instances also show us how easy it is to abuse the powers granted by the Constitution. Thus, each amendment that takes place also needs to be open to judicial review to keep up the balance of power in the nation.
Power of Parliament to amend the Constitution
When it comes to the current scope of the power of the parliament to amend the Constitution, we can rely on the Basic Structure Doctrine, introduced in the landmark judgement of Kesavananda Bharati Sripadagalvaru vs. State of Kerala and anr. (1973). According to the judgement and the doctrine introduced therein, the parliamentary power to amend the Indian Constitution is wide. However, it is an absolute power and the parliament can never amend the Indian Constitution if the amendment changes the basic structure of the Indian Constitution.
Basic Structure Doctrine test
It was held in the landmark judgement of Kesavananda Bharati case (1973) that the Parliament held the powers of amend the Constitution, along with the fundamental rights, as long as the amendment did not affect any basic principle or the fundamental structure of the Constitution.
The basic idea behind introducing this basic structure doctrine was to keep control on the powers of the Parliament and to ensure that they did not alter or destroy the basic structure, that is, the true essence of our Indian Constitution. So, what exactly falls within the ambit of a basic structure doctrine? Which provisions of the Indian Constitution are not amendable at all? The answer to this has been obtained over the years through various judgements and precedents set by the Indian courts.
The landmark judgement also provided us with the test to consider which features fall within the ambit of the basic structure doctrine:
Supremacy of the Constitution
No matter the power, the Parliament must recognise that the final authority lies with the Constitution. It is the most important and the highest law of India. Thus, any amendment that undermines the supremacy that our Constitution has, will be considered as void.
Republic and democratic nature of India
India has been the world’s largest democracy. The constitutional provisions are the key aspects that protect this nature of our Indian republic. Thus, it is vital for the Constitution and for the maintenance of social order in India. Thus, it becomes an integral part of our Indian Constitution. Which means, in India, if at any point in time, a law is passed that threatens to mess up its democratic and republic nature, the law, to that extent, shall be held as invalid and unconstitutional. The Constitution (Thirty-ninth Amendment) Act, 1975 was an attempt by the Parliament to change these by amending the constitutional provisions in a way that limited the powers of the courts in India to decide on election and other related matters.
This issue was raised in the landmark case of Indira Gandhi vs. Raj Narain (1975). In this case, an opponent of Indira Gandhi in the elections decided to challenge her election on the grounds of malpractice. When this case was pending before the Allahabad High Court, the Parliament passed the 39th Amendment to the Indian Constitution. This can be considered a really smart move, as post this amendment, there was a limitation on the jurisdiction of courts to decide on the validity of elections of :
President;
Vice-President; and
Speaker.
This action makes it one of the most important amendments to the Constitution of India, as the whole dispute was around the balance of powers, judicial review, and other such issues, which at the larger stand point were affecting the democracy of our country. In this case, the Supreme Court held the 39th Amendment to be unconstitutional and void as it was against our democratic principles.
Secular character of the Constitution
The most attractive feature of our nation is the secularism it follows, which also forms a part of the basic features of our Constitution. Hence, any changes that affect or threaten secularism in our nation are also considered a change to the basic structure and, hence, are considered invalid.
S.R. Bommai vs. Union of India (1994) is one of the most important judgements while considering the secularism of our nation and its status as a basic feature of the doctrine. The former Chief Minister (CM) of Karnataka, S.R. Bommai was dismissed and the President’s rule on the state was imposed.
In fact, this was not the only instance of dismissal of the state government. In many states of India, the Centre had dismissed the state governments on various allegations, such as them trying to preach non-secular practices, and by stating that there was an instability in the state. These dismissals were then challenged in the Supreme Court. One of the major issues involved in the case was pertaining to the fact that whether or not the government of a state could be dismissed on the grounds that they were promoting non-secular activities and whether or not secularism fell within the definition and scope of the basic structure doctrine.
It was then that the Supreme Court confirmed secularism as a part of the basic or feature of the Constitution of India. The hon’ble bench held that any action of the government of India, whether central or state, will be invalid and unconstitutional if it affected the principles of secularism in our country in any manner. In furtherance of this, it was also held that a state government could be dismissed if it was not performing its functions in line with the principles of secularism.
Separation and balance of powers
The nation of India stands on three pillars, the legislative, executive and judiciary. Each of these bodies has their roles to perform. This separation helps in maintaining democracy in India. If the powers are combined, instead of keeping them separate, a group of individuals will get the power over the functioning of the entire nation.
In fact, the way that the constitutional amendment has panned out until now is also a great reminder for why the separation of powers is a must. Not just that, even an imbalance in these powers can disrupt the democratic and federalist nature. Hence, the separation of powers and its balance is also an integral aspect of the Constitution.
The federal characteristic of India means that the Constitution protects and respects the balance and the division of powers between the central and state governments. Both are set to work independently of each other.
Judicial review
After the Kesavanada Bharati case, the power of the court or judiciary to review the laws was again brought into dispute through a constitutional amendment and was further discussed in the landmark judgement of Minerva Mills vs. Union of India (1980). In this case, the Supreme Court had once again held that the power of judicial review was one of the basic features of the Constitution as it was a part of the federal nature and protected the separate powers of the three pillars. Hence, it was held that judicial review powers are also within the scope of the basic structure doctrine.
Landmark precedents
Sri Sankari Prasad Singh Deo vs. Union Of India And State Of Bihar (1951)
Facts of the case
Post independence the authorities started focusing on the Agrarian Land Reform Acts. While the acts were held to be valid and legal in the states of Allahabad and Bhopal, the Patna High Court passed a judgement to declare the Bihar Land Reforms Act 1950 unconstitutional.
This sparked controversy and with an aim to eradicate the decision of the Patna High Court, First Amendment Act was passed.
The present case was filed to challenge the validity of this amendment. It was challenged on the ground of violation of the fundamental right to property and the provision of Article 13(2).
Issues Raised
As a result, three important issues were dealt with in the case:
whether the Parliament has the authority to amend the Constitution?
whether or not the fundamental rights be amended or changed? and
the determination of the scope of applicability of Article 368.
It was the first time in the nation that these issues were being discussed. Moreover, the strike differences in the Articles 13 and 368 were leading to conflicts. While the Parliament was given power, Article 13 was also restricting it.
Judgement
In this judgement, the court did take a closer look at the conflict between Articles 13 and 368. To deal with this conflict, in this decision, the court relied on the doctrine of harmonious construction, which means that whenever there is conflict between two provisions, the court must try and create a harmony between the provisions, rather than cancelling one out as a void provision.
It was held that the first amendment was valid and the scope of Article 13 is limited to ordinary laws and not constitutional laws. They stated that the term law referred to in Article 13, was not extended to the constitutional laws and its amendment, as a result of which, a law made under Article 368 to amend the Constitution could not be challenged under Article 13.
Sajjan Singh vs. State Of Rajasthan (1965)
As we’ve seen the earlier constitutional amendments happened mostly for socio-economic development, and land reforms were seen as a major part of the same. After the 17th Constitutional Amendment Act was passed, and more laws were added to the Ninth Schedule of the Constitution, this case took place. A total of six petitions, including the one filed by Sajjan Singh was filed by the court to protect the right to property and challenge the validity of these reforms.
Facts of the case
The petitioner in this case, Sajjan Singh, was a former ruler of the Princely State of Ratlam in pre-independence India. After the independence, Sajjan Singh and the Indian Union Government had entered into an agreement to allow him certain specific land ownership rights.
In 1964, when the 17th Constitutional Amendment was enacted, it brought about a lot of changes to the Constitution, specifically to the balance of power between state and centre, and the ninth schedule was broadened to add land reform legislations and provisions.
This Act also impacted the land ownership rights granted to Sajjan Singh, as a result of which, he challenged the constitutional validity of the 17th Amendment Act before the Supreme Court, on the grounds that it violated his special privilege and right to property granted under the Constitution, as well as the agreement signed with the Indian Union.
Issues Raised
The two important issues dealt in this case were:
Whether or not the power of Parliament under Article 368 applied to the fundamental rights or not; and
Whether the inclusion of the ninth schedule to protect the land reform laws violate the basic structure of the Constitution.
Judgement
In this case, the Supreme Court decided in favour of the law and upheld the constitutional validity of the 17th Amendment Act. Hence, the decision of the previous case was also upheld, and the Supreme Court had stated that as long as Article 368 provided this power, the Parliament was free to amend any part of the Constitution including the fundamental rights.
It was decided in a 3:2 majority by the bench that since the restriction under Article 13 applied to a ‘law’ and while the amendments to Constitution were not the law, the power of parliament could not be restricted through Article 13.
However, an interesting aspect of this case also revolves around the viewpoints of the minority judgement holders of the Bench, who were of the view that this power can be abused by the Parliament to alter or change or even destroy the basic structure of the Constitution.
I. C. Golaknath & Ors vs. State Of Punjab & Anrs. (1967)
Another case filed to question the validity of the 17th Constitutional amendment, where the landowners in Punjab had challenged it on the ground that it impacted their right to property.
Facts of the Case
When the Punjab Security of Land Tenures Act, 1953 was passed by the Punjab state government, it put a limit on the lands owned by families in Punjab. Henry Golakhnath, such an individual, had to give away a major chunk of his land to the state government as it was surplus as per the provisions of the Act. The ownership of the excess land was to be transferred to the government.
As a result of this, the Golalkhnath’s approached the Supreme Court, along with other such aggrieved petitioners to question the validity of the Act passed by the Punjab government.
Issues Raised
The following issues were discussed in the case:
Whether or not the Parliament had power to amend the fundamental rights in Part III of the Constitution;
Whether an amendment of the Constitution be considered as a law which falls in the scope of judicial review; and
Whether an amendment of the Constitution would amount to a constitutional law or ordinary law.
Judgement
In a landmark judgement, with a thin majority, the Bench had held that the power of Parliament to amend the Constitution was not absolute, and had certain limitations. Moreover, the SC also observed that an Act passed to amend the Constitution under Article 368 would be considered as an ordinary law and not a constitutional law. As a result, if the changes proposed in the constitutional amendments were violative of Article 13, it would be held as invalid.
This was the first time in the Indian courts that this point of view got a majority vote with respect to the limit on parliamentary powers to change the Constitution. As a consequence of this Judgement, the Constitution had to go through a major amendment, ie., the 24th Constitutional Amendment, which if you recall correctly, amended Article 367 of the Constitution in a way that provided Parliament explicit powers to amend any of the part of the Constitution of India, including the fundamental rights.
One can say that this case set a platform for the case of Kesavananda Bharati, wherein the basic structure doctrine was introduced.
Kesavananda Bharati vs. State of Kerala (1973)
Land reform laws in India aimed at limiting the amount of land owned by a particular person, and to do away with the inequality in the ownership of property caused due to the age-old system of zamindari. However, these laws also hampered the right to property of individuals.
The constitutional validity of the Land reform laws was also brought up in the most historical judgement in the constitutional law history, that is, the Kesavananda Bharati case. Early on after independence, the focus of the government was to abolish the zamindari system. For furtherance of which, land reforms were enforced by various central and state legislatures. One such legislature was challenged by the head of a religious institution, Sri Kesavanada Bharati, when the ownership of their land was taken away by the Kerala state government. This decision of the government was upheld by the court, as the law was in accordance with the provisions of the Constitution.
Yet, undefeated, the petitioner decided to take another shot, and challenged the amendments to the Constitution of India, on the grounds that the basic structure of the Constitution was against these changes. This is what led to the inception of the basic structure doctrine.
As seen above, in the previous cases, the court had started emphasising on the basic structure of the Constitution. However, it took an active effort, a petition to the court to bring this change into action.
Facts of the case
The petitioner in the present case, Shri Galvaru Kesavanada Bharati, was a leader of the Edneer Mutt, which is a religious sect in a district of Kerala. From the plot owned by the sect, the petitioner was an owner of a certain part of the land used for religious purposes. In 1969, when the Kerala state government introduced the Kerala Land Reform Amendment Act, it allowed the state government to acquire certain parts of land from the Edneer Mutt, religious sect.
As a result of this, Shri Kesavanada Bharati filed a petition under Article 32, before the Supreme Court of India in 1970 March. While this petition was ongoing, in 1971, the Kerala government enacted another law entitled the Kerala Land Reforms Amendment Act of 1971. The objective of the petition was to enforce his basic right to practise his religion and administer it with ease.
Issues Raised
As one of the most important precedents, that shaped the way the Constitution of India is amended, was decided on the basis of the following issues:
Whether or not the Kerala Land Reforms Act was constitutional and valid?
Whether the power of Parliament to amend the Constitution under Article 368 was absolute or not?
Whether the doctrine of basic structures is also a part of the Constitution? and
whether or not, the power of parliament to amend the Constitution extends to the basic structure doctrine?
Judgement
After careful consideration of the ongoing situation, facts, the precedents, and the Supreme Court in a 7:6 majority decision, established the constitutional validity of the basic structure doctrine. Thus, it was finally decided through this landmark judgement that the basic structure doctrine was an integral part of the Constitution, and could not be amended in any way.
This also put a stop to the question of limitation on power of Parliament to amend the Constitution. Thus, we can see how this judgement, delivered over 50 years ago, still resides in our hearts, still speaks volumes to us, for the protection of the principles of democracy and the rule of law in India.
After this judgement was passed, the entire course of the constitutional amendments also changed and it also served as a stark reminder of the presence of democratic principles in the legal framework within India.
Minerva Mills Ltd. vs. Union Of India (1980)
After the Kesavanada Bharati case, the Indian courts started recognizing the basic structure doctrine. The Minerva Mills case happened subsequently, when the mills were nationalised by the sick nationalisation Act. This case became one of the landmark judgements in the history of constitutional amendments as well because it was in this case that the Supreme Court provided clarification about the doctrine after its inception.
The interesting part of the judgement was an observation of the Supreme Court that since the doctrine limited the parliamentary power to amendment, any alteration to change this limit and grant itself an unlimited power would be not valid. Consequently, the Supreme Court struck down two clauses of the 42nd amendment act, which were imposed during the emergency. Let us check out the facts, issues and judgement in brief.
Facts of the case
In 1974, the Parliament had passed the Sick Textiles Undertakings (Nationalisation) Act. The objective of this Act was to nationalise the textile companies and improve its development. The action was made in the name of a wide and public interest, ie., to benefit the society at large. The idea was to make goods affordable for all. Minerva Mills was also a textile company, since it fell in the silk manufacturing categories, as per this act, they had to undergo nationalisation. As a result of which, the petitioner came before the court to contest the validity of the Act.
Issues Raised
Two important issues were raised in this case on the constitutional validity of:
Section 4 and Section 5 of the 42nd Amendment Act, 1976; and
Whether or not, sub clause 4 and 5 of Article 368 were constitutional and valid.
Judgement
With a 4:1 majority, the decision of holding the sections 4 and 5 of the 42nd Amendment were made. The bench held that Article 31C was amended by Section 4 in such a way that it gave the DPSPs supremacy and power. Moreover, Article 39(b) and ( c) were also amended to protect the Sick Textile Act from being challenged in the form of judicial review, for the violation of fundamental rights. Moreover, after reading Article 368(5), they even stated that any provision or law which provides the state an infinite power or authority is not valid and unconstitutional.
I.R. Coelho vs. State of Tamil Nadu (2007)
Facts of the Case
Admission of laws that were previously held as unconstitutional or arbitral, to the ninth schedule of the Constitution, post amendments was quite evident.
Even a similar decision of the Calcutta High Court, of holding Section 2(c) of West Bengal Land Holding Revenue Act, 1979 as arbitral was somehow overturned, when the 66th Constitutional Amendment Act, 1990 inserted that Act to the Ninth Schedule.
While referring to the judgement passed in the case of Waman Rao and Ors. vs. Union of India (1981), a five-judge Constitution bench, in 1999 held that the laws being added to the 9th schedule, could be challenged on the grounds of violation of fundamental rights, if they were passed after April 24, 1973.
Hence, the 9 judge bench of the Supreme Court was assigned to re-examine this decision and provide the proper and final standing on the position of judicial review.
Issues Raised
Originally, the ninth schedule was inserted to the Constitution to bring about changes that would be in furtherance of the social welfare and would help in achieving the DPSPs and contained around 13 laws revolving around land reforms.
However, with time, many laws which violated the fundamental structure of the Constitution were being inserted to the ninth schedule, and the protection over judicial review was also extended to such laws. Before this case, more than 200 laws were a part of the protection provided by the ninth schedule, including topics like reservation and trade.
Hence, there was a dire need to make a strong ground on the power of judicial review. With this in mind, the following was the primary issue discussed in the case:
Whether or not all laws put in the ninth schedule after the judgement of the Kesavanada Bharati case was passed, would the laws inserted in the ninth schedule be protected from judicial review, even if they were violating the fundamental rights or the basic structure of the Constitution?
Judgement
A 9 judge bench of the Supreme Court, passed a unanimous judgement in this case when the power of judicial review of the court was in dispute again. In January 2007, while delivering this judgement, the Supreme Court confirmed the supremacy of the basic structure doctrine. Also, they extended this applicability to the 9th Schedule and held that even if a law was protected under the list of 9th schedule, it was still open to review from the judiciary, if there was any doubt or scope of the law not being in accordance with the basic structure and the fundamental rights.
They even emphasised on the restriction to the power of parliament to make laws, and stated that even Article 368 must safeguard the basic structure and essence of our Constitution.
Conclusion
India as we know today, would be a distant dream if not for the changes that our legal framework has gone through. What would have happened if there was never an amendment to the Constitution at all? It could have resulted in an India where the freedom of speech and expression did not have a single restriction or where there were no special provisions to protect the weaker sections of the society.
When we talk about the entire journey of the constitutional amendments , we can say that they have definitely brought great changes to the framework of India. Out of the total 106 amendments enacted until this day, many have also led to disruptions, whereas many of the amendments have actually helped in the development of our country and all of its people.
However, the most impactful part is that through this journey we have seen both positive and negative impacts of the important constitutional amendments. Before parting, let’s summarise the list of changes seen throughout the year through constitutional amendments;
Many times abuse of power was seen. However, due to the federal nature of our nation, it has been overcome by creating a balance of power;
Socialist and Secular, and Integrity words were added in the Constitution; and
Power of Parliament and the Judicial review were two major reasons of conflicts in most of the constitutional amendment;
Steps have been taken to protect the EWS, SEBC, SCs and STs, children and women;
Fundamental duties have been imposed and a lot more.
The aspect that makes the constitutional amendments important is either a socio-economic change, or an amendment that disrupts the status of India as a free democracy and tarnishes its basic principles by an imbalance in power between the judiciary, legislature and executive.
Frequently Asked Questions (FAQs)
Why are constitutional amendments important?
amendments mean change. In India, no law can be passed, unless and until the Constitution provides for it. With changing dynamics of the nation, its legislative framework has to be changed too which is only possible through amending the provisions of the Constitution in certain cases.
Which amendment is known as the mini-constitution of India?
The 42nd Constitutional Amendment is the mini-constitution of our country. The reason behind this being, the fact that the amendment was one of the most lengthy constitutional amendments and made changes to many provisions of the Constitution.
In which year were the terms Socialist, Secular and Integrity, inserted to the Preamble of Indian Constitution?
To bring a socio-economic change in the nation, the three terms mentioned above were proposed to be added to the Preamble, making them the basic elements of the Constitution in the year 1976. The law that gave effect to this was the Constitution (Fourty-Second) Amendment Act, 1976)
Does the power of Parliament under Article 368 provide absolute power to amend the Constitution?
No, this power to the Parliament is definitely not absolute. Even though, in the early amendments, it was believed to be so. However, at later stages, with multiple cases of the same accord (see above), the courts started observing the article more deeply, and thus, limited the power of Parliament, by introducing the basic structure doctrine, which has supremacy over the power of the Parliament.
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This article is written by Barathwaz T and has further been updated by Gauri Gupta. It dives into the legality of incest in India, which is governed by various personal laws of different communities in India. Incest is a complex issue which is influenced by different social, cultural, and legal factors. The article deals with the ambiguities which revolve around the concept of incest in India and highlights the role of various legislation and socio-cultural factors that have played a role in developing the concept of incest in India.
Table of Contents
Introduction
Incest is a harsh reality for many communities in India. It is prevalent within the safest environment of an individual’s family. The issue is rarely talked about, thus leading to a lack of awareness and understanding of the wrong. As a result, many victims suffer in silence with no clear legal provisions to safeguard the abuse. This gap in law has provided a protective shield to the offenders, making it difficult to break the cycle of incest in Indian households.
Incest can be of various forms and can exist between an adult and a child, between siblings, and also between two consenting adults. The most prominent and widely reported form of incest exists between an adult and a child and is also known as juvenile incest.
Incest in ancient times developed as a medium to protect the royal lineage of the persons from the same kinship to avoid the dissemination of power amongst the non-royal clans. Soon it evolved into a prohibited form of relationship as it led to multifaceted genetic disabilities amongst the offsprings.
But what is the status of such a relationship? Is it illegal? Will it lead to criminal action against such persons? All such questions shall be discussed in detail in the article.
Meaning and concept of incest
Incest is derived from the Latin phrase “incestus” which means someone who is “impure”. Johann Jakob Bachofen is considered to be one of the earliest scholars who opened a gateway for numerous theories on the origin of incest as a taboo in society. Furthermore, Emile Durkheim, a famous sociologist, firmly believed that the concept of an incestuous relationship was invented and was not an original form of organisation among humans.
By the late 1960s, anthropologists were confident that the concept of incest was not universal in nature and was applied differently across different cultures. This portrays that the concept of incest is intertwined with the different cultures and moralities of various countries across the globe. However, one cause of concern which was common among all the nations was the biological risk associated with incest. However, in contemporary times, the personal laws of various religions and the national laws of different countries are governing the concept of incest, and such regulation is governed in light of the history, culture, and religious values of the different communities.
Most of the countries have criminalised incestuous relationships, including Brunei, Iran, Nigeria, UAE, and Sudan. These countries provide a death penalty to all those who are convicted of the offence of incest. On the other hand, there are countries including India, Brazil, and Japan, which do not expressly prohibit an incestuous relationship.
Ancient Indian sexuality and incestuous norms
Sexuality in ancient India was often characterised as multi-faceted and sometimes contradictory. The Indian subcontinent is one of the oldest places where sexuality has been discussed extensively by means of books and other sources. Nudity was accepted in many parts of Southern-India and, to some extent, in Northern-India as well, as depicted in Ajanta caves and some ancient sculptures.
The history of the Indian subcontinent is very complex to be understood because of its diversity and complex civilization structures that demand a great deal of attention to its evolutionary aspect. People from such important geography have given a great deal of importance to sexuality, which is intrinsically connected to religion. A lot of ancient texts, arts, games, and sculptures depict the importance that was associated with sexuality in ancient India.
Kamasutra, an ancient text that delves into lovemaking, sexuality, and romantic relationships, is one of the oldest sex manuals that has ever been discovered; it explains in detail the positions to have sex. Ananga-Ranga is another significant sex manual that is male centred and talks about the pleasure zones and arousal points in detail.
This is not just it; the oldest text that discussed sexuality in detail was from India. The famous and ancient texts of Hinduism, Jainism, and Buddhism were the earliest sources of sexuality in India, discussing in detail the moral aspects of sexuality, family, relationship and fertility prayers. These texts also give us a hint of ancient Hindus’ involvement in polygamous and polyandrous relationships. The intention being to protect the royal lineage, and the rest of the people were restricted to a monogamous relationship.
In most of the tropical regions, people did not cover their upper body due to climatic reasons. The historical shreds of evidence also represent that the wealthier section of the society wore gold and other ornaments to cover their upper body, and the rest of them survived with uncovered torsos covering only the lower body.
The ancient Indian art produced during the 10th and 12th centuries freely expressed the idea of sexuality and lovemaking. Temple sculptures capturing all sex positions mentioned in Kamasutra were part of ancient India’s sexuality; experts also say that these sculptures were part of sexual education. Education here is used very loosely, as our modern understanding of education is totally different. Cheikh Nefzaoui’s Perfumed Garden is a classical sex manual of the Islamic religion. In the later part of the 16th century, various poets described the process of lovemaking and sex poetically, appealing to a great deal of audiences.
Such liberal ideology of the Indians started to evaporate at the advent of the colonial invasion of the sub-continent, where the western ideology of stigmatising public depiction of sexuality started to spread. During the revolt of 1857, when the victorian rules were infiltrated into the political domain of India, Indian liberalisation towards sexuality was frowned upon, ridiculed, and considered to be inferior. Paradoxically, this new outlook led to the promotion of education for women and a puritanical attitude towards sexuality even within marriage.
Incest as a moral wrong
Incest is considered as a moral wrong mainly for two reasons:
The genetic risk associated with a child arising out of an incestuous relationship, and
That incest might lead to a massive fallout between family members.
Some people also believe that incestuous relationships can lead to the exploitation of power within a family, as there may be cases where the consent given for an incestuous relationship might be due to coercion. An illustration of the same is where a person in authority, such as a relative who is in charge of the financial, educational, and social well being of a child, uses his influence to take the consent of the child to engage in a sexual relationship with her and manipulate her by kicking her out of the house and not paying her tuition fee if she refuses.
Cultural and societal norms also play a huge role in declaring incest as a moral wrong. Incest is considered a taboo in almost all the societies, mainly because it threatens to destroy the foundation of kinship on which the society is based. Incestuous relationships are harmful for an individual as well as the entire community. This is because incest has a direct impact on the stability and harmony of a society.
It is also argued that if an incestuous relationship exists between two consensual people, then it cannot be called a moral wrong. The reason behind this is that if both the parties are aware of the risks involved with an incestuous relationship and they still engage in such a relationship with their own free will and without coercion, then there should be no objection to such a relationship.
Incest as a crime in India
An act becomes a crime when it is expressly declared to be a crime under the legislation, not just because of an act which is immoral or socially tabooed. Incest is not a crime under any legislation as of now. There is no specific legislation or penal provisions that expressly declares an incestuous relationship to be a criminal activity, but they might attract provisions for other sexual offences like sodomy, rape etc. Therefore, a person cannot be held criminally liable or punishable for involving in an incestuous relationship, despite it being socially unacceptable and frowned upon.
Hence, it is not an offence if two consenting adults get involved in an incestuous relationship. They do not offend any legal provision by doing so but might offend the sentiments of society at large. Also, some personal laws condemn the act of incest to a certain degree.
Applicability of laws on Incest in India
In 2009, an incident in Mumbai where a 60-year old father raped both his daughters for more than nine years, shook the conscience of the whole country. The perpetrator was charged only for rape under Section 376 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC” and now Section 64(f) of the Bhartatiya Nyaya Sanhita, 2023, which is hereinafter referred as the “BNS”). A man who forced himself on his daughter for more than nine years can’t be held for incest, as the penal law does not recognize it as an offence.
The apathy of law in serious regimes like incest would infiltrate a silent message of acceptance of such act. Social workers argue that this apathy of law is a portrayal of society’s turndown and refusal to concede that incest exists. The situation is not gaugeable because most of the time the child’s interests are sacrificed to protect family values. Many cases go unreported. However, to an extent, a report by the National Commission for the Protection of Child Rights has shown that from 2020 to 2021, there was a significant increase of 16.2% in the crimes against children in India, with Delhi being on the top of the list with 7118 child abuse complaints.
Furthermore, another report by the National Crime Records Bureau titled “Crime in India 2022” has provided that every hour a sexual crime is reported against seven children, with 4 of these crimes being rape in 2022.
However, there is no legislation or provision of any statute that penalizes or recognizes incest as a crime.
The Parliament of India has time and again introduced several Bills apart from personal laws of Hindus, Muslims, and other communities, to place a check on the practice of incest. These include: 1. Incest Offence Bill, 2009: It was introduced in the Rajya Sabha and aims to punish offences arising out of incest.
2. Incest and Sexual Abuse in Family (Offences) Bill, 2010: It was also introduced which aimed at defining offenses of incest and domestic sexual abuse and also providing a machinery to punish the acts of incest and domestic abuse.
However, none of these bills have been passed by the Parliament yet.Therefore, incest in India is governed by other relevant provisions such as Sections 5 (iv) and (v) of the HMA which provides for sapinda and prohibitory relations respectively. The same is punished under Section 18 of the HMA.
Some statistics about incest
The RAHI, (Recovering and Healing from Incest) is a Delhi based NGO in one of its report titled “Voices from the Silent Zone” has revealed that more than 3/4th of the women in the middle and upper-class household in India are abused by incestuous activities. The perpetrators at most of the time are the uncle, brother, domestic help or any other person with whom the women develop a fiduciary relationship. The founder of the firm also comments that “lacuna in the law regarding these tabooed abuses is a reflection of the society which is immature to own up to it, and this also sends a message that it is not serious an offence to commit.
A study conducted by the Tata Institute of Social Science in 2018 on the abuse and safety of child and adults in East Godavari and Krishna districts of Andhra Pradesh provided that young children feared corporal punishment. The study also revealed that girls faced sexual abuse in both public and private spaces, and the lack of support and social stigma isolated these girls facing abuse.
Vidya Reddy, founder of Tulir-CPHCSA (Centre for Prevention and Healing of Child Sexual Abuse) a Chennai based NGO has explained that abusers are not shadowy and rugged-looking people who are pedophilic in nature but usually it is a person whom the child trusts and that person without any misgiving or reticence indulge in sexual activity with the child with whom the child shares a fiduciary relationship.
Incest and Hindu marriages
In India, marriages are governed by the personal laws of each community. For Hindus, these laws are provided under the Hindu Marriage Act, 1955 (hereinafter the “HMA”). The HMA under Section 5 lays down the conditions of a valid marriage and also provides for certain incestuous marriages under Section 5(iv) and Section 5(v) to be void ab initio. The provisions provide for prohibited degrees of relationship and sapinda relationship, which are both incestuous in nature and thus are void ab initio.
Void marriages
Under Section 5 of the HMA, certain essential elements of a valid marriage are outlined. These include:
The parties should not have a living spouse.
Parties should not be of unsound mind.
Parties should be major.
Parties should not be within the prohibited degrees of relationship.
A marriage is void as per the law if these conditions are violated.
The following provisions of the law deals with incest in India:
Degrees of prohibited relationship
Under Section 5(iv) of the HMA, both parties shall not be under the prohibitory degree of relationship. A marriage between two such individuals is considered to be void ab initio.
The parties are considered to be in a prohibited degree of relationship if they are:
Lineal ascendants to each other.
Examples: If A and B are mother and son, respectively.
If A and B are grandfather and granddaughter, respectively.
Spouse of Lineal ascendants or descendants / Uterine blood relationship.
Example: If A and B are mother-in-law and son-in-law, respectively.
If A and B are step-father and step-daughter, respectively.
Siblings and spouses of siblings.
Example: If A and B are brother and sister, respectively.
If A and B are brother-in-law and sister-in-law, respectively
Siblings of lineal ascendants or descendants.
Examples: If A and B are brothers of the grandfather and granddaughter, respectively. Uncle & niece; Aunt & nephew.
In the case of Sanjiv Kumar Mahato vs. Rekha Mahato (2018), the Jharkhand High Court had to deal with the issue regarding whether the petitioner getting married to his own bhanji would fall within the degrees of prohibited relationship. The appellant in this case was seeking an annulment of the marriage on the grounds that the relationship was within the prohibited degree. The court dismissed the said appeal, stating that there was no proof of the same that had been provided to the court.
However, this Section shall not have a super riding effect on the established customary practice of the community to which the spouses fall under.
In other words, Section 5(iv) provides for an exception, which is the well-established custom of a party which allows such an incestuous marriage. An example of the same is the case law of Shakuntala Devi vs. Amar Nath (1982), wherein the Punjab-Haryana High Court decided on the issue of whether two people can marry within the prohibited degree of relationship.
The court held that if two people are marrying within the prohibited degree of relationship, then they must be able to show that doing so is an established custom. In the present case, the petitioner wanted an annulment of the marriage on the grounds that it was within the prohibited degree of relationship, but the court held that the parties fell under the community of Aroras, who have a custom of having a liberal stance about prohibited degrees between spouses.
Sapinda incestuous relationship
Section 5(v) of the HMA provides that the bride and the bridegroom shall not be under the sapinda form of relationship. If such parties get married, it will be a void marriage under the HMA.
A Sapinda relationship exists between:
Five generations from the lineal ascent of the paternal side, including the fifth generation; and
Three-generations from the lineal ascent of the maternal side, including the third generation. Usually, the line being traced upwards has to consider the person involved as the first generation.
Example: If the bridegroom is the progeny of any lineal descendants of five generations from the father’s side, including the fifth generation, or three generations from the mother’s side including the third generation and vice-versa. In this case, both the parties to the marriage are considered as “sapindas” and their marriage is prohibited under the Hindu Marriage Act, 1955.
Similar to that of the prohibited degree of relationships, marriages within a sapinda relationship may be permitted if there is a long, well established customary practice allowing the same.
In the case Arun Laxmanrao Navalkar vs. Meena Arun Navalkar (2006), one of the issues before the Bombay High Court was whether a sapinda marriage can be nullified under Section 11 of the Hindu Marriage Act. The court held that unless a customary practice for sapinda marriage can be established, the marriage would be void. In the present case, the court ruled that the burden of proof shall be on the wife to prove that there was a customary practice in her community for sapinda marriage. The court in the present case was not satisfied by the evidence submitted by the wife and held that the marriage shall be void.
The Delhi Court in the case of Neetu Grover vs. Union of India and Ors (2024), observed that the Hindu Marriage Act prohibits marriage between two Hindu adults if they are sapindas of each other. The same is an incestuous relationship and thus void under Hindu law. However, the exception to the same is the custom or the usage governing these parties. The court observed that it is important to balance the choice of an individual to marry with that of the boundaries of law and the interests of society.
Thus, the Hindu law prohibits incestuous relationships under Section 5(iv) and Section 5(v) of the HMA. The rationale behind the same is the preservation of the family structure, prevention of the exploitation of the victims of an incestuous relationship, especially in cases where one has dominance over the victims, prevention of the likelihood of genetic disorders in the offspring, and to enforce the cultural and ethical standards of a moral society.
Muslim marriages and incest
Muslim marriages are governed by the personal laws, which are specific to each denomination, Shia and Sunni, within Islam. These denominations differ in their political ideologies and also have different interpretations of the Muslim jurisprudence. This includes the marriage laws. Thus, both the Shia and Sunni schools of law interpret incestuous relationships differently, and the same is prohibited on different grounds under both the schools.
Marriages are divided into the following three categories under the Muslim jurisprudence:
Shahih: A valid marriage.
Fasid: An irregular form of marriage.
Batil: A void marriage.
Unlike the Sunni school of thought, the Shia school of thought does not differentiate between void and irregular marriages. However, what is common in both the schools of thought is a complete prohibition on incestuous relationships.
Grounds for prohibition of incestuous relationships under shia law
The Shia school of thought has completely prohibited marriage on the following three grounds:
Consanguinity
Consanguinity refers to blood relationships, and if the bride and bridegroom are related to each other by blood, their marriage is prohibited. These include:
Men are prohibited from marrying:
Their mother or grandmother, however distant.
Their daughter or granddaughter, however distant.
Their uterine or consanguine sister.
Their niece and grandniece.
Their parental or maternal uncle and great uncle.
Affinity
Affinity refers to relationships which arise from marriage. A man is prohibited from marrying a woman who is related to him through his wife. The same will be applicable even if the marriage is based on adultery or is invalid. The same rule is applicable to women with respect to their husbands.
Men are prohibited from marrying:
Their wife’s mother or grandmother.
Their wife’s daughter or granddaughter.
Their father’s wife or their grandfather’s wife.
Their son’s wife or grandson’s wife.
Women are prohibited from marrying:
Their husband’s father or grandfather.
Their husband’s son or grandson.
Fosterage
Fosterage is a unique form of relationship which is recognised in Islam. It refers to a relationship wherein a child was fed by a woman other than his biological mother before the age of two years. Such relationships create the same prohibition on marriage as blood relationships.
Men are prohibited from marrying:
Their foster mother
The wife of their foster son.
Their foster sister.
Grounds for prohibition of incestuous relationship under sunni law
The Sunni school of thought has the same prohibitions on incestuous marriages as under the Shia School. However it provides for a few exceptions to the rule of fosterage. It provides that a Sunni man can contract a valid form of marriage with his:
Sibling’s foster-mother.
Foster sister’s mother.
Foster daughter.
Foster sister.
The Shia school does not recognise these exceptions and any marriage among foster relations is void.
Special Marriage Act and incest
The Special Marriage Act, 1954, was enacted to regulate and govern marriages that could not be solemnised due to the different types of religious customs that govern interfaith and inter caste marriages. The Act, like all the other personal laws prohibits marriages between blood relations. Section 4 of the Act says that the parties to marriage should not be within the prohibited degree of relationship. It prohibits marriage between:
Relationship by half or uterine blood as well as by full blood;
Illegitimate blood relationship as well as legitimate;
Relationship by adoption as well as by blood.
The Act expressly declares that marriage between such relations shall be null and void. Refer to Schedule I on the Act for further clarity and detailed list of the prohibited degree of relationship.
Juvenile incest in India
Juvenile incest refers to a sexual relationship with a minor. It raises significant questions on the issues of protection of children and the conduct of society towards protecting those who are vulnerable. Currently, there are no laws which regulate juvenile incest in India. The criminal laws are based on the “harm principle” which provides that when an action of a person causes harm to another, it should be corrected through a remedy. This remedy is punishment in the form of imprisonment and fines under criminal laws. Even the Juvenile Justice (Care and Protection of Children) Act, 2015 fails to recognize sexual abuse due to incest. Furthermore, Section 5 of the Immoral Traffic (Prevention) Act 1956, punishes indulgence into child prostitution, but does not deal with sexual abuse.
On the other hand, under the Prevention of Children from Sexual Offences Act, 2012 (POCSO), a sexual relationship with a minor is a punishable offence as under Chapter II. What is important for us to understand that an incestuous relationship with a minor is a more grave and wrongful act than committing a rape on the minor. This is because the degree of harm and wrong committed against their personal dignity is even higher in such cases. Thus, it is important to punish an incestuous relationship with a minor more severely than rape.
The importance of introducing a law on protecting minors from incest lies not only on the increasing number of cases of an incestuous relationship with a minor but also in India’s obligation under Article 19 of the United Nations Convention on the Rights of the Child (1989). India is a signatory to the Convention and thus has an obligation to ensure the protection of children in India. A legislation which punishes those convicted of juvenile incest is extremely important for eradicating the offence of incest from society and to provide justice to the victim.
Status of children born out of an incestuous relationship
Muslim law
Under Muslim law, a child born out of an incestuous relationship is considered to be illegitimate. This illegitimacy can arise out of any invalid form of marriage, not just incestuous relationships.
All illegitimate children born out of invalid marriage under Muslim law are entitled to maintenance and inheritance; this position has been clearly specified in various sources of Muslim law.
Under Muslim personal laws, the law with respect to maintenance can be summarised in the following points:
Hedaya: It means “guidance” and provides that a child must be provided with the necessities of life, including food, lodging, education, etc.
Fatwa -i- alamgir: It provides that an illegitimate child must be provided with the basic necessities of life. The authoritative texts of Islam have elaborated on the concept of inheritance and the need to provide children with the basic necessities of life; however, in practice, it is just limited to safe and clean food.
The common law principle of “Nullius Filius,” which means a “son of no one,” refuses these basic rights to an illegitimate child.
Bharatiya Nagarik Suraksha Sanhita, 2023 (previously the Code of Criminal Procedure, 1973): Section 144 of the BNSS (previously Section 125 of CrPC) clarifies the ambiguity in the contradicting laws, wherein on the one hand the hedaya provides that the father has to provide for the basic necessities of his illegitimate child and the Quran, on the other hand, limits such basic necessities to food and settles the law regarding the maintenance of illegitimate children. It puts an obligation on the father to maintain his illegitimate child under Section 144 of the BNSS.
In the case of Sukha vs. Ninni (1965), the issue before the Rajasthan High Court was whether a contract for maintenance with a Muslim father was enforceable. The arguments presented before the court were that such a contract is void under Section 23 of the Indian Contract Act, 1872. This is because such a contract would be against the provisions contained under Muslim law. The court held that such a contract is not violative of Muslim law as the maintenance to be given under Section 125 of the CrPC is in harmony with the public policy.
The settled position of law regarding inheritance is that:
1. Shia law: The Shia law adheres to the principle of “Nullius Fillius” strictly and does not allow the scope for any kind of maintenance under any Muslim law. In Shia law, the illegitimate child can inherit neither from his mother nor from his father.
2. Hanafi law: The position of Hanafi law is not so strict in this sense. The illegitimate child has to be left in the care of the mother until the age of 7. After which the child can inherit from his mother’s side, but the father has no obligation towards the child.
Hindu law
Any marriage in violation of the conditions of the marriage under Hindu law is void, and any child born out of such a relationship is considered to be illegitimate. Only certain rights of such a child is recognised, but the Marriage laws (Amendment) Act, 1976, which amended Section 16 of the Hindu Marriage Act, rendered the status of legitimacy to all children born out of a marriage under the Hindu Marriage Act, irrespective of the fact that such a child is born out of a null and void marriage.
In the case of Jinia Keotin and Ors. vs. Kumar Sitaram Manjhi and Ors. (2002), the Supreme Court of India examined the issue regarding the ambiguity surrounding the term “property” given in Section 3 of the Marriage Laws (Amendment) Act, 1976. It was argued that the term “property” included both self acquired and ancestral property of the parents. The court held that the term “property” shall only include the self acquired property and not ancestral property when it came to succession or inheritance by children arising out of an incestuous relationship.
In the case of Revanasiddappa vs. Mallikarjun (2023), the Supreme Court of India held that the case of Jinia Keotin and Ors. vs. Kumar Sitaram Manjhi and Ors. (2002) was decided by using narrow interpretation, which was not the correct interpretation, and held that the term “property” shall also include all property of the parents, including the ancestral property, as it was not the child’s fault that he/she was born out of a void marriage.
Need for incest law
It is significant to establish clear regulations and penalties on incest to protect the victims from the abuse of trust and power. It is also important to foster a safe environment for children and promote the accountability of their guardians. India lacks legislation to regulate incestuous reasons, and the following reasons clearly explain the need for such laws:
Incestuous relationships create power imbalances, especially within families. This leads to coercion, manipulation, and abuse of the victim. The taboo surrounding incest has led to division of the families, and thus, there is a need to criminalise the same to ensure stability and social order. What is often missed in cases of incestuous relationships is the emotional abuse of the victim, which involves shame, guilt, and trauma often leading to lifelong psychological effects and, in most cases, suicide.
The offspring of an incestuous relationship have a higher risk of inheriting genetic disorders due to the higher percentage of their DNA resulting in genetic mutations and thus exposing the life of the child to a life of serious diseases, including birth defects and mental health issues.
Incest is not only considered to be an unlawful act but is also a moral and ethical wrong in most of the relations and communities. Thus, in order to respect the moral values of such groups and to reinforce the ethics for the future generations, it is important to enact laws prohibiting incest.
Most of the countries across the globe have laws prohibiting incest. Therefore, in order to ensure alignment with the international standards on human rights, the protection of women, and the protection of children, it is important to introduce laws on incest.
Thus, it is the need of the hour to introduce laws prohibiting incest in India to safeguard the individuals and ensure alignment with international practices. Further, it will ensure that punishment is provided to those convicted of the offence, which will be in conformity with the judgements of the various High Courts, which provide that incestuous relationships are violative of one’s right to dignity, especially in cases where it is non-consensual in nature.
Conclusion
The Indian legal framework does not provide for any legislation or a provision that punishes or recognizes incest as a crime. Where on the one hand, other countries like the US, UK, Germany have made strict punishments and laws against incest, India still lacks such laws. The laws of incest were enacted in the United Kingdom as early as in 1980. An incestuous relationship is a crime and a penal offence in the UK. The US has different terms of imprisonment in different states, with a maximum of up to 20 years in Massachusetts. It is for 5 years in Hawaii.
Some countries have even diluted the laws against incest; they see it as a form of liberalisation. Sexual activity with close relations used to be an offence in many countries, of which many countries now have taken a liberal stance. Incestuous activity which is involved with a minor is still disgusted in many such countries that have taken a liberal stance regarding incest.
The view in India regarding incest is that incest is never consensual; it is often an expression of force and dominance by the individuals. Power acts as a trigger that infiltrates incest within the family. Denial and disbelief are mostly the reactions when it comes to incest, as the reputation of the family is considered on a higher pedestal than the interest of the child. It is high time India recognises incest as a crime.
Frequently Asked Questions (FAQs)
Is incest a crime in India?
At the moment, there are no specific laws governing incest in India. However, in the contemporary jurisprudence, incest is considered and treated to be rape. In case of a minor, an incestuous relationship is punished under Protection of Children from Sexual Offences Act, 2012.
What are the effects of incest?
Victims of incest can get affected psychologically, emotionally and socially and it can be detrimental to their well-being. Such victims might suffer from various mental disorders such as depression, post-traumatic stress disorder and complex Post Traumatic Stress Disorder. They might also fall prey to negative self image and guilt due to incest related offences. There have been cases where the victim might develop traumatic bonding with their abuser and also face difficulty in forming healthy relationships in the future. Further, they might also have to deal with feelings of isolation, stigma and abandonment due to incest.
What is the legal status of cross-cousin marriage in South India?
It is not uncommon in South India to come across communities that practise consanguineous marriages (a marriage wherein two people are related to each other by blood such as second cousins or close relatives). There are restrictions that are prevalent in these communities as well, like they cannot marry within the same Gotra but they are allowed to marry their first cousins. In South Indian communities, a marriage between uncle and his niece is also not uncommon. However, the Hindu Marriage Act prohibits marriage between cousins for Hindus unless it can be proved that doing so is a regional custom.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
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This article has been written by Deyasini Chakrabartiand has been further updated bySakshi Kuthari. This article mainly focuses on various aspects of divorce under the Hindu Marriage Act, 1955. It discusses in detail the concept and evolution of divorce in India, the various divorce theories, the sociological aspects relating to divorce, all the statutory provisions relating to divorce under the said Act, the process for filing a divorce, the alternative relief available in divorce proceedingsand the judgements relating to divorce.
Table of Contents
Introduction
Marriage is a significant institution that not only unites two people but also interconnects their families, reflecting a commitment that extends beyond mere companionship. Traditionally, in many societies, including Hindu communities, marriage was viewed as a sacred and permanent bond with implications extending beyond this life. The concept of marriage in Hindu culture has historically been considered almost unbreakable, reflecting beliefs about the sanctity of marital vows and their connection to spiritual and societal order. This traditional view contributed to a strong stigma against divorce, making it a rare occurrence. However, the ongoing changes in society and evolving needs led to the introduction of the Hindu Marriage Act of 1955 (hereinafter referred to as the Act).
The Act marked a significant shift by legally recognizing the possibility of separation between the married couple by a decree of divorce and providing a structured process for it. The Act was passed to address the realities of modern life problems in relation to marriage while still respecting cultural traditions and reflecting the dynamic nature of societal norms and legal frameworks. The introduction of the provisions relating to divorce in the Act was a crucial step towards organising legal practices with present-day social needs while trying to navigate the thin line of balance between tradition and change. Under the Act, Section 13 is amongst the most revolutionary provisions. Since its introduction in 1955, it has been amended; instead, it has been liberalised several times to adapt to the evolving needs of society. From divorce under exceptional circumstances to divorce by consent, Indian society is now leading towards divorce on irretrievable breakdown of the marriage.
Concept of divorce
The term “divorce” originates from the Latin word divortium, which means “to turn aside” or “to separate.” It refers to the legal termination of a marital bond. Although divorce is not specifically defined in statutory provisions, it can be described as the legal dissolution of the marital ties established by marriage. All legal systems recognize that public policy, moral standards, and societal interests necessitate that marital relations be protected with comprehensive safeguards, and that dissolution of marriage should only occur in the manner and for the reasons specified by law. A divorce is also a seven lettered word that separates the united couple at their own wish with their own consent. Thus, divorce can be considered a means to break a marriage that happens not just between two individuals but also between two families. The various reforms that took place in relation to divorce are as follows:
Traditional Hindu concepts of divorce
The law of divorce was not recognised under the uncodified Hindu law. The traditional Hindu marriage law did not recognise divorce. It was so because marriage was considered a permanent and unbreakable bond between husband and wife. Manu believed that a wife could not be separated from her husband through sale or abandonment, emphasising the notion that the marital relationship was meant to be eternal and unbreakable. Among the Hindus, marriage is considered a sacramental union, i.e., an invulnerable, forever, indefeasible, and indestructible union. The concept of divorce was out of question under ancient Hindu law, while customary divorce was recognised in some Hindu communities and tribes. Kautilya’s Arthashastra permits divorce on the grounds of mutual animosity and with the consent of both parties.
Concept of divorce during the British regime
Early British efforts to seek to alleviate perceived social abuses and evils among Hindus focused on assisting widows to be able to remarry rather than helping individuals to break marriages. As public relations were negative, the British realised that it would be dangerous to interfere with Hindu marriage and divorce laws. The British hesitated to amend the existing laws out of concern for potential public backlash, and as a result, no divorce reforms were introduced for Hindus during British rule.
Modernist divorce reform in independent India
The post-colonial Hindu elite, which eventually gave the new divorce law to all Hindus, was deeply concerned to maintain an aura of progressiveness and modernity. In discussions and literature concerning reforms to Hindu divorce law, the primary focus has been on the introduction of statutory divorce for all Hindus through the Act . For the first time, Section 13 of the Act officially made divorce available to all Hindus in India. There have been multiple amendments to Section 13 of the Act to include additional grounds for divorce. As a result, Section 13 has shown an important and transformative change in Hindu marriage laws, thereby establishing specific conditions under which divorce can be granted.
Divorce theories
The various types of divorce theories are as follows:
Divorce at Will theory
According to this type of theory, a person may choose to divorce their spouse at their own free will. However, this concept is not recognized under Hindu law or the Act. In contrast, Muslim law does acknowledge this approach, permitting a husband to divorce his wife at his discretion without requiring consultation.
Offence or Guilt or Fault theory
The fault theory of divorce is also known as the offence theory or guilt theory. It provides that dissolution of marriage through divorce can take place in case one party commits a ‘matrimonial offence’ against the other party, who is deemed innocent. Offence theory shows a clear comparison between the guilty and innocent parties, with only the innocent party being eligible to seek a divorce. In case both the husband and wife are at fault, neither of them could take recourse under this theory.
‘Matrimonial offences’ recognised under the Act are as follows :
Desertion: Desertion is the negation of living together, which is the essence of matrimony; it is unjustifiable; it constitutes a ground for matrimonial relief. The essence of the dissertation lies in the forsaking or abandonment of one of the spouses by the other. It is a total repudiation of the obligations of marriage. Divorce may be granted if the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.
Cruelty: To constitute cruelty in the matrimonial law, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner cannot be reasonably expected to live with the other spouse. It must be something more than the “ordinary wear and tear of married life.”
Rape: Rape is defined as sexual intercourse or other forms of sexual penetration carried out by a perpetrator without the victim’s consent. If the husband has been found guilty of the offence of rape, it constitutes a matrimonial offence.
Sodomy: The husband has since the solemnisation of marriage been guilty of sodomy. Sodomy is the offence of forcing another person to perform oral or anal sex.
Bestiality: In case the husband has been found guilty of bestiality, it constitutes a matrimonial offence. Bestiality is the offence of making sexual relations between a human being and a lower animal.
Failing to follow the court’s order for providing maintenance to wife: In a suit under Section 18 of the Hindu Adoption and Maintenance Act, 1956 or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, a decree or order has been passed against the husband awarding maintenance to wife, and since the passing of such a decree or order, cohabitation between the parties has not been resumed for one year or upwards.
Getting married to someone who does not come under the legal age to get married: The wife’s marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she repudiated the marriage after attaining the age but before attaining the age of eighteen years.
Based on the aforementioned matrimonial offences, it can be concluded that a personal injury to the marital relationship between spouses must be evident to fall under this theory. If the innocent partner forgives the wrongdoing of the guilty partner, a divorce cannot be granted in such a case.
Frustration of marriage theory
In the absence of any matrimonial offence if the marriage is frustrated, it is when one of the spouses is suffering from any physical ailment, mental unsoundness of mind, or change of religion, or has renounced the world or has not been known for a very long period. In this case, the other spouse has the right to put an end to the marriage by getting divorce. This theory has been followed by the Act as follows:
Incurably of unsound mind:Section 13(1)(iii) provides that the petitioner has to establish that the respondent has been incurably of unsound mind or has been suffering continuously from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Venereal disease in a communicable form:Section 13(1)(v) provides for venereal disease in a communicable form. A “communicable disease” is one that passes from one person to another through touch, using each other’s objects and also through intimate physical relationships. In order to succeed on this ground, the petitioner must establish, along with medical evidence, that the venereal disease that the respondent is suffering from is communicable.
Renouncing the world by entering any religious order:Section 13(1)(vi) has been made a ground of dissolution of marriage by a decree of divorce for the husband or wife if the other party to the marriage has renounced the world. In a petition for divorce under this clause, the petitioner has to satisfy firstly that the respondent has entered any religious order and secondly that he has renounced the world.
Mutual consent theory
This type of divorce theory is different from other theories of divorce. Divorce by mutual consent means that the case is not like usual ones, wherein one party petitions against the other party for divorce and the other party resists the same. Here, both parties file a joint petition with the court for divorce between them. They have an intent to get rid of each other and they part amicably for mutual good. If a divorce is not granted, their lives would be severely impacted, leading to moral decline.
There are unproven objections against this type of divorce that the consent of the unwilling party might be obtained by force, fraud, or some other tactic, and this is a divorce by collusion. While collusion involves consent, not every instance of consent amounts to collusion. Collusion refers to a secret agreement done between two or more persons that results in achieving a fraudulent outcome. This secret agreement is done to accomplish a lawful goal through a mode of deception. Collusion differs from compulsion because, in the latter, one party imposes their will on another.
Divorce by mutual consent was added by the Marriage Act of 1976. This amendment has brought about a shift from the traditional practices of Hindu marriage as an unbreakable bond, as outlined in the Smritis, to a more consensual union under the Act. This theory has faced criticism for potentially encouraging immorality, as it might lead to premature divorces. It is argued by the critics that divorce by mutual consent encourages parties to bring their marriage to an end over relatively minor disagreements.
Irretrievable breakdown of marriage theory
Marriage, as mentioned a number of times, is a lifelong bond between husband and wife, but there are instances when the relationship may worsen to the point where separation is required. The theory of irretrievable breakdown of marriage situations arises when the marital relationship between the spouses has come to an end because of circumstances that make reconciliation unlikely. At this point, it becomes impossible for the husband and wife to continue to live together. When a marriage has collapsed to the level that there are no chances of repairing the marriage, it should be brought to an end without looking into the causes of the breakdown or assigning blame to either of the parties or both of them. In these situations, the need to separate the spouses takes precedence over the traditional values of love, affection, and loyalty that ideally should exist between spouses. The principle underlying the irretrievable breakdown theory of marriage is that if one party no longer wishes to remain in the marriage, it should be dissolved. The aim is to end the relationship with maximum fairness and minimal bitterness, pain, and humiliation. The Hon’ble Kerala High Court in the case of A. Yousuf Rawther vs. Sowramma (1971) stated in the context of this theory that “while there is no rose which has no thorns but if what you hold is all thorns and no rose, better throw it away. The ground for divorce is not conjugal guilt but breakdown of marriage.”
In some countries, additional grounds such as “incompatibility of temperament” and “profound and lasting disruption” have been introduced to support divorce claims based on the breakdown theory. The court has the responsibility to check whether a marriage has actually broken down or not. Some of the cases involve the legislature setting certain criterias for assessing the breakdown of a marriage. If, in the opinion of the court, those criteria are met, then a divorce can be granted. For instance, Section 13(1A)(i) of the Act requires the petitioner to show that they have been living separately from the respondent for at least one year or more after a decree for judicial separation or restitution of conjugal rights in a proceeding involving both parties.
Merits of Irretrievable breakdown of marriage theory
If the individuals, tied within the matrimonial bond, feel that the marriage is not working out, then mutually, it may give the right to both of them to stay and live life separately and happily without any botheration on either part. As there is no reasonable probability of staying together, it gives both of them the opportunity to start their lives as per their own wishes, both independently and separately.
Demerits of Irretrievable breakdown of marriage theory
Irretrievable breakdown of the marriage may become an excuse where the married couples may always feel that little arguments are unreasonable as a result of which there is no probability of them staying together. Therefore, in my opinion, the process of divorce following the irretrievable breakdown of marriage theory is not justified.
It may also result from sudden arbitrary unreasonable decisions.
It sometimes happens based on temporary emotions such as anger, humiliation, etc. which a couple may go through during the heat of the argument.
It fosters no communication procedure between the partners.
It is not just the breakdown of marriage; it is also the wreckage of two united families at the time of marriage.
If children are born out of that marriage when the parents ‘now’ think that there is no reasonable probability of staying together, such broken families could be a matter of stress for the child born out of the marriage as well.
Types of divorce recognised under the Act
Statutory divorce
The above-mentioned theories of divorce are recognized in contemporary Hindu law, allowing divorce to be pursued under any of the grounds. Initially, the Act established divorce on the basis of fault theory, which specified nine grounds for either of the spouses under Section 13(1) and two additional grounds for the wife under Section 13(2) for a divorce to take place. In the year 1964, Section 13(1A) was further added with two more grounds for divorce. The 1976 amendment further expanded the grounds by including two additional fault-based grounds for wives and introducing Section 13B, which allows for divorce by mutual consent.
Under the Act of 1955, the grounds for divorce included adultery, cruelty, desertion, conversion, insanity, venereal disease, and renunciation, as well as the presumption of death. For wives, additional grounds included the husband’s multiple marriages or if he committed the offence of rape, sodomy, or bestiality after marriage. Notably, on August 5, 2021, the Hon’ble Kerala High Court in the case of XXX vs. XXX (2021), recognized marital rape as a valid ground for divorce, despite it not being criminalized in India.
In the case of a statutory divorce taking place between a couple by mutual consent, both parties must jointly file a petition in the Family Court. It must be stated in the petition that they have either been living separately for at least a period of one year or have mutually agreed to dissolve the marriage. In that case, the court shall review the petition and check the supporting documents. The court may also make an attempt at mediation between the couple. If efforts at reconciliation do not turn out to be successful, the court will continue with the process of divorce without any delay.
Following the court’s review of the petition, the parties’ statements are recorded under oath, and the first motion is granted. The parties to the marriage then have a six-month time period to file the subsequent motion, with a maximum filing period of eighteen months from the date of the initial petition for divorce. Once both parties are prepared, hearings can commence. In the case of Amardeep Singh vs. Harveen Kaur(2017), the Hon’ble Supreme Court held that the six-month waiting period for divorce by mutual consent is not a mandate. In cases relating to divorce by mutual consent, both the husband and wife typically reach an agreement on matters such as divorce settlements, child custody, and property, provided they have a comprehensive understanding before finalising the dissolution of the marriage.
Customary divorce
In the very first place, Hindu law traditionally did not recognize the concept of divorce. It was only accepted by custom in certain communities, and courts acknowledged these customs as long as they did not oppose public policy. The intent of the Act is not to override customs validated by its provisions. It is permissible in certain cases for the spouses to not appear in court to obtain a divorce because of the existing customary grounds.
Section 29(2) of the Act protects customary divorce, stating that the Act’s provisions do not affect any rights granted by custom or any special law related to the dissolution of a Hindu marriage. In the case of Sanjana Kumari vs. Vijay Kumar(2023), the Hon’ble Supreme Court of India held that a Hindu marriage can be dissolved through a customary divorce deed if the customary right to do so is proven in the court of law. A specific claim regarding the existence of such a customary right must be presented to the court and supported by sufficient and appropriate evidence. Determining whether the parties are governed by a custom allowing divorce without invoking Sections 11 and 13 of the Act is a matter of fact that must be pleaded clearly before the judges and validated with convincing evidence. Such cases are generally tried by courts with civil jurisdiction. The burden of proving the customary divorce rests on the party relying on such a customary divorce.
Before the Act of 1955, Hindus could obtain a divorce only if a community-specific custom allowed it. The said Act acknowledged customary divorces and specified that its provisions do not apply to them. The following provisions of the Act do not pertain to customary divorces:
Void marriages: A void marriage is one that is considered invalid or illegitimate from the outset, known as void ab initio. A decree of void marriage is essentially a judicial acknowledgment of an existing fact. According to Section 11 of the Act, a marriage will be deemed null and void by a decree of nullity if it contravenes the conditions outlined in Sections 5 (i), (iv), and (v) of the Act.
Remarriage of a divorced person:Section 15 of the Act addresses the remarriage of individuals who have been divorced. It specifies that a person who has received a divorce decree can remarry once the decree is finalised either after the appeal period has ended or after any appeal has been dismissed.
Decree in proceedings:Section 23 of the Act specifies that a marriage cannot be declared void or voidable due to any defects in consent unless it is proven that such consent was obtained through force, fraud, or undue influence. In other words, if both parties have willingly given their consent, the marriage is considered valid and cannot be challenged on the grounds of any consent-related defects.
Maintenance pendente lite and expenses of proceedings:Section 24 of the Act addresses the provision of temporary financial support to a dependent spouse during ongoing legal proceedings. In other words, it ensures that the wife or husband receives necessary living expenses and financial aid while their legal case is still being heard. This support is intended to help the dependent spouse cover their basic needs throughout the litigation process.
Permanent alimony and maintenance: Section 25 of the Act authorises the court to award permanent alimony and maintenance to either spouse. The court can determine the amount of alimony or maintenance either at the time of issuing a decree or at any point thereafter.
Custody of children:Section 26 of the Act grants the court the authority to issue orders or make arrangements regarding the custody, maintenance, and education of children either during the ongoing proceedings or after a decree has been issued in cases involving the children’s parents. In cases where no such proceedings are taking place, only the Guardian Courts have the power to make these decisions.
Historically, many lower-caste Hindus practised divorce through custom, viewing the sacramental aspect of marriage as a formality rather than a substantive reality. However, there is no universal Hindu tradition of divorce, and practices vary on the basis of different castes and regions. When seeking a customary divorce, it must be proven that the parties are bound to fulfil such a tradition. Customary divorces can still be pursued as before the Act of 1955 through village panchayats, caste panchayats, private agreements, or written declarations like a tyaga-patra. A custom allowing one partner to unilaterally divorce the other is invalid if it is deemed unreasonable and contrary to public policy. Customary divorce constitutes an exception to general divorce laws. But it is necessary that it be substantiated and proven. Customs recognize various forms of divorce, which can occur with mutual consent or, in some cases, for questionable reasons by one party. The range of accepted divorce types is complex and diverse.
In Yamanji H. Jadhav vs. Nirmala(2002), the Hon’ble Supreme Court ruled that a customary divorce is valid only if it is allowed by the relevant custom or if the divorce is a recognized practice within that tradition. Once the existence of such a custom is demonstrated, the parties may file a declaratory action in court to affirm that their divorce deed is lawful, valid, and appropriate.
Reasons for divorce in society (A sociological perspective)
The rate of divorce in Indian society has grown to a large extent. There are a number of reasons for divorce and the dynamic approach of society at the same time could be witnessed regarding these stereotypical concepts of Indian society. The main reasons for divorce are as follows:
Independence of Indian women
Previously, women followed the norms of the given society without questioning it with their heads bowed down in front of the society for the sake of the so-called ‘family respect and status in the society’. However, with increasing modernization, industrialization, and urbanisation women started getting educated and also became more aware of their social happenings. Thus, understanding the need to stand up for themselves, women started earning their own living and, therefore, became independent. They started raising their voices against the wrongs committed by their in-laws and husbands and started to live happily and independently. As a result, the women were not afraid to take a stand for themselves and to give divorce to their torturing husbands. Thus, the rate of divorce kept increasing.
Communication gap in marriages
Communication plays a very important role in marriages. Thus, when there is no proper communication between the two partners, misunderstandings and fights are bound to take place. Thus lack of communication also sometimes becomes a reason for divorce.
Cheating and affairs
A trust can never be built upon all over again once it has been broken. Thus, when a cheating partner breaks the trust of the loyal partner, it can never be restored again and as a result, divorce is bound to happen. Cheating and having an extramarital affair can destroy, demolish and doom a relationship that would have existed between both parties. In India, there are even penal provisions for cheating on a spouse.
Problems with in-laws
It becomes very difficult for a girl who leaves her home and comes to a new family and later finds out that her in-laws are not cooperating, torturing her and making her life impossible to live. Instances are there as a result, the Indian Penal Code, 1860 also has a statutory provision relating to it such as Section 498A which states about the ‘husband or relative of the husband of a woman subjecting her to cruelty’. At the same time, there are also many instances of forcing the wife to bring money from her father’s home, and when she denies it or is unable to bring such huge financial amounts, the in-laws torture her to death. For this, we also have the penal provisions of Section 304B, which provide for dowry deaths.
It should also be mentioned that there are many instances of the wrong use of Section 498A; thus, in two such real cases, when there is actual torture and misuse of the law, divorce is bound to take place.
Procreative problems in marriage
Indian societies are designed in such a way that society not only persuades and influences the couple to a great extent but it also decides when a couple should give birth to a child. This creates a lot of stress and if such problems are not sorted out between the partners, it may also become a ground for divorce.
Purpose of the law of divorce
In traditional Indian culture, divorce was not a recognized concept. With the changes in society, the purpose of divorce has evolved to both punish the guilty party and protect the innocent or loyal spouse within the marriage. The true purpose for getting a couple married is to create a harmonious and supportive partnership between the two individuals. If this objective cannot be fulfilled by the concept of marriage; maintaining the relationship of marriage is baseless. Therefore, the concept of divorce developed to enable individuals, previously bound by marital ties, to pursue a fulfilling, independent, and separate life.
Important provisions relating to divorce under the Act of 1955
With the evolution of Indian society, the concept of divorce got formalised under the Act. Consequently, several sections under the said Act provide provisions for divorce, including:
Valid conditions for a Hindu marriage
The valid conditions for a marriage to be solemnised between any two Hindus are provided under Section 5 of the Act. Thus, it could also be interpreted that if one of these conditions is contravened or not fulfilled, then it could also be a ground for divorce. These conditions are as follows:
At the time the marriage is solemnised, neither party should have a living spouse.;
At the time of marriage, neither party:
Is capable of providing valid consent due to unsoundness of mind;
Even if able to provide valid consent, suffers from a mental illness so severe that marriage and procreation are entirely impossible;
Has experienced persistent episodes of insanity.
The groom must be minimum 21 years of age, and the bride must be minimum 18 years of age at the time of marriage;
The parties should not be within degrees of prohibited relationships unless a custom or usage applicable to both allows for their marriage;
The parties should not be ‘sapindas’ of each other unless a custom or tradition that applies to both permits their marriage.
Restitution of conjugal rights
The term “conjugal rights” refers to each spouse’s right to stay in companionship and marital intimacy with each other. “Restitution of conjugal rights,” on the other hand, denotes the restoration of these rights that the parties once enjoyed. Section 9 of the Act formally recognizes the right to companionship within marriage. If one spouse leaves the other spouse without a justifiable reason, the aggrieved party may seek a court decree for the restitution of conjugal rights. This provision is adapted from the English law. It is the only affirmative remedy available under the Act because the other available remedies may undermine or disrupt the marriage. Restitution of conjugal rights can be granted if the following conditions are fulfilled:
The respondent is now living without the petitioner.
The departure of the respondent occurred without a valid reason.
The court is satisfied that the claims of the petitioner are valid.
There exists no legal grounds to deny the application for restitution of conjugal rights.
According to Section 9, the burden of proving the justification or reasonable excuse for the withdrawal lies upon the party against whom the accusation is made. This section stipulates that once withdrawal from the side of the petitioner is established, the withdrawing spouse must give reasonable justification for their actions.
Judicial separation
“Judicial separation” can be described as a legal process in which a married couple is officially separated but still holds the status of being legally married. This concept is described in Section 10 of the Act. Either spouse, whether the marriage occurred before or after the Act’s commencement, can file a petition for judicial separation on any of the grounds specified in subsection (1) of Section 13, and, for the wife, also on any grounds listed in subsection (2) of Section 13.
Section 10(2) provides that once a decree for judicial separation is allowed by the court, the petitioner is no longer under an obligation to live with the respondent together. However, the court has the authority to dismiss or revoke the decree if, upon reviewing the petitioner’s application and verifying the statements, it finds it just and reasonable to do so.
Divorce
Divorce is the legal termination of a marriage. Divorce can be obtained by submitting a petition to a court having appropriate jurisdiction. Section 13(1) of the Act outlines the grounds for divorce, which are applicable to both spouses. When these conditions are fulfilled, divorce becomes inevitable. The marriage remains legally valid until the court grants a decree of divorce, and neither party is allowed to remarry until this divorce decree is granted. Section 13 also applies to marriages conducted before the Act came into effect. Either spouse may file for divorce based on one of the following grounds:
Grounds for divorce
Adultery
Adultery is defined under Section 13(1)(i) of the Act. It stipulates that if a married person engages in sexual intercourse with someone other than their spouse after the commencement of a marital relationship, it is considered adultery. Historically, adultery was also a criminal offence in India under Section 497 of the Indian Penal Code, 1860. This section criminalised engaging in sexual intercourse with someone who is married and whom the individual knows or reasonably believes to be someone else’s wife, without the husband’s consent. The penalty for this offence included imprisonment for up to a period of five years, a fine, or both, with the wife not being deemed an accomplice. Additionally, Section 198(2) of the Code of Criminal Procedure, 1973, addressed the prosecution of offences related to marriage. However, in the case of Joseph Shine vs. Union of India(2018), the Hon’ble Supreme Court of India declared Section 497 of the Indian Penal Code and Section 198(2) of the Code of Criminal Procedure unconstitutional, leading to their invalidation.
Cruelty
Cruelty, in simple terms, means torturing or unreasonable brutal behaviour against one. Section 13(1)(ia) of the Act of 1955 states that even after solemnization of marriage, treating the petitioner with cruelty can also be considered as a ground for divorce. Cruelty is also a criminal offence and has statutory provisions for the same. Sections 85 and 86 of the Bharatiya Nyaya Sanhita, 2023 states about cruelty by the husband or the relative of the husband upon the wife. The person committing cruelty shall be punished with imprisonment for a term that shall extend for 3 years, or with fine or both. The explanation to Section 85 of the Bharatiya Nyaya Sanhita, 2023 states that any deliberate act likely to drive a woman to commit suicide is considered cruelty. Section 86 of the Bharatiya Nyaya Sanhita, 2023 defines cruelty as:
Any intentional behavior likely to compel a woman to commit suicide or cause significant harm or danger to her life, physical health, or mental well-being; or
Harassment caused to a woman with the intent of forcing her or her relatives to fulfil unlawful demands for property or valuable assets, or resulting from the failure to meet such demands.
In the landmark case of Shobha Rani vs. Madhukar Reddi(1988), the Hon’ble Supreme Court noted that the term “cruelty” is not expressly defined anywhere in the Act. It is used to describe conduct or behaviour related to matrimonial duties or obligations. Cruelty as a ground for divorce was introduced by the Marriage Laws (Amendment) Act, 1976. Before this amendment, cruelty was only a ground for judicial separation, except in the State of Uttar Pradesh. Section 13(1)(ia) provides that the cruelty caused either to the husband or to the wife must impact the physical or mental health. It is the discretion of the courts to decide, based on the circumstances of each case, to determine whether the behaviour constitutes cruelty or not.
The wife’s behaviour in the case of S. Hanumath Rao vs. S. Ramani (1999) was not cordial at her matrimonial home and towards her husband. The Hon’ble Supreme Court in this case held that mental cruelty means when either party to a marriage causes mental pain, suffering or distress to such an extent that it severs the bond between the husband and wife and, as a result, it becomes impossible to live together.
In the case of Christine Lazarus Menezes vs. Mr. Lazarus Peter Menezes(2017), the Hon’ble Bombay High Court held that filing false cases under Section 498A of the Indian Penal Code, 1860, constitutes cruelty and can be a ground for filing divorce. The details of the case are as follows:
The appellant’s wife challenged the Family Court’s decision that had approved the respondent’s application for divorce. The Hon’ble Bombay High Court upheld the Family Court’s ruling, rejecting the appeal and choosing not to overturn the divorce granted on the grounds of “cruelty.”
The court observed that during proceedings, the wife admitted under oath to filing an FIR at the Kherwadi Police Station, Mumbai, against her husband under Sections 498A and 406 of the Indian Penal Code, 1860. She also admitted that she had filed the criminal complaint in an attempt to force her husband to return to their marital home;
Given these facts, the court noted that if the criminal complaint filed by the wife was not true and intended solely to coerce her husband back into their home, resulting in his arrest and a seven-day imprisonment, it would amount to cruelty by the wife towards her husband.
The provisions related to cruelty are also provided under Section 117 of the Bharatiya Sakshya Adhiniyam, 2023. It states that if it is established that a woman’s suicide was facilitated by her husband or his relatives, and if she took her life within seven years of marriage after having endured cruelty from her husband or his relatives, the court, considering all pertinent factors, may conclude that her suicide was abetted by them.
Desertion
In express terms, desertion refers to the act of abandoning a person. The fundamental concept of desertion is that one spouse has left the other, which is done against the will of the abandoned party and shows a complete abandonment of marital duties. Desertion can only be claimed if, after the marriage ceremonies, both parties acknowledged and fulfilled their mutual obligations, which fundamentally include cohabitation for the purpose of consummating the marriage. Cohabitation constitutes an essential element of a valid marriage, and desertion cannot be claimed by the abandoned party if no cohabitation has occurred between the couple. However, there are certain exceptions, such as cases involving mental or physical incapacity or other specific situations.
Desertion was initially a ground for only judicial separation under the Act, but it is now also a ground for divorce under Section 13(1)(ib) of the Act. According to Section 13(1)(ib), a divorce can only be granted if the petitioner has been deserted by the respondent for a continuous period of two years immediately preceding the petition. In Jyothi Pai vs. P.N. Pratap Kumar Rai(1987), the Karnataka High Court ruled that the burden of proving abandonment without reasonable cause lies on the petitioner. Similarly, inKanchan Sahu vs. Permananda Sahu(1999), the Orissa High Court determined that a husband could not claim desertion by his wife if he had maintained a mistress in the matrimonial home. Thus, under such circumstances, the wife can apply for divorce on the grounds of desertion.
Conversion
Conversion or apostasy as a ground for divorce is defined under Section 13(1)(ii) of the Act. It occurs when one spouse deliberately renounces their religion and adopts a different, distinct religion following the formal marriage ceremonies. Under this Act, conversion means adopting a major religion other than Hinduism. To use this ground for divorce, the petitioner must establish the following:
The other spouse has ceased to be a Hindu, and
The other spouse has done so by adopting a different religion.
This ground for divorce is available only to the spouse who has not converted. Allowing the converting spouse to seek divorce based on their own conversion would be akin to benefiting from their own wrongdoing or fault, as outlined in Section 23(1)(a) of the Act. The right under Section 13(1)(ii) is thus reserved for the non-converting spouse, who may choose either to divorce the converting spouse or to continue the marriage. Alternatively, if the non-converting spouse is the wife, she may seek separate residence and maintenance under Section 18 of the Hindu Adoption and Maintenance Act, 1956. A husband cannot successfully claim restitution of conjugal rights if the wife refuses to live with him. Furthermore, if the husband remarries after converting to another religion, such as Islam, he will face legal consequences, and his new marriage will not affect the legal rights of his existing Hindu spouse.
In Sarla Mudgal vs. Union of India (1995), the husband converted himself, adopted Islam and married another wife. The question arose in this case: whether, by conversion, the first marriage is annulled or becomes void and whether the husband is liable for the offence of bigamy. The Hon’ble Supreme Court held that the first marriage would subsist and the husband is liable for the offence of bigamy. An appeal was lodged by the husband and resolved together in the case of Lily Thomas vs. Union of India(2000). The petitioner, Sushmita Ghosh, submitted a petition to the Hon’ble Supreme Court, asserting that she had been married to Mr. M.C. Ghosh according to Hindu customs since 1984. However, in 1992, Mr. Ghosh sought a divorce by mutual consent, citing his conversion to Islam in order to marry Ms. Vinita Gupta, a divorcee with two children. Since the Hindu Marriage Act, 1955, does not permit a second marriage or bigamy, Mr. Ghosh provided a certificate of his conversion to Islam. The facts suggest that Mr. Ghosh’s conversion was solely for the purpose of entering into a second marriage, rather than a genuine adoption of the new faith. The Hon’ble Supreme Court observed that where a spouse contracts a second marriage while the first marriage is still subsisting, the spouse would be guilty of bigamy under Section 494 of the Indian Penal Code, 1860 (now Section 82 of the Bharatiya Nyaya Sanhita, 2023).
Unsoundness of mind
A person who cannot discern right from wrong or who is unable to give or withhold consent regarding events around them is not deemed competent to enter into matrimonial bonds. Unsoundness of mind, as a ground for divorce, is defined under Section 13(1)(iii). Before the amendment of 1976, “unsoundness of mind” for a period of one year was a ground for judicial separation, and for three years in the case of divorce. Now, after the said amendment, no prior period is prescribed. The expression “unsoundness of mind” includes all sorts of mental cases, including sub-normality and abnormality. To claim relief under this clause, the petitioner has to prove the following:
The respondent has been of an unsound mind;
That the same is incurable; and
The mental disorder is of such a nature and severity that the petitioner cannot reasonably be expected to live with the respondent.
Explanation to this clause provides the following:
The articulation “mental disorder” implies dysfunctional behaviour, captured or deficient advancement of the brain, psychopathic confusion or some other issue or incapacity of the brain, and incorporates schizophrenia;
Similarly, the articulation “psychopathic disorder” implies a tenacious issue or incapacity of the brain (regardless of whether including sub-typicality of insight) which brings about strangely forceful or genuinely irresponsible conduct lead with respect to the other, and whether it requires or is susceptible to clinical treatment. Thus when a person is suffering from such an unstable mental condition, he/ she can never perform their rights and duties in a marriage . It is also one of the most important grounds of divorce.
The Hon’ble Gujarat High Court ruledin the case of Ajitrai Shivprasad Mehta vs. Bai Vasumati(1969) that when seeking matrimonial relief on the grounds of unsoundness of mind, it must be proven beyond a reasonable doubt to fully satisfy the court.
In the case of Trimbak Narayan Bhagwat vs. Kumudini Trimbak Bhagwat(1967), the husband, during an episode of insanity, tried to strangle the wife’s brother and, on a separate occasion, her younger son in the wife’s presence. The Hon’ble Bombay High Court observed that the husband’s actions amounted to cruelty, even in the absence of any deliberate intent to be cruel. In a similar vein, the Hon’ble Supreme Court in Dr. N.G. Dastane vs. Mrs. S. Dastane(1975) dismissed the husband’s petition, finding no evidence of unsoundness of mind. Although the respondent had experienced some mental disorders before marriage, she had fully recovered by the time of marriage.
Venereal disease in a communicable form
Under Section 13(1)(v), a venereal disease, commonly known as sexually transmitted disease, can be grounds for divorce. If one spouse has a serious, incurable, and transmissible disease, the other spouse may file a petition for divorce. Diseases explicitly classified as venereal, such as AIDS, fall under this provision. In order to succeed on this ground, the petitioner must prove with medical evidence that the venereal disease that the respondent is suffering from is in a communicable form. In the case of Birendra Kumar vs. Hemlata Biswas(1921), divorce was granted to the husband because the wife had incurable syphilis, which she had before the marriage and did not disclose to the husband. Additionally, since the marriage had not been consummated, the Calcutta High Court ruled that annulment would be granted, despite there being only a slight chance of a cure.
Renunciation
Under Section 13(1)(vi), a person may seek a divorce if one spouse renounces worldly affairs by embracing a religious or other belief system. The individual renouncing the worldly affair reaches a state of self-actualisation, as described by Maslow. When a person chooses not to fulfil the responsibilities of marriage, relationships, and family, this can also be considered a valid ground for divorce. In the case of a divorce petition filed under this clause, it must be demonstrated that the respondent has joined a religious order, such as by moving to an ashram with the intention of living there permanently. Just by adopting the attire of a sanyasi, performing the duties of a pujari or mahant in a temple, or serving as a granthi in a gurudwara does not make a person a sanyasi and thus does not meet the criteria of the said clause. The Hon’ble Supreme Court, in Sital Das vs. Sant Ram & Ors. (1954), ruled that under Hindu law, renouncing worldly affairs and joining a religious order generally amounts to civil death. It is also important to provide quality evidence that all necessary ceremonies for entering the religious sect or order have been properly observed.
Presumption of death
Under Section 13(1)(vii) of the Act of 1955, it has been provided that if an individual has not been heard from by those who would have normally been aware of their whereabouts for a continuous period of seven years, they shall be presumed to be legally dead. This presumption is based on the belief that if the person were alive, they would likely have been in contact with friends or relatives. If the close relatives provide sworn evidence that the person has not been heard from in seven years, the individual is presumed to be dead, and a decree of divorce may be granted to the petitioner. Similarly, Section 111 of the Bharatiya Sakshya Adhiniyam, 2023 provides that if it is proven that no one who would normally know about the person has had any contact with them in seven years, the burden of proving that the person is still alive shifts to the claimant.
If an individual has not been seen or heard from by those who would normally be aware of their presence for a continuous period of seven years, they are legally presumed to be dead. This presumption provides grounds for divorce under Section 13(1)(vii) of the Act. The rationale behind this is that, if the individual were still alive, they would likely have made contact with their friends or relatives. When close relatives provide sworn testimony that the person has been missing for seven years, the individual is considered deceased, and the court may grant a decree of divorce in favour of the petitioner. According to Section 111 of the Bharatiya Sakshya Adhiniyam, 2023 if it is proven that no one who would typically have knowledge of the person has heard from them in seven years, the burden of proving that the person is alive shifts to the one claiming their survival.
It is important to note that in divorce petitions filed under clauses (vi) and (vii) of sub-section (1) of Section 13 of the Act, the respondent is not obligated to appear in court. In these cases, the court issues public notices in newspapers at the petitioner’s expense and allows a reasonable period for the respondent to respond.
Irretrievable breakdown grounds of marriage
Non-resumption of cohabitation after the decree of judicial separation
Section 13 (1A)(i) of the Act of 1955 provides that if, after the passing of the decree of judicial separation, cohabitation between the husband and wife has not been resumed for a period of one year or longer, divorce may be prayed for by either of the parties. Cohabitation means to dwell together as husband and wife. Mere going together with them on some occasions to temples or the places of friends does not amount to cohabitation. The decree of judicial separation might have been passed under Section 13(1A) at the discretion of the court in place of the decree of divorce prayed for by the petitioner.
Failure to adhere to the decree of restitution of conjugal rights
Section 13 (1A)(ii) of the Act provides that if, after the passing of the decree of restitution of conjugal rights, there has been no restitution of conjugal rights for a period of one year or more, either of the parties may file a petition for divorce on this ground. Restitution of conjugal rights means that cohabitation must be resumed by the parties. The husband and wife should act as husband and wife towards each other. A promise to join the conjugal relationship without in fact joining on a fake excuse of ill health is held to be non-restitution of conjugal rights. Sexual intercourse can be a significant or compelling evidence of cohabitation, yet there may be cohabitation even when no sexual intercourse has taken place for a reasonable cause.
The term “passing of a decree” in Sections 13(1A)(i) and (ii) of the Act of 1955 refers to the issuance of a judgement, not merely the formal drafting of the decree. In the case of Smt. Bimla Devi D/O Bakhtawar Singh vs. Singh Raj S/O Dasondhi Ram(1976), the Hon’ble Punjab and Haryana High Court held that if an appeal is made against the decree passed by the lower court under Section 9 of the Act and its execution is not stayed, the period of one year is calculated from the date the decree was passed. The ongoing appeal does not affect the one-year time frame. Section 13(1A) does not grant an absolute right but is subject to the limitations in Section 23(1)(a) of the Act. Its purpose is to extend the right to apply for divorce, not to guarantee that a divorce petition will be granted solely based on the absence of cohabitation or restitution for the required period.
Special grounds for divorce for wives
Section 13(2) of the Act of 1955 provides the following four additional grounds of dissolution of marriage, which are available only to a wife, in addition to the other grounds provided by Sections 13(1) and (1A):
Husband’s bigamy
Before the Act of 1955 came into force, Hindu law had no limit to the number of wives a man could have at a time. The Act of 1955 has made bigamy an offence under Sections 5 and 18. Section 13(2)(i) of the said Act says either of the co-wives of a man can seek divorce, provided that:
Both wives were married to him before the commencement of the said Act;
Both wives are alive when a petition for divorce is filed, and’
Both the above-mentioned marriages legally exist at the same time.
Under this section, it is essential to provide clear evidence of the prior marriage, as simply living together as husband and wife is insufficient. The burden of proof lies upon the wife to prove the validity of the previous marriage.
Rape, sodomy or bestiality
Section 13(2)(ii) of the Act stipulates that a wife can seek divorce on the grounds that, since the marriage, her husband has been guilty of rape, sodomy, or bestiality. These offences are also criminalised under the Bharatiya Nyaya Sanhita, 2023, which prescribes penalties for them. It is not required for the husband to have been convicted of these crimes in a criminal court; the key factor is that the offence occurred after the marriage of the petitioner. The three matrimonial offences are defined as follows:
Rape: Rape is non-consensual sexual intercourse by a man with a woman. Exception 2 of Section 63 of the Bharatiya Nyaya Sanhita, 2023 provides that a man can be punished for raping his own wife if she is under the age of eighteen years. In such cases of marital rape, the wife may file a petition for divorce on the grounds of rape.
Sodomy: Sodomy is defined as an anal intercourse between a man and his wife, another woman, or another man. The consent of the victim or age is not a relevant criteria to be determined in these cases to convict the accused.
Bestiality: Bestiality involves sexual intercourse with an animal and is classified as an unnatural offense.
Non-cohabitation after maintenance order
Section 13(2)(iii) of the Act of 1955 states that if a decree or order has been made requiring the husband to provide maintenance to the wife, and
she has been living separately; and
cohabitation has not resumed for a year or more since the decree or order, the wife is entitled to file a petition for divorce on these grounds.
A decree or order of separate residence and maintenance can be obtained, under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 and under Section 144 of the Bharatiya Nagrik Suraksha Sanhita, 2023. The law therefore gives such a wife, who obtains a decree or order, a right to seek divorce if her husband does not resume cohabitation within one year from the date of decree or order.
Where a decree under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or an order under Section 144 of the Bharatiya Nagrik Suraksha Sanhita, 2023 is passed in favour of the wife, it is the husband’s duty to pay maintenance to her, and he must resume cohabitation within one year. If the husband fails to do so, the wife can seek divorce. If the husband offers cohabitation and the wife does not respond, she is within her rights; to compel her to respond is to defeat the statutory provisions that allow her to live separately without losing maintenance.
Repudiation of marriage (option of puberty)
Section 13(2)(iv) of the said Act confers a right on girls who are married before attaining the age of fifteen years, a right of repudiation. Consummation of marriage is immaterial here. Under this clause, a wife can get divorced if:
At the time of her marriage, she was below the age of fifteen years; and
After that, but before attaining the age of eighteen years, she repudiated the marriage.
No procedure is laid down under this section or the Act for repudiation of marriage. The fact of repudiation has to be proved, therefore, by the wife. This clause only gives a right of repudiation, as therein mentioned but the petition for dissolution of marriage on this ground is maintainable by her after completing eighteen years of age. This clause was added by the Marriage Law (Amendment) Act of 1976. There was no such right prior to the amendment. Thus, if she has exercised this option to repudiate her marriage, she can file a petition for divorce on this ground. The Act of 1955 indirectly accepts that a minor’s marriage is not void (though penal) because, if it were void, the question of allowing a divorce should not arise.
Alternative reliefs in divorce proceedings
Under Sections 13(1)(ii), (vi), and (vii) of the Act of 1955, the petitioner has the option to seek either judicial separation or divorce. If the petitioner chooses to file a divorce on these grounds, the court must grant it after verifying the claims with sufficient and appropriate evidence. The court may consider granting judicial separation as an alternative relief only if the respondent has not converted to a different religion, has not joined a religious order, or has not been known for a period of seven years or more.
The grounds for divorce and mutual separation are almost the same. Therefore they could use its discretion for not passing a decree for divorce straight away even if the divorce proceeding had been initiated under Section 13(A) of the Act. Instead, the court may pass a decree for judicial separation. Therefore, the law always keeps hope and tries to make the last attempt to bring the parties back together by solving the disputes between them. However, there can be no alternate relief or attempt by the court for the parties if the proceedings of divorce are being made on the grounds of conversion, renunciation or the belief of being dead as the other party didn’t return for seven years.
In the case of Balveer Singh vs. Harjeet Kaur (2017), the Hon’ble Uttarakhand High Court held that the principle of res judicata does not apply to subsequent suits filed under Section 13 of the Act of 1955. The details of the case are as follows:
The appellant filed a petition for divorce under Section 13A of the Act of 1955 to seek the dissolution of marriage. The main issue for the High Court was whether this petition would be restricted by Section 11 of the Code of Civil Procedure, 1908, considering the fact that the proceedings under Section 9 of the Act of 1955 (for restitution of conjugal rights) had already been resolved. It is provided under Section 11 of the Code of Civil Procedure, 1908, that no court adjudicates any suit or issue that has already been directly and substantially decided in a previous suit;
The High Court noted the following points while addressing this issue:
Section 9 of the Act serves a different purpose. It addresses cases where a married couple is unjustly withdrawing from fulfilling marital duties, and the relief provided is intended to encourage reconciliation and resumption of marital obligations;
Sections 9 and 13-A of the Act cater to different circumstances. Section 9 aims to restore marital relationships, while Section 13A deals with the legal dissolution of marriage;
The High Court concluded that Section 11 of the Code of Civil Procedure does not bar the filing of a subsequent suit under either Section 9 or Section 13A of the Act of 1955;
If Section 9 proceedings are either declared or dismissed, it does not preclude a party from pursuing a petition for dissolution of marriage under Section 13-A of the Act at a later stage.
Divorce by mutual consent
Section 13B of the Act of 1955 is similar to Section 28 of the Special Marriage Act, 1954. This provision was inserted by the Marriage Law (Amendment) Act, 1976. It is retrospective as well as prospective from the commencement. Hence, parties to a marriage, whether solemnised before or after the amending Act, can avail themselves of this provision. The intent of this provision is to enable couples to end their marriage by mutual consent if it has irreparably broken down and to support their rehabilitation through various available options. The amendment was grounded in the view that compelling unwilling partners to stay married serves no constructive purpose. The cooling-off period was intended to prevent hasty decisions when there might still be a chance for reconciliation. Its aim was not to enforce a futile marriage or to extend the parties’ suffering when reconciliation is impossible. Although efforts should be made to preserve a marriage, if reconciliation seems unlikely and there are new opportunities for rehabilitation, the court should not be powerless to provide the parties with a more favourable alternative.
Essentials of Section 13B of the Act of 1955
Section 13B(1) requires that a petition for divorce by mutual consent be submitted jointly by both parties. Similarly, Section 13B(2) states that both parties to the suit must jointly request the court set a date for a hearing on the divorce petition. The following additional requirements must also be met:
The parties must have lived separately for at least an year;
They must have been unable to reconcile and cohabit together;
They must have mutually agreed to dissolve the marriage;
A minimum period of six months must have passed from the date of filing the petition.
They must jointly request the court issue a decree before the expiry of eighteen months from the date of filing the petition.
The divorce must be sought with the mutual consent of both parties to the suit. It must be free from coercion, fraud, or undue influence.
Ground rests on three facts
Section 13B(1) of the Act stipulates that a petition for the dissolution of marriage by a decree of divorce may be filed jointly by both parties to the marriage in the District Court, based on the following grounds:
Living separately for a period of one year: The parties have been “living separately” for a period of one year or immediately preceding the presentation of the petition. If they had lived separately for a year or more at some time in their life but not immediately before the petition, then this ground is not made out. It is required that, just prior to filing the petition, the parties have been living separately. In this context, “living separately” means “not residing together as husband and wife.” The key factor is the lack of intention to fulfil marital obligations, and their separation reflects this mental attitude. Ultimately, it is their mutual attitude towards each other that determines whether they are living together or apart as life partners.
The parties have not been able to live together: The disability in living together may be due to some internal or subjective reason. It may be that they do not like each other or either of them likes or both of them like some other person or persons. Maybe their philosophy of life, or socio-political views, or habits and ways of life, etc. do not agree with each other or maybe because of their physical incapacity to enjoy their married life or their different preoccupations, they do not want to remain in wedlock. The substance of this condition is that their marriage is broken down and it would not be possible to reconcile themselves.
Mutually agreed to dissolve the marriage: The parties have mutually agreed that their marriage should be dissolved. Section 23(1)(bb) of the said Act provides that their mutual consent to this effect must not be obtained by force, fraud or undue influence. The same may proceed from one party to the other or from a third party to both parties.
Waiting period for consideration of petition
Section 13B(2) of the Act of 1955 provides that the court will pay no heed to such a petition for six months. This is a compulsory provision. This is for the purpose of giving time to the parties to rethink this drastic step. The parties must file a joint motion not earlier than six months and no later than eighteen months after the divorce petition is filed. This motion allows the court to proceed with the case to verify the validity of the petitioner’s claim and to ensure that consent was not obtained through coercion, fraud, or undue influence. The court may conduct inquiries, such as hearings and examinations of the parties, to verify the accuracy of the petitioner’s statements. If the court is of the opinion that the consent was given freely and that the parties have agreed mutually to dissolve the marriage, it is under an obligation to grant a decree of divorce.
After six months, the court will not take any action on the petition unless the parties actively move the court to proceed. The motion must be filed jointly by both parties; if only one party submits it, the mutual nature of the consent to divorce may appear questionable.
A Constitution Bench of the Hon’ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur(2017) has ruled that it may exercise its exceptional powers under Article 142 of the Constitution of India to waive the standard six to eighteen months waiting period usually required for a divorce by mutual consent under Section 13B of the Act.
The discretion to waive the waiting period is guided by principles of justice, especially when reconciliation seems impossible, the parties have been separated for a significant duration, or the litigation has exceeded the time specified in Section 13B(2). The court should consider the following factors:
The duration of the marriage;
The time duration since the litigation is pending;
The time duration since the parties have been living separately;
Whether there are any other proceedings between the parties;
Whether the parties have participated in mediation or conciliation proceedings;
Whether the parties have reached a settlement to address issues such as alimony, child custody, or any other pending matters.
The court also held that for the waiting period to be waived off, it must be confirmed that the parties to the marriage have been living separately for longer than the prescribed statutory period, that all mediation and reconciliation attempts have been exhausted, and that reconciliation is no longer feasible. Additionally, the court must be convinced that extending the waiting period would only prolong the suffering of both parties.
Procedure for divorce under mutual consent
Steps
Procedure for divorce under mutual consent
Step 1 First, the petition for divorce has to be filed.
Initially, a joint petition for mutual divorce is filed by both parties in the family court. This petition states that they have either been unable to live together and have mutually agreed to end the marriage or have been living separately for a period of one year or more. The petition must be signed by both parties.
Step 2Secondly, court appearance and examination of the documents.
Both parties must appear in the family court after filing the petition. They are represented by their legal counsels. The court will review the petition and inspect the documents carefully. If the parties do not resolve the differences, the court will continue the divorce proceedings and may take steps it considers appropriate.
Step 3Thirdly, the order for recording the statements on oath.
After the court reviews the petition, the statements of both parties are recorded under oath.
Step 4After the first motion is granted, a waiting period of six months is required before the second motion can be filed.
Once the statements of both parties are recorded, the court issues the first motion. Following this, both parties are given a time duration of six-months to remain separated before they can file the second motion. The maximum time allowed for filing the subsequent motion extends up to eighteen months from the date the divorce petition was originally filed in the Family Court.
Step 5Second motion and final hearing
Once the parties decide to proceed and appear for the subsequent motion, they can continue with the final hearings.This incorporates parties showing up and recording of explanations and statements under the Family Court. Recently, the Supreme Court has held that the 6 months time period that is given to the parties can be turned down at the choice of the court. Consequently, the parties who have really settled their disparities, including divorce settlement, child custody or some other pending issues between the gatherings, tend to postpone them this half year. Even if the court feels that the period of 6 months will increase their suffering, it can waive the same.
Step 6Decree of divorce
In a mutual divorce, the two parties are more likely to give assent and there will not be any differences in opinions with disputes in regards to a divorce settlement, guardianship of a child, maintenance, property, and so on. Along these lines, there should be finished understanding between the spouses for an official choice on the dissolution of a marriage.
Section 14
Section 14(1) of the Act states that no petition of divorce could be filed within the first year of marriage. A time period of one year is the gap given by the law itself in order to solve, sort, understand and communicate problems with each other. Thus, no court shall be competent to entertain a petition for divorce unless a time gap of one year has elapsed.
However, upon receiving an application in accordance with the rules set by the High Court, the court may permit the petition to be filed before the one-year period in cases of exceptional hardship for the petitioner or extraordinary misconduct by the respondent. If the court discovers any misrepresentation or concealment of facts at the time of hearing, it may dismiss the petition without prejudice, as it may deem fit.
“Exceptional hardship” and “exceptional gravity” expressions have not been defined anywhere in the Act of 1955. These terms have an extensive scope and address unusual and extraordinary situations. If the petitioner can demonstrate that the hardships are so severe that their life has become unbearable, or if the respondent has committed a grievous moral offence that has made the situation intolerable, the court may grant a divorce decree without waiting for the full one-year period to expire.
Section 14(2) stipulates that, when deciding an application under this section, the court must also consider the welfare of any children born from the marriage and the possibility of reconciliation between the parties. The court takes regard to the reasonable probability of reconciliation between the spouses. These considerations are extraneous to the consideration of exceptional hardship or depravity. In each case, the chance of reconciliation has been given primacy. Even though the spouse’s relation is strained and there exists no immediate prospect of reconciliation, the interest of the child is to be given paramount consideration.
Section 15
Section 15 of the Act of 1955 outlines the conditions under which a divorced person may remarry. It stipulates that once a marriage is dissolved by a divorce decree, and either there is no right of appeal or, if there is, the appeal period has passed without an appeal being filed, or if an appeal was filed but dismissed, both parties are legally permitted to remarry.
Procedures of divorce (Detailed study under the Hindu Marriage Act 1955)
Section 19 of the Act states the court in which the petition of divorce should be presented. It also highlights the fact that every petition that is sought to have been presented under this Act should be presented to the district court within the local limits of the ordinary original civil jurisdiction. The petition can, therefore, be filed in:
The place where the marriage was solemnised;
The place where the respondent resides during filing of the petition;
The place where the couple last resided together;
The place where the wife of the petitioner last resided; or
If the respondent is residing at a place that is outside territorial limits to which the act extends or has not been heard of being alive for a period of 7 years, then the petitioner could file a petition depending upon the place where he or she is presently residing.
Section 20 of the Act of 1955 states the contents and verification of the petition.
Sub-section 1 of Section 20 states that every petition for divorce presented under the Act of 1955 should be distinctly examined based on the nature and facts of the case, depending on which the claim for relief is decided.
Section 20 sub-section 2 states that the statement contained in every petition under this Act should be verified either by the petitioner or any other competent individual in a manner presented by the law for the verification of the plaints and during a hearing it may also be used as evidence.
Section 21A of the Act has been inserted to provide that in order to avoid multiple proceedings and inconveniences that would go into the entire marital life. Both clauses in sub-section 1 of Section 21A state the following:
Clause (a) states that where a petition has been submitted to a district court with appropriate jurisdiction by one of the spouses, requesting either a decree for judicial separation as per Section 10 or a decree of divorce under Section 13; and
Clause (b) states that subsequently, the other spouse has also filed a petition under this Act, seeking a decree for judicial separation under Section 10 or a decree of divorce under Section 13, based on any grounds. This petition may be filed in the same District Court or a different one within the same state or another state.
These petitions will be handled according to the provisions outlined in subsection (2).
Sub-section 2 of Section 21A states, for a situation where subsection (1) applies:
If both petitions are filed in the same district court, they will be consolidated and adjudicated together by that court;
If the petitions are filed in different district courts, the later-filed petition will be transferred to the district court where the earlier petition was filed. Subsequently, both petitions will be consolidated and adjudicated together by the district court where the initial petition was filed.
Sub-section 3 of Section 21A states that if condition (b) of sub-section (2) is applicable, the court or the Government, generally empowered under the Code of Civil Procedure, 1908, to transfer any suit or proceeding from the district court where the subsequent petition has been filed to the district court where the earlier petition is already pending, shall exercise its authority to transfer the later petition as if it had been empowered to do so under the aforementioned Code.
Section 21B of the Act states that it tries to expedite the trial of a petition made under the said Act. It explains the following:
Firstly, sub-section (1) provides that the trial of a petition under this Act should, as far as feasible while ensuring justice, proceed continuously from day to day until its conclusion. However, the court may adjourn the trial beyond the following day if deemed necessary, with reasons recorded for such adjournment;
Secondly, sub-section (2) provides that every petition under this Act shall be conducted with the utmost speed, aiming to conclude the trial within six months from the date the respondent is served with notice of the petition;
Thirdly, sub-section (3) provides that every appeal under this Act shall be processed with utmost speed, with efforts made to conclude the hearing within three months from the date the respondent is served with notice of the appeal.
Section 21C of the Act provides for documentary evidence. It states that, irrespective of any provision in any enactment to the contrary, no document shall be deemed inadmissible in evidence in any proceeding during the trial of a petition under this Act solely because it lacks proper stamping or registration.
Section 22 of the Act states that all the proceedings under this Act should be conducted in camera, and it is unlawful for anyone to print or publish the same. However, if any act happens contrary to the given provision then he or she shall also be punishable with a fine which shall extend to one thousand rupees. In this section, the word ‘camera proceeding’ means that all the acts should only happen in the presence of the Judge, the concerned advocates of the two parties and the two parties, i.e., the petitioner and respondent themselves. Thus, it is not an open court where one could be allowed.
Section 23 of the Act, provides a bar to matrimonial relief. It explains the conditions under which the court would not be granting matrimonial relief. The conditions are as follows:
Clause (a) of sub-section (1) of Section 23 states that the petitioner needs to show that he or she is not taking advantage of his own wrong. The court must be convinced that valid grounds for granting relief exist, and, except in cases where relief is sought based on the grounds outlined in sub-clauses (a), (b), or (c) of clause (ii) of Section 5, the petitioner is not leveraging their own misconduct or disability to secure such relief. For example, if the petitioner had been constantly torturing the respondent, and the respondent had also shown some act of cruelty against the petitioner, then the petition cannot seek relief on the ground of cruelty committed by the respondent, as it was the petitioner who started the act of torturing and teasing the respondent. Hence, in this regard, the court holds up the principle of equity that one who comes for equity must come with clean hands;
Clause (b) of sub-section 1 of Section 23 states that a petition that is being filed on the ground of adultery has not in any manner been an accessory to conniving at or condoning the acts complained of. Thus, ‘accessory’ in this regard means aiding, assisting or actively participating in the offence complained about. If this ground of participation by the petitioner is established, then the court would grant no relief. Similarly, ‘connivance’ implies a willing consent to a conjugal offence. Therefore, if one spouse is willingly, intentionally or recklessly allowing the conjugal offence then no relief could be given by the court. Lastly, condonation means to forgive. Thus, if there is a reinstatement of the spouse who had suffered the matrimonial offence, then the court will see that such there are chances of forgiveness and smooth functioning of a relationship, as a result, no relief would be given;
Clause (bb) of sub-section 1 of Section 23: if the divorce is given on the ground of mutual consent and that consent had not been derived by any fraud, force or undue influence, then such a relationship would also be barred from any sort of relief;
Clause (c) of subsection 1 of Section 23 states about collusion. Thus, it holds the view that if two parties within the marital ties had consented to divorce but, in order to get relief, they tricked the court, therefore, in such circumstances, relief would not be given;
Clause (d) of sub-section 1 of Section 23 states that if there is an unreasonable or improper delay in filing a decree for divorce or judicial separation, then relief also cannot be given;
Section 23(2) states that it is the duty of the court to look into the nature and circumstances of the case and try every possible endeavour to bring about a reconciliation between the parties. However, this subsection does not apply to proceedings where relief is sought on the grounds specified in clauses (ii), (iii), (iv), (v), (vi), or (vii) of subsection (1) of Section 13.
Section 23(3) states that to promote reconciliation, the court may adjourn the proceedings for up to fifteen days and refer the case to a person chosen by the parties or appointed by the court if the parties do not select someone on their own. This person will assess whether reconciliation is possible and has been achieved, and the court shall consider this assessment when resolving the proceedings.
Section 23(4) states that if the marriage is dissolved by a decree of divorce, then a copy of the decree passed by the court shall be given free of cost to both parties.
Judgements relating to divorce under the Act
Smt. Sureshta Devi vs. Om Prakash (1991)
The question before the Hon’ble Supreme Court in this casearose whether either party can withdraw their consent to the divorce petition at any time before the decree is issued. With differing opinions among various High Courts on this issue, the Supreme Court stated that Section 13B(2) of the Act puts a mandate upon the court to hear both parties. If either party later withdraws their consent or expresses unwillingness to proceed with the divorce, the court cannot grant a decree of divorce by mutual consent. Issuing a decree based solely on the initial petition would compromise the principle of mutual consent. Mutual consent is vital for the court to issue a decree under Section 13B, and it must be upheld throughout the process. Maintaining mutual consent is essential for the court to finalise a divorce decree.
Nirajani Roshan Rao vs. Roshan Mark Pinto (2013)
In thiscase, the appellant, the original petitioner and wife, filed a petition seeking a decree of nullity of marriage under Section 11 of the Act of 1955, and alternatively requested a divorce on the grounds of cruelty under Section 13(1)(ia) against her husband. The couple was married on January 13, 1999, according to Hindu marriage customs. Shortly after the marriage, they continued to practise their respective religions. The wife argued that the marriage was invalid because it violated a key requirement of Section 5 of the Hindu Marriage Act, which stipulates that both partners must be Hindus at the time of marriage. The Hon’ble Family Court dismissed the petition in accordance with Order 7 Rule 11 of the Code of Civil Procedure, 1908, since it lacked a valid cause of action, and consequently rejected her plea.
The issue in question was whether the petition for a decree of nullity or, alternatively, a decree of divorce was maintainable. The Hon’ble Bombay High Court determined that the petition did not present a valid cause of action and that the court’s jurisdiction was restricted under the Act of 1955. The petitioner argued that her consent to the marriage was obtained through fraud, as the respondent had concealed his Christian identity. Therefore, the appellant argued that she was entitled to a decree of nullity on the grounds of fraud due to the respondent’s concealment of his Christian identity. The Hon’ble Appellate Court dismissed the appeal of the petitioner with no order as to cost and held the Hon’ble Family Court’s decision to be legal.
X vs. Y (2024)
In this case, the marriage between the parties took place on March 25, 1999. The husband filed for restitution of conjugal rights after experiencing marital discord on December 17, 2008. On May 15, 2013, the court issued a decree for restitution, directing the wife to resume cohabitation with the husband within three months. Since the wife failed to comply with the decree, the husband filed for divorce on grounds of cruelty and desertion before the Family Court on August 23, 2013. In 2015, the High Court upheld the restitution decree by dismissing the wife’s appeal. The Family Court granted the husband’s divorce petition in 2016, but this decision was overturned by the High Court in 2019, which found that the grounds of desertion had not been substantiated.
The appellant then approached the Hon’ble Supreme Court, where his appeal was allowed. A two-judge bench observed that the respondent did not resume cohabitation after May 15, 2013, up until the filing of the divorce petition. She has not claimed that any events occurred after the decree for restitution of conjugal rights was issued that would have prevented her from rejoining the appellant. Therefore, the appellant’s desertion, at least from 2008 until the filing of the divorce petition in 2013, persisted without reasonable cause. Consequently, a decree for divorce based on desertion under Section 13(1)(ib) should have been granted. The judges also believed that the High Court should have upheld the divorce decree due to the complete breakdown of the marriage over the past 16 years or more.
Dr. Nirmal Singh Panesar v. Mrs. Paramjit Kaur Panesar@ Ajinder Kaur Panesar (2023)
In thiscase, Paramjit Kaur Panesar, an 82-year-old wife, declined to move to Chennai with her husband after his transfer there by the Indian Air Force in 1984. Consequently, in 1996, her husband, Nirmal, filed for divorce, citing cruelty and desertion under Sections 13(1)(ia) and 13(1)(ib) of the Act. Although the district court granted the divorce in 2000, Paramjit appealed, resulting in the reversal of the decision. Mrs. Paramjit Kaur Panesar, the respondent, expressed a wish to care for her 89-year-old husband, Dr. Panesar, and strongly opposed being referred to as a “divorcee.” The couple has three children. Given the respondent’s emotional condition, the Punjab and Haryana High Court overturned the District Court’s decree, ruling that a divorce based on irreparable breakdown would not offer a just resolution. The central question was whether it is necessary to invoke the powers under Article 142 of the Constitution of India to dissolve a marriage that has irretrievably broken down, even if this breakdown is not officially recognized as a ground for divorce under the Act of 1955.
The appellant approached the Hon’ble Supreme Court against the decision passed by the Hon’ble Punjab and Haryana High Court. The Appellate Court, referencing the Shilpa Sailesh vs. Varun Sreenivasa(2023) case, ruled that the discretionary power under Article 142 can be utilised to dissolve a marriage on the grounds of irretrievable breakdown to ensure “complete justice,” even if one spouse opposes the dissolution. It also opined that the court has the authority to depart from procedural and substantive laws and exercise discretion to resolve the marriage by balancing the equities of conflicting claims. However, this discretion should be applied with great care and caution. It should be done so because marriage is still regarded as a sacred, spiritual, and profoundly emotional bond between husband and wife. It is guided not only by legal statutes but also by social norms. Many other relationships in society are derived from and dependent on matrimonial connections. Applying “irretrievable breakdown of marriage” as a rigid standard for granting divorce under Article 142 of the Constitution of India may not be appropriate. Therefore, the appeal was dismissed.
Mr. R. Nalliyappan vs. Mr. I. Calvin Jones for M/s. Ajmal Associates (2023)
In this case, the petitioner is the wife, and the respondent is the husband. Initially, the respondent sought a divorce from the petitioner on grounds of cruelty. Concurrently, the petitioner filed a petition for restitution of conjugal rights. The Family Court granted this petition and dismissed the divorce petition. On appeal, the Appellate Court overturned this decision, granting the divorce and rejecting the petition for restitution of conjugal rights. The petitioner subsequently filed a second appeal, prompting the High Court to overturn the Appellate Court’s decision by dismissing the divorce petition and reinstating the petition for restitution of conjugal rights.
Subsequently, based on a new cause of action and different grounds—namely, desertion and ongoing cruelty related to subsequent events—the respondent filed a new petition for divorce in the year 2018. While this petition was pending, the petitioner sought to have it dismissed under Section 11 of the Civil Procedure Code, 1908, on the grounds of res judicata. The lower court rejected this request, prompting the petitioner to file the current Civil Revision Petition. The respondent’s counsel argued that following the dismissal of the previous divorce petition, the petitioner had filed numerous petitions under the Domestic Violence Act, 2005 and lodged complaints against the respondent and his family members. This resulted in continued harassment by the petitioner, prompting the respondent to file a new divorce petition based on persistent cruelty and prolonged desertion. Therefore, the trial court correctly rejected the dismissal petition, and the counsel requested that this petition also be dismissed. The petitioner’s sole argument is that the second divorce petition is barred by res judicata, as the respondent had previously filed a divorce petition that was dismissed.
However, the Hon’ble Madras High Court, upon examining the divorce petition, it is evident that the cause of action was different from the previous one. Therefore, the current divorce petition is valid and the principle of res judicata does not apply. It stated that regarding the grounds for dissolving matrimonial matters, these are often of a continuing or recurring nature. A petition for divorce based on cruelty, desertion, or adultery is not barred from being filed again on the same grounds, as long as the petition is based on new facts. A cause of action consists of a set of facts that a party must prove to obtain relief from the court. The facts underlying allegations of cruelty, desertion, or adultery can change, leading to different causes of action depending on the facts of each case. When a cause of action is ongoing and recurrent, a new divorce petition on the same grounds will not be precluded by res judicata, even if a previous petition was dismissed.
Conclusion
The phrase “Incredible India” is really true to itself. Each and every culture, religion, personal laws, codified laws amuses the society and its upbringing. The change in Hindu society and acceptance of the change in the dynamic society is a matter of immense pleasure and pride being an Indian. Previously the divorce concept was not accepted and it was considered that a girl is bound to adjust and compromise. But through the birth of the Act, gradually the concept of divorce and therefore the relevant provision as per the needs of the dynamic society, was also established. Hence staying in an abusive marriage is a curtailment of the basic fundamental rights like Right to live peacefully, freedom of speech and expression, etc. Lastly it is only expected from the people that they don’t misuse these powers given by the law to them rather they should uphold the laws and human emotions of love, loyalty, trust and kindness.
Frequently Asked Questions (FAQs)
What is the Hindu Marriage Act, 1955 ?
The Hindu Marriage Act, 1955 is an Indian law that governs marriage and divorce among Hindus. It provides the legal framework for the solemnization, validity, and dissolution of marriages within the Hindu community.
Who is covered under the Hindu Marriage Act, 1955 ?
The Act applies to Hindus, including Buddhists, Jains, and Sikhs. It also applies to any person who is not Muslim, Christian, Parsi, or Jew.
What is the difference between a contested and an uncontested divorce ?
A contested divorce occurs when the parties do not agree on the terms or grounds for divorce, requiring court intervention. An uncontested divorce happens when both parties mutually agree on the terms of the divorce and its conditions.
What is the role of the family court in divorce proceedings ?
The family court is responsible for handling divorce cases, facilitating mediation between parties, and ensuring that all legal requirements are met. The court also decides on issues such as alimony, child custody, and division of property.
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