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Patent infringement

By
Ayush Verma
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0
Image Source- https://bit.ly/3dUjRL6

This article is written by Satyaki Deb, an LL.M. candidate from the Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur and by Jisha Garg, a student currently pursuing B.A.LLB (Hons.) from the Rajiv Gandhi National University of Law, Punjab. This is an exhaustive article dealing with the concept of Patent Infringement in India. The article throws light on the laws provided in cases of patent infringement, specifies the defences available, mentions types of patent infringement, and discusses the various doctrines that can be used in a patent infringement suit. At last, the article analyses the various landmark judgments pronounced by the courts relating to patent infringement.

Introduction

A patent is an invention-based legal document that defines and provides the bearer with exclusive rights to exclude others from producing, selling, or distributing such an invention. The violation of these exclusive rights of the patent holder is known as patent infringement. The patent is granted by the government for a limited period of time. This is to say that if the rights granted to the patentee are exercised by someone else who is not authorised by the patentee, then it would be considered a violation of patent rights, and the person is made liable for the same. Sections 104–115 of the Patents Act, 1970, provide provisions regarding patent infringement.

The Patents Act, 1970 does not provide specifications as to what would be considered an infringement of a patented product. But it lays down two kinds of activities (read with Section 48) which, when committed without the consent of the patent holder, would constitute infringement:

  1. Making, using, offering for sale, selling, importing the patented product,
  2. Using the patented process, or using, offering for sale, selling, or importing the product directly contained by that process.

Legislations governing patent infringement

The major enactment governing patent infringements in India is the Patents Act, 1970 which was implemented in 1972. It made pharmaceutical product innovations, as well as those for food and agrochemicals, un-patentable in India. It allowed for the copying and marketing of innovations in India that were patented elsewhere in the world. This Act also imposed restrictions on the import of finished formulas and introduced strict price control regulations. However, this act proved detrimental to foreign investments in the country since it did not benefit the big foreign multinational corporations and was not in consonance with the global patent system.

In 1992, India became a member of the WTO, and therefore, it became important to amend the existing law in order to meet the requirements of the TRIPS agreement. In order to comply with the TRIPS agreement, the introduction of Exclusive Marketing Rights (EMR) and the mailbox system was important. Under the EMR, exclusive rights would be provided to a foreign company to market a pharmaceutical or agricultural product in the Indian market for a specified period of 5 years. The mailbox system would be the one that would receive all applications for the grant of patents for pharmaceutical and agricultural products. In order to implement these provisions in the Patents Act, 1970, amendments to the Act were introduced in 1999, 2002, and 2005.

The relevant US provision for patent infringement is 35 U.S.C. 271.

Product patent

The 2005 amendment provided for product patent protection in contrast to the earlier provision of the Act that provided for only process patent protection. Process patent protection meant that only the process used for the manufacture of the product could be patented and not the final product. So, even if the person used a different process than the one used by the original inventor in order to make the same product, it would not be considered a violation of the patent.

Compulsory licensing

This provision was introduced in compliance with the TRIPS agreement. It empowered the government to make the patented product available to the general public for non-commercial use in case of a national emergency by invoking the compulsory licence. If the patented product is not available at an affordable price to the general public, even then, the government can invoke compulsory licensing.

Other provisions

Under this amendment of 2005, the patent holder could challenge the licence in order to block the general production of his drug. The Act also provided for pre-grant [Section 25(1)] and post-grant opposition [Section 25(2)] clauses. Provisions to safeguard national interests against violations of patent laws were also introduced.

Types of patent infringement

There are different kinds of patent infringement that are possible. They are listed and discussed as follows:

  • Direct Infringement
  • Indirect Infringement
  • Contributory Infringement
  • Literal Infringement
  • Wilful Infringement

Direct infringement

This is the most common type of patent infringement. As the name suggests, when a patented product or method (or substantially similar, i.e. equivalent to them) is used, marketed, sold, offered for sale, or imported without permission of the patentee during the term of such a patent, it constitutes direct patent infringement. It is considered to be of two types, viz- literal and non-literal patent infringement. They are discussed as follows:

Literal infringement

As the word “literal” signifies, literal infringement is the type of direct patent infringement where every component of the patent specifications is taken to constitute the infringing product or process. In other words, all the claims in the patent specification match the features of the infringing product or process. A pertinent case law in this regard is the case of Polaroid Corp v. Eastman Kodak Co. (1986), where Kodak was considered to have committed literal infringement of Polaroid’s patented instant camera technology. To make things more precise, if a claimed invention is missing from the infringing product or process, then such infringement will not be a literal infringement.

In another case, Larami Corp. v. Amron (1993), Amron sued Larami for infringing its patented toy water gun. The allegedly infringing device was a toy called SUPER SOAKERS, which had a separable and removable water tank, unlike the patented invention, which had an “elongated housing having a chamber therein for a liquid.” The Court held that Larami’s SUPER SOAKERS did not infringe Amron’s patent.

Non- literal infringement

Non-literal infringement is the type of patent infringement where the infringer has made an equivalent product or process to the patented product or process and has been using, selling, marketing, offering for sale, or importing the same without permission of the patentee during the term of such a patent. It is best to understand these with an illustration.

Illustration of literal and non-literal patent infringement:

Suppose there is a patented invention of ABC Inc., which is a chair cum single bed, and the claims comprise of the following components:

  1. A pair of armrests.
  2. Two pairs of legs.
  3. A sitting structure.
  4. An extendable backrest structure.
  5. A folding pin that transforms the sitting structure and backrest into a bedding structure.

Now, XYZ LLC. comes and makes the same product with all five claims of ABC Inc. within the patent’s lifespan and with no substantial modification. XYZ LLC. will have committed literal patent infringement. If XYZ LLC. made a product with the first four claims only, it would not be a literal infringement as a listed feature or a claimed feature was excluded. 

If XYZ LLC. comes up with a product that has all five claims, but in place of the second claim, instead of two pairs of legs, three legs are used. So, this will not be a literal infringement as all the claims of ABC Inc. are not ditto copied. But what has been done here is that XYZ LLC has come up with a minor modification and made a functional equivalent of ABC Inc.’s patented product. This product of XYZ is called a functional equivalent because they substantially work the same way to get the same results. Hence, this will constitute a case of non-literal patent infringement. But if XYZ LLC comes up with a product that has all five claims of ABC Inc. but also has a sixth claim that has a remote-controlled and motorised neck messaging structure attached to the extendable backrest structure, it can be said with confidence that this being a substantial modification will not be considered patent infringement.

Indirect or induced infringement

Indirect infringement is a type of patent infringement where the patentee’s rights are involuntarily or unwillingly infringed by an infringer. It may so happen that some amount of deceit may be involved too. These days, products are becoming increasingly complex, and one end consumer product consists of multiple patented components. The manufacturer of such products cannot always have all the patent rights to the components of such products. Usually, the manufacturer takes licences for such required components to make and sell his products. But still, at times, a substantially similar product (mostly by accidents) is created because the indirect infringer had supplied some necessary components to make the substantially similar product, and the manufacturer ended up making the same without the full set of necessary permissions (licences) for each of the patented components. An illustration will make this clearer.

Illustration: Suppose X has a patent on a particular type of sound system. Y makes a substantially similar sound system (that infringes X’s patent) with the help of Z’s supply of a particularly essential component. Here, Y has committed direct infringement, and Z has committed indirect infringement of X’s patent rights.

Contributory infringement

Contributory patent infringement is a type of secondary patent infringement. This type of infringement happens when an indirect infringer supplies a direct infringer with a part that has no substantial non-infringing use. In other words, the indirect infringer, knowing that such essential parts (components) will make the manufacturer cause direct infringement, still supplies such parts.

Illustration: Suppose X has a patent on a particular type of sound system. Y makes a substantially similar sound system (that infringes X’s patent) with the help of Z’s supply of a particularly essential component. Here, Y has committed direct infringement, and Z has committed indirect infringement of X’s patent rights. Now, if Z had supplied or sold such an essential component knowingly, Z would have committed contributory infringement.

Willful infringement

As the name suggests, willful infringement is the type of patent infringement in which the infringer intentionally or willfully disregards and violates the patent rights of the patentee. In other words, if the infringer had knowledge of the patent and still violated the same, then such an infringement shall be a willful infringement.

So, what becomes important to establish here is that the infringer had knowledge of the patent, and the patentee has the burden to prove this to establish willful infringement. Usually, the patentee tries to discharge such onus by establishing that the infringer was duly served notice but continued infringement nonetheless. In such a case, the infringer has the defence to show that he had taken a legal opinion on the same and continued infringement because he believed in a bona fide manner that such a patent was either invalid or his actions did not constitute infringement.

If a patentee can successfully show willful infringement, then the infringer may have to face substantial pecuniary penalties that usually cover the legal fees of the patentee and even three to four times the actual damages faced by the plaintiff.

A significant case law in this regard is Power Lift, Inc. v. Lang Tools, Inc. (1985), where the infringers (Lang Tools) were held to have infringed Power Lift’s patent willfully.

Doctrines related to patent infringement

Various doctrines are used to analyse and justify patent infringement, and they are discussed as follows:

Doctrine of Equivalents 

In the event a patent infringement has not been done literally, it may have happened under the judicially created doctrine of equivalents if the patented invention and the allegedly infringing invention have the same function, way, or result. In other words, if the allegedly infringing device performs substantially the same function in substantially the same way to achieve the same result, then it shall constitute patent infringement under the doctrine of equivalents. This doctrine has been accepted by most courts in the world and permits the courts to hold a party liable for patent infringement even though the infringing invention does not fall within the literal scope of the patent claims but nevertheless is equivalent to the patented invention.

It is clear from the above discussion that the doctrine of equivalents allows a broader interpretation of the claims, but such expansive claim coverage is certainly not unbounded in nature. The expansion of claim coverage as allowed under this doctrine is bound by the doctrine of “prosecution history estoppel” and the prior art.

  • Prosecution history estoppel: As the name suggests, if during the prosecution history of the patented invention, some subject matter was relinquished by the patentee, then such subject matter cannot be claimed back under the doctrine of equivalents as the patentee will be estopped from doing so. And it is objectively decided as to what portions of the subject matter were given up by the patentee to get the patent from the perspective of what is reasonably clear to a competitor from the prosecution history. Also, the patentee cannot claim under this doctrine what he himself cannot claim literally from the USPTO.
  • Effect of prior art: What this means is that the patentee cannot claim under the doctrine of equivalents anything from the prior art that he himself cannot claim under literal claims from the USPTO. The broad coverage of the claims of the patentee cannot be so wide as to infringe on the prior art that he literally cannot obtain from the patent office.

Thus, the doctrine of equivalents is the equitable doctrine that effectively broadens the scope of claims beyond their literal language to the true scope of the patented invention.

Doctrine of Colourable Variation

A colourable variation is an immaterial or insignificant variation. According to the doctrine of colourable variation, if the infringer makes a slight modification to the patented product or process but, in fact, takes in substance the essential features of the patented invention, then it shall constitute patent infringement under the doctrine of colourable variation.

In the case of Lektophone Corporation v. The Rola Company (1930), a patentee had a patent for a sound-reproducing instrument for phonographs, and it was clear from the patent application that the size and dimensions of the invention were the essence of the patent. The alleged infringer had made the same central paper cone as the patented invention but made a colourable variation and made the cone smaller than the patented invention. The court held that such colourable variation stopped the allegedly infringing invention from accomplishing the object specified in the patent claims and thus did not amount to infringing patentee’s rights.

Some other less-used doctrines, like the Doctrine of Complete Coverage, Doctrine of Compromise, Doctrine of Estoppel, and Doctrine of Superfluity, also help to justify a case of patent infringement.

Ways to prevent patent infringement

There are various ways to avoid patent infringement, some of which are listed below:

Creation of original products

Companies can hire staff members who can create original products using their creativity and intellect. However, the company should not forget to add a clause in the contract that the product produced would be the exclusive right of the company so that the staff does not claim its own rights over the invention at a later stage.

Obtaining appropriate licences from patent holders

If the companies or corporations plan on using any registered material for further use, then they should seek permission from the patent holder before using it. Otherwise, the company would be made liable for using patented material.

Royalty-free material basically refers to the use of online material that can be used without any restrictions. However, in order to avoid any violations of the holder of exclusive rights over such material, it is best suited that due credit is given to the holder of such rights.

Patent infringement suit

The Patents Act, 1970 empowers the patentee to file a suit in case there is an infringement of his exclusive patent rights. In order to file a suit, the limitation period as specified under the Limitation Act, 1963 is three years from the date of the infringement of the patent rights. The burden of proof usually lies on the plaintiff to prove that there was patent infringement by the defendant, but in certain cases, it is at the discretion of the court to decide the burden of proof. In India, both district courts and the High Courts have the power to hear cases related to patent infringement (vide Section 104). However, in case there is a counterclaim for revocation of the patent filed by the defendant, then only the High Court has the right to hear the case. The patentee can file the case in the place of his residence or the place where he carries out his business, or where the cause of action arises. Section 48 of the Indian Patents Act contains the rights of the patentees. It lists the following activities as the infringement of the patentee’s rights:

  1. Using,
  2. Making,
  3. Importing,
  4. Offering for sale patented products,
  5. Selling the patented products or products directly obtained from the patented process.

If the defendant is involved in any of the above-mentioned acts, then he will be considered liable for infringement of the rights of the patentee. Section 108(1) of the Patents Act, 1970 provides relief to the plaintiff if his patent rights have been violated. The remedies available to the patentee are:

Temporary/Interlocutory injunction

A temporary injunction is invoked by the court at the initial stages of the suit filed by the plaintiff. This is passed in order to prevent the defendant from getting further gains by using other patented products. In order to invoke a temporary injunction, it is important for the patentee to prove that the patent is valid and has been infringed by the defendant. Also, the subsequent infringement of his patent rights has caused him irreparable loss.

Permanent injunction

A permanent injunction is invoked when the case is finally decided by the court. If the defendant is found guilty of patent infringement, the temporary injunction becomes a permanent one. However, the temporary injunction is dissolved and does not become a permanent injunction if the defendant is released from liability.

Damages

In case the defendant is proven guilty, the plaintiff is either awarded damages or an account of profits by the defendant. Damages may not be provided to the plaintiff in case the defendant pleads ignorance and proves that he had no reasonable grounds to believe that the said patent existed at the time of infringement.

Defences available in a patent infringement suit

There are various defences provided in a patent infringement suit which absolve the defendant of his liability:

  1. In case the impugned patent is obvious and not novel (patent invalidation claim).
  2. When a defendant denies infringement by proving his lack of intention.
  3. In case of estoppels or res judicata.
  4. When a plaintiff is not entitled to sue for infringement.
  5. When the defendant has the express/implied licence to use the patented product.
  6. When there is a revocation of patents for reasons of it being illegal.
  7. In the case of pharmaceutical drugs/medicines, the government can retain the exclusive right to manufacture patented products for public welfare.

What does not amount to infringement

Section 107A of the Patents Act incorporates bolar provision and provision for parallel imports:

Bolar provision: It gives rights to the manufacturers of pharmaceutical products to conduct research on various patented products so that the products can be brought to market for the welfare of the general public. But this research can only come into effect after the expiry of the patented product.

Parallel import provisions: This gives the right to import the product from the person authorised by the patentee. This importation will not be considered an infringement of the patent rights of the patentee. This meant any person could import patented products from the person who is in possession of the due authorization or licence without seeking permission from the patentee, and this would not be considered an infringement.

Landmark judgements

Bajaj Auto Limited vs TVS Motor Company Limited JT 2009 (12) SC 103

This case was instituted in the year 2007 by Bajaj Auto Limited against T.V.S. Motor Company Ltd. in the Madras High Court. In this case, the court held that the cases related to copyright infringement, including the cases of patent infringement, took many years to get disposed of. The court ordered the other courts to expedite the disposal of the cases related to copyright infringement. The parties often get caught up in getting an order for a temporary injunction. The court suggested that the proceedings related to such cases be carried out on a day-to-day basis and that decisions be announced within four months of the initiation of the proceedings.

Novartis vs Union of India (2013) 6 SCC 1

In this case, a company named ‘Novartis’ filed an application before the court to grant the patent to one of its drugs, “Gleevec,” which they claimed was invented by them. In this case, the court drew a distinction between invention and the discovery of an already existing drug. Also, the court formulated a new test for granting patents to pharmaceutical products known as enhanced therapeutic efficacy. The court introduced this test, besides the other traditional tests mentioned under Article 3 of the Patents Act, to ensure that these patented products are made available to the general public at nominal prices in times of need.

F. Hoffmann-La Roche Ltd vs Cipla Ltd., Mumbai Central

This was one of the first cases of patent infringement in India after independence. In this case, the plaintiff pleaded for an interim injunction order to be passed against the defendant’s sale of a generic form of the drug. The Delhi High Court rejected the case, saying that the sale of the patented product was in the public interest and that a counterclaim for the revocation of the patent was pending in another court.

Dr Snehlata C. Gupte vs Union of India & Ors (W.P. (C) No 3516 and 3517 of 2007) Delhi HC)

The court, in this case, cleared up the ambiguities related to the date as to when the patent could be considered granted. Some have contended that the patent is granted as soon as the decision for its non-rejection comes. Due process of law is the bedrock of legal provisions in the country. But the court held that the issue of a certificate in the case of granting patents is a mere formality, and the application for the grant of a patent would be considered accepted once the controller passed the order.

Conclusion

Patent infringement not only hurts the interests of the inventor/patentee but also de-incentivises him/her from doing further inventions. This is the reason why patent laws were introduced, so that the interests of the patent holders could be protected. However, with changing times and changing needs, it is important that patent laws be revisited and that inventors are provided with more safeguards in relation to their inventions. In cases like Moleculon Research Corp. v. CBS, Inc. – 793 F.2d 1261 (Fed. Cir. 1986), it has been held that the true meaning of a patent claim must be interpreted in light of the complete specification and the patent as a whole. Thus, it is also important that judicial interpretations (in India and abroad) of various patent laws be successfully implemented in the best interest of both the patentee and the general public. At last, the government’s contribution would also play a crucial role in protecting maximum interests and promoting new inventions. 

References

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Green bonds for issuers and investors

By
Sneha Mahawar
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0
green bond

This article has been written by Pranjal Sharma pursuing Diploma in US Corporate Law and Paralegal Studies.

This article has been published by Sneha Mahawar.​​ 

Introduction

This article documents a brief introduction to green bonds financial instruments and the benefits it reaps to issuers and investors.

This article has been divided into six sections as stated below:

  • What is a green bond instrument
  • History and origin
  • Different types of green bonds
  • How it works
  • Benefits of green bonds to the issuers
  • Benefits of green bonds to the investors
  • Conclusion

The anticipated read time for this article is 25 minutes.

What is a green bond instrument

Green bond financial instruments fall under the category of fixed-income investments. It is specifically used for environmental and sustainable projects. These projects include wind, solar and hydro energy. Green bonds can be issued by companies, organizations and governments. These bonds are generally issued for raising capital for renewable energy and these bonds help nature by providing for a better recycling effort, and sustainable forestry.

These bonds are typically asset linked and backed by the issuing entity’s balance sheet. They carry the same credit rating as their issuer’s other debt obligations.

History and origin of green bonds

In the year 2007, an agency of the United Nations published a report surfacing the negative effects of human activities on the environment and how it is related to global warming. This report triggered the Swedish government and shortly afterwards, they undertook financial projects for the betterment of the environment.

In the very next year that is 2008, the World Bank issued the first green bond and thus green bonds originated. Since then, over the years more and more countries adopted this financial instrument and realized its usefulness towards the betterment of the environment.

Today, more than 50 countries have adopted this financial instrument to raise funds for the betterment of the environment and among these countries, the United States is the largest issuer of green bonds. 

In the year 2020, the estimated worth of wealth generated by the issuance of green bonds stood at 350 billion dollars.

Different types of green bonds

There are majorly six types of green bonds. These are “Use of Proceeds” Bonds, “Use of Proceeds” revenue bonds or asset-backed securities (ABS), project bonds, securitization bonds, covered bonds and loans. Each of the aforementioned types is briefly explained below:

  • “Use of Proceeds” Bonds: Needless to say, the money provided by the lender is used for green projects. In case of liquidation, the lender has recourse to the other assets owned by the issuer.
  • “Use of Proceeds” Revenue Bonds or Asset-Backed Securities (ABS): Money provided by the lender is used to finance or to refinance green project initiatives. Unlike the case in “Use of Proceeds” bonds, in this case, the collateral for the debt comes from the revenue collected by the issuer which can be taxes or fees.
  • Project Bonds: Capital financed in this type of green bond can only be invested in a specific green project and the scope of this type of green bond is limited to that particular green project only.
  • Securitization Bonds: Capital financed by this type of green bond can only be invested in a set of green projects. It is similar to project bonds in a sense. Project Bonds have a scope limited to just one project but in this case instead of one green project there is a portfolio of multiple green projects.
  • Covered Bonds: This type of green bond is used to finance a group of green projects. This group of green projects is called Covered Pool. In this type of green bond, if the issuer fails to repay the debt payments, then the bondholders gain recourse over the covered pool.
  • Loans: In this type of green bond, the issuer takes a loan from the investors. This loan can either be backed by collateral or can be insecure and not backed by any collateral. In this case, if the issuer fails to make the repayment, then the lender gains control over collateral (if there was any). If there was no collateral, then the lender gains control over the personal assets of the issuer.

How green bonds work

In terms of functionality, green bonds work just like any other corporate or government bond. Borrowers or issuers of green bonds issue green bonds to the investors/lenders and raise capital. This capital is then used for running green projects. These green projects result in the betterment of the environment.

Types of green projects commonly financed by green bonds are energy efficiency projects, renewable energy projects, natural resource management projects, projects to prevent water pollution, projects that promote clean transportation, projects that promote green buildings, etc.

Investors or money lenders who invest in these green bonds expect to earn profits when their bond matures. Not just this, money lenders also receive tax benefits when they invest in green bonds. It is so because by simply purchasing green bonds, they become part of initiatives that work for the noble cause of betterment of the environment and mother earth. Since the government wants to promote green initiatives, it gives tax benefits to those who purchase green bonds. As per Section 80 CCF of the Income Tax Act, 1961, the government can provide a tax deduction of up to Rs. 20,000 on certain notified long-term infrastructure bonds.  

This also makes green bonds unique in the sense that investors who purchase green bonds reap profits in multiple ways. Examples of these benefits are profits when the bond matures, tax benefits, and being part of initiatives that work towards the betterment of mother earth. 

Indian government’s initiatives

By virtue of Article 48-A, the Government of India is under a constitutional obligation to work for the betterment of the environment. In the year 2015, the Securities and Exchange Board of India issued a concept paper for green bond issuance. The concept paper highlighted the need for green bonds to achieve clean energy goals. Green bonds help in maintaining positive relations with the public and also facilitate investor diversification. The paper further pointed out that the green bonds issued by the World Bank and European Investment Bank have gained much popularity and India must also aim for the issuance of green bonds. 

Recently, the Government of India announced that it would issue green bonds for the purpose of raising capital for green investment projects and released the framework for sovereign green bonds. This will help in reducing the nation’s carbon intensity. The proceeds received from the issue of Sovereign Green Bonds would be used for public sector projects. It is pertinent to note that the investors who invest in sovereign green bonds will not bear any project-related risks and the payment of interest and principal would be made irrespective of the performance of the projects where the proceeds are deployed. Moreover, the Government of India has committed to provide transparent reporting on the use of the proceeds of Sovereign Green Bonds.   

The government is also planning to introduce the Energy Conservation (Amendment) Bill, 2022 which aims at specifying a carbon credit trading scheme. 

Benefits of green bonds to the issuers

Green bonds reap multiple benefits for their issuers or capital borrowers. Some benefits of issuing green bonds are:

  • Diversification: By issuing green bonds the bond issuers can diversify their sources of raising capital. Green bonds provide the issuers with liquidity and a demonstration value. 
  • Reputation: Working towards the betterment of the environment and mother earth is a noble cause. Needless to say, the individual or group of individuals taking these initiatives earn the respect of those around them. Since capital raised by green bonds is used for the betterment of the environment, the issuers thus also gain the respect and admiration of those around them. This includes the government as well since the government wants to promote more and more environment-friendly initiatives.
  • Sustainable financing: Green bonds provide a source of sustainable financing to the issuers and can raise sustainable capital by leveraging this financial instrument.
  • Attract investors: Green bonds are not just issuer-friendly but are investor friendly as well. An investor who invests in green bonds reaps profits at its maturity, reaps tax benefits throughout the bond lifecycle and by simply investing in green bonds becomes part of the noble cause of betterment of the environment and thus mother earth. Because of these reasons, green bonds generally always have high demand among investors. This is beneficial for issuers, as green bonds by their very own nature attract investors and are comparatively easy to raise capital with. 

Benefits of green bonds to the investors

Green bonds reap multiple for its investors or capital lenders. Some benefits of investing in green bonds are:

  • Financial returns: Green bonds as a financial instrument are not lesser than any other corporate or government bond. Investors investing in green bonds can expect profits at maturity in the same manner as they do in the case of any other corporate or government bond.
  • Tax and Social benefits: Since the capital provided by investors by purchasing green bonds is used for green projects, that is, for the betterment of the environment and thus mother earth, the investors willing to invest in green bonds also become contributors to this noble initiative. The government also gives tax benefits to those who invest in green bonds. It is so because the government wants to promote this initiative and wants to protect and improve the environment and mother earth.
  • Resolve climate change-related risks in their portfolio: Investors can invest in green bonds to get rid of climate change-related risks present in their portfolio. These risks are associated with changing policies such as carbon taxation which can lead to stranded assets. By investing in green bonds, they can invest in environment-friendly initiatives such as green building, etc., and bear a lower credit risk over time.

Conclusion

The rapid growth of green bonds in the capital market has a vast area of discussion and attention of investors attracted towards its growth and the returns from this investment. As we are witnessing the awareness among people for environmental and sustainable activities, so this leads to a strategic investment that will turn into a profitable venture and at the same time, it will be considered an environment-friendly investment which ensures its productivity in various activities such as clean water, agriculture and biodegradable waste treatment. Any such progression in environmental upgradation will need proper capital to finance its purpose.

Investors become aware of the risks of climate change to their portfolios and it is evident by the mechanism of the task force on climate-related financial disclosures (TCFD). They are working to report on such risks.

Green bonds provide investors with a proper platform to involve in good practices and majorly influence the strategy for businesses to issue bonds. Green bonds enjoy a 49% growth rate in the five years before 2021. As per climate bonds whose study provides a rough estimate of the green bonds market, annual issuance of green bonds could exceed the $ 1 trillion mark by 2023. 

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

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Indemnity insurance

By
Rachit Garg
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0
Image source - https://bit.ly/3e7s3L0

This article has been written by Naveen Talawar, a law student at Karnataka State Law University’s law school. The article deals in detail with an overview of indemnity insurance along with professional indemnity insurance.

It has been published by Rachit Garg.

Introduction

Businesses require a variety of insurance policies, from general liability to property. They all serve different purposes, but they all work to prevent the insured business from having to pay the full cost of suffering losses. This is referred to as “indemnity insurance.” Indemnity insurance is a type of insurance that provides a guarantee from the insurance company that it will cover any losses or damages the policyholder suffers. It is intended to protect professionals and business owners when found accountable for a specific event, such as misjudgment or malpractice. Financial advisors, insurance agents, accountants, mortgage brokers, and attorneys are among the professionals who are required to carry indemnity insurance. Other professionals who fall under this category include those who work in the legal and financial sectors.

Indemnity insurance : an overview

Indemnity insurance, which is a binding contract between the policyholder and the insurance provider, obligates the insurance company to pay for financial losses that result from covered claims in exchange for premium payments from the policyholder. Paying for any losses or harm that transpires is known as indemnifying someone. In the context of insurance, indemnity also refers to protection from legal responsibility for operations or actions. The damages that result from a covered loss are therefore covered by an indemnity insurance policy.

Indemnity insurance refers to insurance protection against financial losses brought on by professional negligence for an insured. Similar to other types of insurance, this one offers protection in exchange for recurring premium payments from the insured. For instance, a client might file a lawsuit against a wealth management company, claiming they caused them financial harm by following their advice. If the company has indemnity insurance, it may be able to cover all financial losses, including any associated legal costs.

The working of indemnity insurance

There is always a risk of financial loss, regardless of the industry or profession. Professionals like doctors, lawyers, and financial advisors all place a high value on and understand the significance of indemnity insurance. The purpose of insurance is to reduce one’s liability risk arising out of one’s profession. An indemnity is a comprehensive type of insurance compensation for losses or damages. In a legal context, it can also mean an exemption from responsibility for the damage. In return for the policyholder’s premium payments, the insurer guarantees that it will make the insured party whole for any covered loss. For particular professionals or service providers, indemnity insurance is an additional type of liability insurance.

Indemnity insurance protects a company or individual from financial losses brought on by professional negligence, mistakes, or malpractice. The professional’s insurance protects them in the event that their client sues them for causing them to suffer a financial loss as a result of their bad performance. In other words, it helps shift responsibility to a different party. A client’s financial loss or legal entanglements could result from possible negligence or failure to perform, and indemnity insurance guards against such claims. 

Clients who experience losses may bring a civil claim. In response, the professional’s indemnity insurance will cover both the cost of the legal battle and any damages awarded by the court.  The costs of an indemnity claim, such as court fees and settlements, are covered by indemnity insurance, just like any other type of insurance. The insurance coverage amount is determined by the terms of the individual contract, and the insurance’s cost is influenced by a number of variables, including the frequency of indemnity claims.

Professionals who require indemnity insurance

Only some professions are required to obtain indemnity insurance, which frequently occurs in the form of malpractice or errors and omissions insurance, even though most insurance policies are viewed as indemnity agreements. It typically applies to professional service providers who could commit a mistake that causes the client who requires indemnity insurance to suffer loss or harm. Although maintaining their licences requires that these professionals purchase professional liability insurance, every business can obtain indemnity insurance, whether for professional services or other business liability or commercial property needs.

Some professionals are required to have indemnity insurance. These experts include those working in the financial and legal sectors, including financial advisors, insurance brokers, accountants, and attorneys. Despite their best efforts, these professionals may be held liable for negligence or inadequate performance when providing financial or legal advice.

In the financial services sector, a professional is required to carry out errors and omissions insurance if their advice leads to the purchase of an investment or insurance product. For instance, accountants may be held liable for negligently advising a client on tax issues that led to a fine or additional taxes.

In the medical profession, professional indemnity insurance is required in the form of malpractice insurance. Medical professionals are protected by malpractice insurance from legal actions brought by patients who suffer physical or mental harm as a result of their negligence.

In addition to an indemnity claim, indemnity insurance also covers court fees, costs, and settlements.

Indemnity insurance is frequently bought by executives to safeguard their deferred compensation plans from litigation or bankruptcies. Due to their vulnerability to claims of failure to perform, other professions like contractors, consultants, and maintenance specialists carry indemnity insurance as a matter of course.

Types of indemnity insurance

  1. Malpractice insurance: It protects medical professionals from legal action. 
  2. Errors and omissions (E&O) insurance: It protects individuals and companies from claims of negligence, misrepresentation, errors and omissions in services. 
  3. Directors and officers (D&O) insurance: It protects the personal assets of directors and officers in the event that a third party sues them for their management of a company.

Features of indemnity insurance

  1. It covers civil cases in which a client of a service provider seeks damages or other compensation from the service provider. 
  2. Compensation, settlements or damages, legal costs, and run-off coverage are all included in its scope of coverage. 
  3. Indemnity insurance is available to service providers working in the fields of medicine, health, finance, accounting, law, and construction.
  4. The business incurred legal costs (court and lawyer fees) and settlements in defending the claimant’s indemnity lawsuit; these costs were paid for by the insurance. 
  5. The insured must continue to pay premiums to the insurance company regularly to receive the benefits of the insurance policy, which is in effect until it expires. 
  6. The insurance may occasionally include a policy with an endorsement that extends protection to certain acts that take place during the policy’s term, even after the policy’s expiration date. 
  7. Cases that fall under the indemnity insurance definition are low risk, but they can still be expensive if they happen.

Life insurance versus indemnity insurance

Life insurance is merely a contract to pay a specific amount of money in the event of a person’s death (or upon maturity), considering periodic payments of a specific amount. The insured merely pays the premium to the insurer to secure a specific sum payable to him or his representatives in case of death at regular intervals. Life insurance and indemnity insurance are very similar to one another and work on the same principles of putting the party who suffered a loss or injury back in their original position. However, life insurance and indemnity have key differences.

Policies offering indemnity and life insurance provide coverage for losses to an insured party in exchange for premiums up to a predetermined amount. However, when an insured party passes away, life insurance pays out a lump sum to the chosen beneficiaries. In contrast to a contract of indemnity, the payout, known as a death benefit, is the full amount of the policy rather than the sum of the actual claims.

Life insurance does not relate to a contract of indemnity because the insurer only agrees to pay the sum assured in the event of the insured’s death or maturity rather than making a promise to compensate the insured for any losses. A life insurance policy is not an indemnity because it is only a contract to pay a predetermined amount, known as the “sum assured,” in the event of death. The insured pays the insurer the premium to ensure that a certain amount will be paid to him or his heirs in the event of his death. Since the loss resulting from death cannot be quantified in terms of money, there is no inquiry into indemnification in such a case.

What is hospital indemnity insurance

One of the best defences against both anticipated and unforeseen medical costs is health insurance. Some people base their plan selection on the cost of the premiums, while others are more focused on the coverage. Indemnity insurance plans are types of medical insurance in which the insurer pays or reimburses the actual medical expenses incurred. A person’s or his family’s financial security shouldn’t be a concern when it comes to their health in the event of unexpected or lengthy hospital stays. Hospital indemnity insurance is useful because it prioritises patient recovery over medical expenses. 

Hospital indemnity insurance helps cover hospital stay costs as a supplement to a person’s primary health insurance.  Depending on the plan, hospital indemnity insurance provides cash payments to assist a person in covering any additional costs that might arise while they are recovering. Usually, insurance policies pay according to how many days a patient is hospitalised. A patient can still receive payments from their hospital indemnity insurance plan for supplemental costs incurred while recovering even if their medical insurance covers the majority of their hospitalisation.

Benefits of hospital indemnity insurance 

  • Wide coverage: A hospital indemnity plan may be an all-inclusive medical insurance plan or a standard health insurance plan. Further, it can also be an individual plan, a family-floater plan, or a senior citizen plan. Depending on the insurance provider and the specific policy a person chooses, the actual scope, extent, and nature of coverage offered under an indemnity insurance plan will differ.
  • An extensive network of cashless hospitals: For hassle-free cashless care, health insurance companies that include indemnity benefits in their plans collaborate with a wide network of hospitals. For instance, Tata AIG’s Medicare line of medical insurance plans provides cashless hospitalisation and treatment with indemnity benefits through a vast network of more than 7200 hospitals.
  • Low cost of purchase: The most effective hospital indemnity insurance packages include a deductible or co-payment option, allowing the policy holder to decide how much of the claim will come out of their own pockets. The hospital’s liability decreases with a higher deductible or co-payment. By charging low premiums, it transfers this benefit to the policyholder. As a result, hospital indemnity plans enable policyholders to select a policy that is within their means while also lowering their overall premium expenditure.

Fixed indemnity insurance plan

Any medical expenses incurred by the policyholder are covered by a fixed indemnity insurance plan, which provides health insurance. These plans will reimburse the policyholder for any actual costs they incurred while they were hospitalised, up to the amount insured under the policy. For instance, if a policyholder selects a sum insured of Rs. 4 lakh and is given a hospitalisation bill for Rs. 1.5 lakh, the insurance provider will reimburse the policyholder with Rs. 1.5 lakh. During the policy term, the remaining funds will be held in reserve for a subsequent claim. 

An indemnity plan requires the policyholder to submit hospital bills outlining the costs incurred throughout the hospital stay. The well-known health insurance product “Mediclaim” is an example of an indemnity insurance plan. Plans for fixed indemnity insurance generally have deductibles, which are fixed amounts that have been predetermined. For hospitalisation costs, the policyholder is required to pay the deductible amount, and the insurance company will cover the balance up to the sum insured amount. In some indemnity-based plans, there is no deductible; instead, the insurer covers the entire cost of the hospitalisation expense (up to the sum insured limit).

Fixed indemnity insurance plans, which normally have connections to several partner hospitals and medical facilities, offer flexibility when it comes to hospitals and healthcare professionals. Even though medical expenses are covered, policyholders can select the hospital or clinic they want to go to based on the kind of treatment they need. These plans also cover a variety of illnesses and treatments, as well as the full cost of hospitalisation. While most hospitalisation costs are covered by fixed indemnity-insurance plans, there are some that are not. They include the price of medications and post-operative care. Since indemnity plans have deductibles (unless otherwise specified), the policyholder is responsible for a portion of the costs.

Professional indemnity insurance

As the world became a global village, new doors for professional fields in India were opened by the introduction of liberalisation, privatisation, and globalisation policies in 1991. With the addition of foreign players, every service transaction has a high monetary value. In India, the “Professional Indemnity Insurance” chapter became well-known as a result of the massive increase in risk associated with the liability for professional services. Professional indemnity insurance (PI) secures the insured professional against financial loss resulting from the professional’s negligent act, mistake, or omission that harms the client or a third party.

It generally takes the form of a contract between the professional, who is the insured party, and the insurance provider, who is the insuring party. It serves as security for both professionals and their clients, protecting them from a variety of financial losses. It includes professionals like lawyers, doctors, accountants, management consultants, interior designers, architects, and brokers.

Origin and importance

Professional liability insurance has received enormous significance in the aftermath of the important decision in Hedley Byrne and Co. Ltd. v. Heller and Partners Ltd. (1963). It relates to a third party’s financial loss brought on by a professional’s incautious misstatement. Hedley, an advertising agency, was interested in learning more about the credit standing of EasiPower Ltd., one of their clients. They contacted Heller Ltd.’s bank to obtain a report on their client’s financial situation, which appeared to be in good shape. After the company’s liquidation, Hedley sued Heller Ltd. for negligently disseminating false information. Heller Ltd. argued that liability was not admitted and that they were not owed a duty of care.

The court determined that their relationship was sufficiently proximate and that Heller Ltd.. had a duty of care to take when providing the information that Hedley Ltd. relied upon. As a result, Heller Ltd. was held liable for its carelessness. After this important ruling, a third party could file a lawsuit against any individual or entity for negligence in giving advice and be awarded damages even if there was no contractual arrangement between the third party and the professional in question.

This decision broadened the market for professional liability insurance globally and completely changed the way that the US views professional liability. The application of required professional indemnity insurance has been broadened as a result of this legal ruling in many different nations. For example, lawyers are required to purchase lawyers’ liability insurance in the USA, Germany, Belgium, Denmark, England, Australia, and Singapore.

Although professional liability insurance (PLI) is not specifically regulated in India by statutes or laws, an indemnity contract is defined as “A contract by which one party promises to save the other from loss caused to him by the conduct of the promisor himself, or by the conduct of any other person” in the Indian Contract Act, 1872. Similarly, when professionals don’t use the care that is expected of them while providing their services, they are exempt from liability under professional liability insurance. Depending on the nature of the profession, a minimum standard of care equivalent to that of a reasonably prudent person is required.

The term “professional liability insurance” is addressed by the Companies (Indian Accounting Standards) Rules, 2015 in India. In accordance with the Insurance Regulatory and Development Authority of India (Insurance Brokers) Regulations, 2018, the insurance broker is also required to buy a policy for professional indemnity insurance. The concept of professional liability insurance was primarily developed in the United States, and it is not very well known in India. It gained momentum after professional liability laws in the US took effect, requiring them to acquire indemnity policies to protect themselves from liabilities.

Coverage

Legal responsibility for the financial loss incurred by the client as a result of a breach of professional duty is covered by professional indemnity insurance. The amount of the insurance claim includes both the damages that are granted to the insured party and the costs and expenses incurred in defending the insured. The majority of civil liability listed in the insurance policy is protected. The coverage can go as far as group insurance, such as a law firm purchasing group professional indemnity insurance to protect all employees from any claims. Before submitting an insurance claim for professional liability, the loss or damage must have occurred.

Types of professional liability insurance

  • Claim-based: It provides coverage to the insured party for any occurrence during the policy period, and a claim is also made while the insurance is in effect. In this case, the insurance policy’s inception date—also known as the retroactive date—becomes its official date. Every year when the policy is renewed, the date stays the same.
  • Occurrence-based: It offers coverage for occurrences that took place throughout the course of the policy year, regardless of when the claim is made. For the duration of the insurance policy, it offers distinct coverage every year. Whether the policy was in effect at the time the claim was filed is irrelevant. It only demands that the policy was in effect at the time the alleged events took place. As a result, occurrence-based insurance is generally more expensive than claim-based insurance.

Benefits of professional indemnity insurance

The benefits of acquiring professional indemnity insurance include the following:

  1. Financial protection from lawsuits: If a person has professional indemnity insurance, the insurer will cover all defence costs, which can prevent financial losses from lawsuits from disrupting his business. Errors and omissions insurance covers defence expenses like legal expenses, court costs, the cost of filing legal documents, etc. In case of legal repercussions resulting from error and omission claims, it offers financial protection.
  2. Peace of mind: More assurance when providing professional services results in more successful outcomes. It is very stressful and expensive for an individual and their organisation if they are held accountable or blamed for the client’s financial or reputational loss as a result of their advice or consultation. However, professional indemnity insurance lends a helping hand in this situation and manages all of his stress by providing the necessary financial assistance.
  3. Increases credibility: A person’s reputation and brand image are improved by professional indemnity insurance. It gives his clients and investors the peace of mind that whatever professional services they are providing, professional indemnity insurance is there to offer solid support if any discrepancies occur. A professional is responsible for the work he performs, and if he has professional indemnity insurance, he gives his client peace of mind while working with him.
  4. Professional reputation protection: Professional indemnity insurance helps in defending the professional reputation in the event of a claim, much like credibility. If claims are not handled promptly and competently, they can instantly ruin a company’s reputation. The insurance makes sure the company hires the best legal team and provides guidance on how to handle the claim. No insurance would be helpful if a company’s negligence actions were intentional and the business was at fault, even though this is the case if the business’ negligence were accidental.
  5. Saves time: Another advantage of professional indemnity insurance is that it can prevent a complete pause and save time. Professional indemnity insurance enables businesses and professionals to carry on with their operations. Further, insurance facilitates the handling of claims and offers qualified assistance to speed up the procedure. While handling claims or lawsuits is necessary, this does not mean that other tasks should be put on hold. The insurance enables a person to proceed from the claim without suffering any harm to your company.
  6. Additional benefits: To improve its efficacy and guarantee that it covers all potential legal claims, the Professional Indemnity Insurance Policy can be extended to cover defamation, document loss, dishonest libel and slander. These advantages guarantee a professional’s total protection as they work to account for all foreseeable risks.

Exclusions in professional indemnity insurance 

The following are a few of the general exclusions of professional indemnity insurance

  1. If while performing the service, the insured is under the influence of drugs or alcohol.
  2. Legal responsibility arises from wrongdoing that results in personal injuries, such as wrongful detention, false arrest, slander, libel, or defamation.
  3. Any loss resulting from hostilities, war, invasion, an act of a foreign enemy, civil war, insurrection, rebellion, revolution, mutiny, military or usurped power, riot, strike, lockout, military or popular uprising, civil commotion, martial law, or looting, sacking, or pillaging in connection therewith, confiscation, or destruction by any governmental or public authority, whether or not war has been declared.
  4. Fines, penalties (civil, criminal, or contractual), punitive damages, exemplary damages, treble damages, or any other damages resulting from the multiplication of, or excess of, compensatory damages ordered by a public authority are not insured by the law under which the policy is construed.
  5. Any claim based on, resulting from or based on any patent or trade secret infringement.

List of companies providing professional indemnity insurance in India

  1. New India Insurance: To provide professionals with financial security in the event of legal liability, New India Insurance offers a Professional Liability Insurance policy.  The same only applies to civil liability claims. If the policyholder makes a mistake or is negligent and this results in injury to a third party, their death, or third-party property damage, legal liability may result. There is an option to use group policies.
  2. Reliance General Insurance Company: Reliance Professional Indemnity Insurance Plan is very well-liked because of its quick documentation and extensive coverage. Professional service providers’ or professionals’ services are covered for all legal fees related to disputes arising from those services. Reliance’s Professional Indemnity Insurance also permits a mid-term decrease and increase in the sum insured.
  3. United India Insurance General Insurance Company: The United India Insurance Company provides professional indemnity insurance policies to individuals such as lawyers, certified public accountants, architects, engineers, and doctors, as well as to businesses such as clinics and hospitals. The insurance company’s policy has a 12-month term.
  4. ICICI Lombard General Insurance Company: The ICICI, Lombard General Insurance Company’s professional indemnity insurance offers protection against a variety of “professional indemnity risks” to which a business or a professional may be exposed. There is additionally distinct coverage created specifically for medical professionals and facilities.
  5. TATA AIG General Insurance Company: The professional indemnity insurance cover from TATA AIG offers protection from legal liabilities to professionals. A person can bring lawsuits for negligence, mistakes, or oversights made while providing professional services. Law firms, media outlets, consulting firms, financial institutions, IT firms, business process outsourcing firms, and other professionals are also eligible for the public liability insurance policy.
  6. Bajaj Allianz General Insurance Company: Comprehensive protection against a variety of professional risks is provided by the indemnity insurance cover provided by Bajaj Allianz General Insurance Company. These policies are also available as group policies.

Conclusion

As long as the insurance policy’s limiting amount is not exceeded, indemnity insurance pays the policies’ beneficiaries for their actual economic losses. Usually, before receiving compensation, the insured must determine the amount of the loss. Even if the face amount of the policy is higher, the amount that can be recovered is only up to the amount of the loss that can be proven. Contrastingly, in the case of life insurance, the size of the beneficiary’s financial loss is unimportant. If the person whose life is insured dies for reasons not covered by the policy, the insurer is obligated to pay the beneficiary the full amount of the policy.

The majority of business interruption insurance policies include an Extended Period of Indemnity Endorsement, which extends coverage beyond the period needed to physically restore the property. This provision pays for additional costs that enable the business to prosper once more and aid in bringing revenues back to pre-loss levels.

Frequently Asked Questions (FAQs)

How much is the cost of professional liability insurance? 

Professional liability insurance premiums usually differ from one insurance provider to another. This is because personal indemnity cover is available to businesses across numerous sectors and industries, making it challenging to establish a fixed insurance rate. There cannot be cost parity because the policy is not universal for all types of businesses that avail themselves of the coverage.

Is professional indemnity insurance compulsory?

Professional indemnity insurance is not compulsory in India. Professionals, on the other hand, should consider getting this policy.

What is civil liability?

In the context of indemnity insurance, civil liability is the sum that a person is required to pay for potential damages as a result of a lawsuit.

References

  1. https://www.investopedia.com/terms/i/indemnity_insurance.asp
  2. https://www.latestlaws.com/articles/analysis-of-professional-indemnity-insurance-in-india/
  3. https://www.turtlemint.com/general-insurance/articles/what-is-professional-liability-indemnity-insurance/
  4. https://www.bankbazaar.com/miscellaneous-insurance/professional-liability-insurance.html
  5. https://www.policybazaar.com/corporate-insurance/articles/what-is-professional-indemnity-insurance/ 
  6. https://www.policybazaar.com/commercial-insurance/professional-indemnity-insurance/

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Section 188 of the Code of Criminal Procedure

By
Rachit Garg
-
0

This article has been written by Mudit Gupta, currently pursuing a BBA. LL.B. (Hons.) from the University of Mumbai Law Academy. This article discusses all aspects of Section 188 of the Code of Criminal Procedure, its relation with extradition laws, as well as jurisdictional questions in cases of offences committed by the NRIs.

It has been published by Rachit Garg.

Introduction

A Bench of Calcutta High Court in the case of Hriday Nath Roy v. Ram Chandra (1921), gave an apt definition of jurisdiction-

“the power to enquire into the facts, to apply the law, to pronounce the judgement and to carry it into execution”

Whenever a crime happens and it moves to the stage of the trial, the first question that needs to be answered is which court will have jurisdiction over the concerned matter. Without having an answer to this question, no legal remedy can be availed of, as the trial cannot begin. To answer this question and to perfectly apply the law of the land where the suit related to the criminal offence should be tried, Chapter-XIII was added to the Code of Criminal Procedure, 1973, in the original draft.

Before the trial commences, the court’s jurisdiction must be clarified so that the accused is not tried for the same offence twice. The provisions provided under Section 188 and Section 189 are two provisions that clarify this doubt about extra-territorial jurisdiction.

In this article, all the provisions of the Code of Criminal Procedure, 1983 related to trial and inquiry where extra-territorial jurisdiction is involved are discussed along with the viewpoint of the English judiciary, the jurisdiction of the International Criminal Court and relevance in subject to an extradition treaty in detail.

Chapter-XIII of the Criminal Procedure Code

The jurisdiction of the criminal courts in inquiry as well as the trial is dealt with by Chapter-XIII of the Code of Criminal Procedure, 1973. It clearly specifies the ground rules regarding the jurisdiction through which a Court can take cognizance of a particular criminal incident.

Most of the provisions of the Chapter talk about matters which are concerned with activities only involving Indian jurisdiction but Section 188 and Section 189 specifically lays down the provisions where foreign intervention is involved one way or the other. Whether the intervention is regarding the trial or the evidence which are needed to be presented before the Court of law, these two provisions of law come in handy for the disposal of the case. 

In this article, we will talk about these provisions and other related topics in detail. The main reason behind these two provisions was the doctrine of double jeopardy. This doctrine provides a legal defence to an accused and protects him/her from being tried again and again for the same accusations and facts after a lawful acquittal or conviction. This doctrine does not apply in the case of appeals. 

What does Section 188 talk about 

Now let’s see what the details of the proviso given in the Code of Criminal procedure, 1973 in relation with the criminal offences committed outside India i.e., Section 188 

Section 188 provides for the trial and inquiry when an extra-territorial jurisdiction comes into play. The language of the provision says that-

When an offence is committed outside India—

  1. by a citizen of India, whether on the high seas or elsewhere; or 
  2. by a person, not being such a citizen, on any ship or aircraft registered in India, 

he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found.

In addition to this, one more point is also added to this provision that is, notwithstanding anything in any of the preceding sections of this Chapter which is Chapter-XIII, no such offence shall be inquired into or tried in India except with the prior sanction of the Central Government. This means that if any criminal offence is committed outside the territorial jurisdiction of India, by a citizen of India, then in that case, the trial and inquiry for the same offence will be conducted within the jurisdiction of India. Also, if someone who is not an Indian citizen commits a criminal offence on any ship or aircraft that is registered in India, then also the case will be tried by the courts situated in India as per the laws of the country.

The only condition in both of these cases is that for such a trial and inquiry, a sanction is required from the side of the Central Government. Without such sanction, a trial or inquiry cannot proceed.

What does Section 189 talk about

Now let’s talk about Section 189 of the legislation. This provision gives power to the Central Government regarding the receipt of evidence for criminal offences that are committed outside the territory of India. This provision extends the power to inquire about an offence as per Section 188 of the Code. As per the language of this Section in the Code-

The Central Government may, if it thinks fit, direct that copies of depositions made or exhibits produced before a judicial officer in or for that territory or before a diplomatic or consular representative of India in or for that territory shall be received as evidence by the court holding such an inquiry or trial in any case in which such a court might issue a commission for taking evidence as to the matters to which such depositions or exhibits relate. 

Relevance of these provisions in case of NRIs

Before knowing about the relevance and applicability of these provisions to NRIs, let’s first understand who is an NRI. The Income Tax Act, 1961, provides the criteria for an individual to be considered or not considered an Indian resident. The status of a person on the basis of residency or non-residency depends on the period of his/her stay in India. The period of stay is to be counted in the number of days for each financial year that shall commence from 1st April to 31st March. An individual shall be considered an Indian resident if the individual satisfies the conditions laid out in Section 6 of the Income Tax Act:

  1. The individual has been in India for a period of 182 days for the previous year.
  2. The individual has been in India for a period of total 365 days for a total of four years preceding the year in India and for a period of 60 days or more in that particular year when in India.

Any person who does not fulfil the conditions mentioned above is treated or considered as  an NRI in that previous year.

Now let’s understand the relevance and applicability of these provisions to NRIs. The term “non-residents of India” itself defines that they are not residents in the territorial jurisdiction of the country, but it does not deny them the right to be citizens of the country. As they are not residing in India but are holding Indian citizenship, any criminal offence committed by them will be put on investigation and trial as per the laws of India and in the courts situated in the territory of India. But as it is mentioned in the Provision, sanction from the Central Government is the only requirement to start the trial for any such offences they committed outside India’s territorial jurisdiction. The sanction of the Central Government of India shall be required when a criminal action is to be initiated at the trial stage and not before. Hence, the trial cannot proceed beyond the stage of cognizance without the approval of the Central Government.

English judiciary viewpoint regarding extra-territorial jurisdiction

In Reg. v. Benito Lopez (1858), the Court while dealing with the question of the jurisdiction where foreigners are travelling in England-borne ships on the high seas, interpreted the word ’found’ as a finding of the offenders in provision under consideration in this case, which was to the following effect:

“If any person being a British subject charged with having committed any crime or offence on board any British ship on the high seas, or in any foreign port or harbour; or if any person, not being a British subject, charged with having committed any crime or offence on board any British ship on the high seas, is found within the jurisdiction of any court of justice in Her Majesty’s dominions, which would have cognizance of such crime or offence if committed within the limits of its ordinary jurisdiction, such court shall have jurisdiction to hear and try the case as if such crime or offence had been committed within such limits: provided that nothing contained in this section shall be construed to alter or interfere with the Act 12 & 13 Vict. C. 96.”

The Court also pointed out that the word “found” is used in its widest sense and was inserted into the legislation with an intent to include all cases by giving jurisdiction to any Court in whose local jurisdiction the person was found at the time of trial. The objective of this provision was to resolve any issue related to local jurisdiction. Lord Campbell, Chief Justice, opined that “if the prisoner was brought within the jurisdiction of the court against his will, then in that case,  the same cannot be said to have been found there as per the interpretation of the Act.” He also held that the meaning of the expression “he may be found,” as per the interpretation of the Act, is related to any place where he is actually present but not to where he/she was brought against his/her will.

Jurisdiction of International Criminal Court

The preamble of the Rome Statute gives the duty to every State to exercise jurisdiction over any and every criminal offence committed within its jurisdiction. But when two States claim to exercise their jurisdiction over a particular offence, the Rome Statute of the International Criminal Court attributes the main role to the national status of the accused. It provides that unless the situation in which the crime was committed gets referred to the Court by the Security Council as per the provisions of Chapter VII of the United Nations Charter, the Court may exercise its jurisdiction in two cases-

  1. If the countries which are party to the conflict are parties to the Statute; or
  2. Have accepted the jurisdiction of the Court.

These are the conditions that give the International Criminal Court the authority to proceed with the trial and investigation of a particular case.

Extradition treaty 

Now let’s talk about the role of these provisions in the context of extradition treaties. To understand completely, let’s first understand what extradition actually is. In simple terms, extradition is a process by which one jurisdiction hands over a person to another jurisdiction, where he/she (the fugitive offender) is charged with criminal offences as per the laws that are applicable in that jurisdiction. 

In India, the extradition of a fugitive is governed by the Extradition Act, 1962. The applicability of the extradition laws is completely dependent on the treaties and agreements signed by India with other countries.

As given in the provision of Section 188 of the Code of Criminal Procedure, 1973, the Central Government sanction is necessary to proceed with the trial. The Central Government may refuse to extradite an offender if he/she has already been tried in the courts of the Indian jurisdiction for an offence and is wanted for a trial of the same offence in a foreign country. The government may also refuse the trial of an accused in the Indian criminal courts who has already been tried in a foreign country for a particular offence. The reason behind this approach by the Central Government is the doctrine of “double jeopardy”, as it will defeat the very purpose of fair and equitable justice. 

In these cases, the diplomatic relations of the involved countries play a vital role in decisions regarding other aspects of the trial and inquiry of the offence.

Major judgements

Sanoop v. State of Kerala (2018)

This is one of the first cases in India in which the ambit of inquiry with reference to Section 188 of the Criminal Procedure Code was discussed. In this case, the Court dealt with a matter where the crime allegedly occurred in Dubai. The Court in this case held that the arrest and detention of an accused in such cases where the offence has been committed outside India is not legally permissible unless the sanction of the Central Government is granted. 

The Court, in this case, broadened the interpretation of the word “inquiry.” The Court, while explaining the interpretation as per the proviso of Section 188 of the Code of Civil procedure, 1908, said that stages of arrest and detention will also need sanction from the Central Government

Nerella Chiranjeevi Arun Kumar v. State of Andhra Pradesh (2021)

In this case, the bench of the Supreme Court held that, as per the provision of Section 188 of the Code of Criminal Procedure, 1973, the trial of a criminal case against an Indian citizen for the crimes committed by him/her and having their place of action outside of India, cannot begin without the approval of the Central Government. At the time of cognizance, however, such prior sanction is not required. It is required only for the stages after the court has taken cognizance of the offence.

The reasoning for the same was-

  1. The investigation is the first stage that determines the relevance of the subsequent stages of the trial as in criminal offences evidence plays a vital role and they might not be available if the investigation is delayed.
  2. These provisions remove the unnecessary burden from the shoulders of the Central Government, which might not have been the case if the Central Government had to make decisions regarding the sanctions even for the investigation of criminal offences.

Sartaj Khan v. State of Uttarakhand (2022)

In this case, the Supreme Court held that the sanction of the Central Government under Section 188 of the Code of Criminal Procedure, 1973, for the trial of an offence committed outside India, is only necessary when the entire offence was committed outside India. If some parts of the offence were committed within the territorial jurisdiction of India and other parts were committed outside India, then in that case, no sanction is required at any stage for the trial and inquiry of such offence.

Relevance of this provision with a recent case

On 29th May of this year, a renowned politician and singer in Punjab, Siddhu Moosewala was killed by the Lawrence Bishnoi gang (as per the accusations). As Lawrence Bishnoi himself is currently in Tihar Jail, one other member of the gang, Goldy Brar, allegedly planned the murder of Siddhu Moosewala while sitting in Canada. Now he has been arrested in the USA as he ran away from Canada to the USA. As India and the USA have an extradition treaty, he will soon be brought to India as he is a wanted criminal in Indian jurisdiction and will be tried for the murder of Siddhu Moosewala because the criminal activity has been done on the jurisdictional land of India. As per Section 188 of the Code of Criminal Procedure, 1973, he will be tried in Indian Courts as the jurisdiction, in this case, will fall in India.

Conclusion

A jurisdictional issue in itself can play a pivotal role in deciding the fate of a particular matter. This is the first and foremost question, which needs an answer even before the institution of the suit. Thus, complete clarity about the jurisdiction and prevailing laws is essential when a case goes into the trial stage. This article is an attempt to gather and synthesise most of the information that relates to the issue of trial and investigation in cases where extraterritorial jurisdictions are involved, for which the provisions are given under Section 188 and Section 189 of the Code of Criminal Procedure, 1973. 

Frequently Asked Questions (FAQs)

  1. Can there be more than two jurisdictions involved in a particular case?

Yes, there can be more than two jurisdictions involved in a particular case.

  1. How many countries have an extradition treaty with India?

India currently has an extradition agreement with 48 countries.

References

  1. https://www.jstor.org/stable/43949879?read-now=1#page_scan_tab_contents
  2. https://www.jstor.org/stable/2668495?read-now=1#page_scan_tab_contents
  3. https://www.jstor.org/stable/45148581?read-now=1#page_scan_tab_contents
  4. https://www.jstor.org/stable/758867?read-now=1&seq=1#page_scan_tab_contents
  5. https://www.barandbench.com/news/litigation/sanction-under-section-188-crpc-necessary-only-if-entire-offence-is-committed-outside-india-supreme-court
  6. https://www.scconline.com/blog/post/2021/06/02/principles-with-respect-to-sanction-at-various-stages-when-offence-is-alleged-to-be-committed-beyond-the-jurisdiction-of-indian-territory-a-critical-appraisal-of-proviso-to-section-188-crpc/
  7. https://www.mondaq.com/crime/963584/criminal-action-against-nri39s-in-republic-of-india
  8. https://www.livelaw.in/top-stories/supreme-court-section-188-crpc-part-offence-sanction-sartaj-khan-vs-state-of-uttarakhand-2022-livelaw-sc-321-195098?infinitescroll=1
  9. https://main.sci.gov.in/jonew/judis/26607.pdf
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Section 392 IPC

By
Sneha Mahawar
-
0
Section 120A

This article is written by Sukhmandeep Singh, a law student at the Guru Nanak Dev University, Amritsar. This article seeks to explain the concept of robbery and its punishment. This article provides a summary of Section 392 IPC, punishment provisions, essential aspects, and relevant case law.

This article has been published by Sneha Mahawar.​​ 

Introduction

Robbery is defined by Black’s Law Dictionary as the felonious act of taking personal property in the possession of another from his person or immediate presence against his will, accomplished using force and fear. It means it is an unlawful act of removing a person’s personal property from the possession of another or immediate presence against that person’s consent by employing force and threat. “Robbery” is an aggravated form of theft or extortion. The primary distinguishing characteristic of the crime of robbery is that the offender intentionally causes or seeks to cause instant injury, instant death, or immediate unlawful restraint while committing theft or while taking away or attempting to carry away the stolen goods.

Robbers nowadays are presented as professional criminals in movies and television, using assault weaponry on cashiers and banker managers and might also do car theft of individuals at the gunpoint. While these scenarios depict robberies, most state laws define robbery in a different manner in order to include a wide variety of activities that many people would consider much less serious crimes than robbery. For example, a person who drags a college student heading home from a bar and grabs that student’s cell phone has committed the crime of robbery. In this case, as theft is done along with the act of dragging the student, the offence is robbery.

In the early 2010s, it was reported that over a quarter-million robberies happened in the United States. This is a steep 25% decrease from the more than one million robberies that happened each year for much of the 1990s. On the other hand, India’s robbery rate has increased by 6.69% per year, from 1.6 cases per 1 lakh population in 2004 to 2.8 cases per 1 lakh population in 2013.

What is robbery 

Robbery isn’t defined in the Indian Penal Code (IPC) on its own; rather, it is defined in terms of theft and extortion in Section 390 IPC. According to this section, theft is robbery when, in order to commit the theft, while committing the theft, or while carrying away or attempting to carry away property obtained through the theft, the offender voluntarily causes or attempts to cause death, harm, or wrongful restraint to any person, or induces fear of instant death, harm, or wrongful restraint in another person. The theft is then referred to as robbery. It simply means when any person commits theft or while trying to commit theft, he/ she voluntarily causes harm, death or wrongfully restraint such a person on whom he wants to commit theft or a related person. Then this act is known as robbery.

This section also tells us about when extortion would be labelled as robbery. Extortion, according to Section 383 IPC is an act that is committed by anyone who intentionally puts another person in fear of some harm and then dishonestly induces that person to deliver to another person any property or valuable security or anything signed or sealed that can be converted into a valuable security. If the following happens, then that act is extortion. But that act becomes robbery when the offender is in the presence of the victim and puts that victim in fear at the time of the extortion and then commits the extortion by putting that person in some kind of fear whose result would be instant death, instant hurt or instant wrongful restraint to that victim or to some other person and induces the victim which is put in fear to deliver the goods to himself or any other person. Then extortion is known as robbery.

An offender is said to be present if he is sufficiently close in order to put the other person in fear of immediate death, immediate harm, or immediate wrongful restraint on him/ her, or any other person. For extortion to become robbery, it is important that the offender be present at the time of offence. If the person is not sufficiently present, then there might not be actual fear in the mind of the victim. 

Illustrations-

  1. A approaches Z on the high roads, points a pistol towards Z and demands his purse. As a result, Z gives up his purse. A has extorted the purse from Z by putting him in fear of immediate harm and committing extortion in his presence. As a result, A has committed robbery.
  2. On the highway, A meets G and G’s child. A pulls the child towards him and threatens to throw the child off a cliff unless G gives his purse to A. As a result, G hands over his purse. A has extorted the purse from Z by making G fearful of causing immediate harm to the child who is present. As a result, A has committed robbery on Z.

As a result, we can conclude that robbery is an aggravated type of either theft, extortion, or both. The essence of robbery is the existence of imminent violence or fear for an individual.

Essential features of robbery

When the following essentials/conditions are met, theft becomes robbery:

  • When an offender causes or attempts to cause death, wrongful restraint, or bodily harm while knowing the nature of his/ her acts or having the knowledge what he/ she is doing or
  • Offender causes fear in minds of the victim about immediate death, immediate hurt or immediate wrongful restraint.
  • If the offender does any of the above acts while committing theft or attempting to commit theft, or while carrying stolen items or attempting to carry stolen property.

Then that act of theft is said to be “robbery.”

In the case of Venugopal v. State of Karnataka, the appellants allegedly stopped and intercepted the victim and while doing the same, robbed her of her gold along with the cash she was carrying by threatening her with a knife. The evidence with the victim, her husband, and the car used convincingly showed the appellants’ participation in the crime of robbery. In the instant case, the offence was committed at night on a public road, not a highway. As a result, the appellants conviction was deemed to be appropriate.

In the following case, it was also observed that robbery is nothing but an aggravated form of theft or extortion. In this case, aggravation is in the use of violence, hard, death, or restraint. The court observed and ruled that the violence must be committed during the course of the theft and not after the theft has already been done. Along with this, the court also ruled that violence is not essential to be done in actuality. Attempting to commit violence is sufficient to get an offence covered under robbery.

Important note:

  • It is necessary that death, restraint or harm must be caused in order to fulfil the goals as stated in the essentials of the offence. However, if the victim simply causes hurt in order to escape the theft then that hurt cannot convert theft into the offence of robbery. It indicates that the mere use of violence does not change a theft into a robbery unless the violence is used for one of the above-mentioned goals. Thus, where the accused left back the stolen stuff and threw stones at the person following him in order to prevent them from continuing their pursuits, in this case, the accused will be guilty of stealing, which means theft rather than robbery.
  • The words ‘voluntarily causes’ are important in this section since causing incidental injury does not change the offence to robbery. The harm must be caused voluntarily,  for example, if the accused while stealing a nose ring for a woman injured her in the nostril and caused her blood to flow then he would be guilty of robbery.
  • Valuable security under Section 30, IPC means document or pretends to be a document with a help of whom any legal right could be formed, extended, transferred, restricted, extinguished, or released, or by which any person admits that he has some sort of legal liability, or that document also tell that that person does not have a specific legal right.

Illustration-

In one case, wristwatch of D was robbed by A in a railway compartment as the train arrived near a station. After that act of robbery, D raised an alert. Due to the raising of the alert, B slapped D, and then both A and B got out of the compartment and escaped. Soon after this incident, both of them were found drinking tea from a tea stall that was near the railway station. Under this case, both A and B would be found guilty under Section 392 of the IPC read with Section 34 of the IPC because they caused harm to D in furtherance of their common intention to commit theft as B assisted D in carrying away the stolen items.

When the following essentials/conditions are met, extortion becomes robbery:

  • When there is an offender who commits extortion by putting another person in fear of immediate death, immediate harm or of immediate wrongful restraint.
  • The offender then induces the same fearful person to deliver the property at that exact moment.
  • The offender in the above act must be in presence of such a fearful person at the time of extortion.

Then that act of extortion is known as robbery. 

In order to simplify these essentials, we can say that for extortion to become robbery, the criminal must be present before the person who is threatened with injury. This section’s explanation states that a person is considered to be present if he is close enough to create a fear of instant death, instant harm, or instant unlawful restraint. Extortion becomes robbery if the offender, due to his presence, is capable of carrying out this threat immediately. That is, the victim gives away the property in order to protect himself or any related person who is naturally interested in the person robbed with the imminent threat of injury, and so, in order to avoid injury to that person, he delivers the goods demanded by the criminal.

Illustrations-

A pulls out a knife and points it at B, telling C that if she does not give over her gold pendant, he would kill his son. C hands over the pendent to A. A commits robbery because he extorts the pendant by placing B’s life at immediate risk.

A police officer takes an ornament from ‘B’ by creating fear in him that he will be arrested immediately and not be released for months. Under this clause, the police officer is guilty of robbery.

How is robbery different from theft, extortion and dacoity

Robbery and theft

There are various differences between robbery and theft, which are mentioned below:

  • Theft is primarily a crime against property as no fear is caused whereas robbery is a crime against both property and humans as hurt or fear to hurt can be caused under robbery though both offences can be seen as similar in the sense that they both involve the unlawful taking of someone else’s property.
  • Theft is defined as the taking of property from the owner’s possession without the owner’s consent whereas robbery is an aggravated or enhanced form of theft; the use of force converts a theft offence into a robbery offence. 
  • Robbery is a more serious offence than theft and the offender is likely to face prison time. It is a crime against a human and it includes a violent aspect.
  • A victim is always present during a robbery. However, there is no such thing as a victim in theft; only the owner of the stolen property tends to suffer a wrongful loss of that property and may or may not be present during theft.
  • Theft can only be committed with regard to movable property whereas robbery can be committed with regard to both immovable and movable property.
  • The punishment for theft can range from three years in prison to a fine or both, whereas the punishment for robbery can range from ten years in prison and a fine.

Robbery and extortion

There are very minute differences between robbery and extortion. Robbery is only a subcategory of extortion. Both robbery and extortion have the same basic concept. 

  • In a robbery, the victim’s property or valuables are taken away without the victim’s consent whereas in extortion, the victim’s property or valuables are taken away with his consent, regardless of the victim being unwilling.
  • In a robbery, the victim faces an immediate physical threat whereas in extortion, the victim faces an immediate as well as future threat of many kinds such as loss of money, the life of a loved one, reputation and so on.
  • In the case of robbery, the criminal is punished under Section 392 IPC with rigorous imprisonment for a time period that may be extended up to 10 years and a fine and if the robbery is committed on any highway between sunset and sunrise then the imprisonment may extend up to 14 years. In case of extortion, a criminal is punished under Section 384 IPC with imprisonment for a term that may extend to 3 years or a fine or both.
  • The suit for robbery is triable in a court of the magistrate of the first class, whereas the claim for extortion is triable in any magistrate’s court.

Robbery and dacoity

Robbery and dacoity are both similar offences with few differences between them.

  • Robbery is an aggravated kind of theft or extortion in which there is a threat of death or serious bodily harm or wrongful restraint whereas dacoity is a type of robbery in which there are minimum members required that is at least five culprits required who worked together to accomplish the crime.
  • Section 392 of the IPC deals with the punishment for robbery, which is up to 10 years in prison and a fine whereas Section 395 of the IPC deals with the punishment for dacoity, which might extend to life imprisonment or up to 10 years in prison with a fine.
  • Robbery is only punished at the attempt and commission stage of the offence whereas dacoity is the only offence in the IPC that is punished at all stages of the offence which are intention, preparation, attempt and commission.
  • Robbery is tried before a Magistrate of the First Class whereas dacoity is tried before the Court of Session.
  • Robbery can be committed by 1 person but for the offence of dacoity minimum of 5 persons are required to take part in the offence.
  • Robbery is a less severe crime than dacoity since there is only one offender in a robbery but there are 5 or more in dacoity. As a larger group of persons may bring more harm to the victim, the crime of dacoity is regarded as more serious than robbery.

Summarization of the distinction between robbery, theft, extortion and dacoity

Basis of distinctionRobberyTheftExtortionDacoity
ConsentUnder this offence, the offender takes away the property without lawful consent. Robbery is also an aggravated type of theft or extortion.In theft, movable property is stolen without the owner’s consent.The person’s consent is gained unlawfully through coercion.There is no consent, or it was obtained unlawfully.
ForceForce under the offence of robbery may or may not be used. There is no element of coercion or force.Extortion is the use of force or coercion, with the victim being put in fear of harm to himself or others.Force may or may not be employed.
Number of offendersIt can be committed by one or more individuals.It can be committed by one or more individualsExtortion can be  committed by one or more individuals.To commit the crime of dacoity, at least five people must be present.
Subject matterRobbery can be committed against movable property, but it cannot be committed against immovable property unless it is in the form of extortion.Theft can be of moveable goods only.Extortion can be of movable as well as immovable property.Dacoity may be committed in relation to immovable property in the form of extortion, but not otherwise.
Element of fearThere is an element of fear present.There is no fear factor.There is an element of fear present.Dacoity contains an element of fear.
Delivery of propertyIf robbery is a form of theft, then there is no delivery of property; otherwise, there can be. The victim does not deliver goods.Property is being delivered through extortion.If a theft occurs during the act of dacoity, there is no delivery of property.
PunishmentRobbery is punishable by imprisonment for a term that may stretch to 10 years as well as a fine. If the robbery occurs on a highway between sunset and sunrise, the sentence may be increased to 14 years.In this case, the offender is sentenced to imprisonment of any kind for a period of up to 3 years or a fine or both.Extortion is punishable by imprisonment of any kind for a time that can be stretched to 3 years, a fine, or both.Dacoity is punishable with life imprisonment or rigorous imprisonment for a term that may be extended to 10 years along with a fine.

Punishment for robbery under Section 392 of IPC 

The punishment for robbery is mentioned in Section 392 of the IPC. It states that an offender of robbery shall be punished with rigorous imprisonment, which may extend to ten years as well as shall also be liable for a fine. Furthermore, if the robbery is committed on a highway between sunset and sunrise, i.e., at night, the prison term may be enhanced to 14 years.

There are other sections too that cover punishment related to the crime of robbery in different cases. These punishments are covered in Sections 393 and 394 of the IPC.

Section 393 IPC declares that even attempting to commit robbery is punishable by rigorous imprisonment for up to 7 years as well as being liable for a fine.

Section 394 IPC declares that if the offender voluntarily causes injury in an attempt to commit robbery, the offender and any accomplice with him/ her shall be punished with life imprisonment or rigorous imprisonment up to 10 years and also be liable to a fine.

Essential features of Section 392 IPC

As covered earlier, Section 392 covers punishment for the offence of robbery. There are various essentials to be fulfilled before such punishment could be awarded to the criminal liable under robbery. Its essentials are as follows:

  • The accused committed theft.
  • Voluntarily caused or attempted to cause death, bodily harm or wrongful restraint and feared instant death, bodily harm, or wrongful restraint.
  • The accused committed either act for the purpose of committing theft or while committing theft, carrying away or the attempt to carry away property acquired by theft.

If all the above essentials are met, punishment under Section 392 of the IPC can be awarded to the criminal liable for robbery.

Important case laws

In Harish Chandra v. State of U.P. (1976), when the victim boarded the train at Chakarpur railway station, the accused, co-accused and other person entered the same compartment. When the train arrived at Thankpur railway station around 9:30 p.m., some passengers began to exit the compartment, resulting in a huge rush. At that point, the accused forcibly removed the victim’s wristwatch, and when the victim raised an alarm, the co-accused jumped out of the compartment. They were followed by the victim as well. After all of the accused were caught and their stolen stuff was recovered. The robbery was charged against both of the accused. The defence argued that because the victim was slapped after the watch was stolen, the hurt could not be said to have been caused in order to commit the theft and thus bring the offence under Section 390 IPC. The argument that the co-accused slapped the victim in order for the accused to carry away the stolen property was rejected by the Supreme Court. Under the circumstances, it would clearly fall under the provisions of Section 390, IPC, because the section states that theft is robbery if harm is caused while carrying or attempting to carry away the stolen property. Both accused were found guilty of robbery by the Supreme Court.

In Harinder Singh v. State of Punjab (1993), the accused worked for Pepsu Roadways Transport Corporation in Kapurthala as a gunman. He robbed an assistant cashier in the same corporation and stole Rs 32,936 and in addition, it also caused injuries to the cashier. The accused then locked the cashier in a room and bolted the door from the outside. After the accused had left, the cashier made a scene by raising a hue and cry. When the police arrived, they noticed the cashier confined in the room and evidence of the robbery. Serious injuries were also observed on the cashier’s body. The accused were found guilty of robbery by the Supreme Court. 

In State of Maharashtra v. Joseph Mingel Koli and Ors., it was held that in order to establish the offence of robbery by committing the offence of theft, it was necessary to prove all five essential elements specified in Section 378 of the IPC, which is said to constitute theft, are fulfilled. If any of the five elements of Section 378 are not fulfilled while committing theft, then the offence of robbery under Section 390 cannot be said to have been committed.

Conclusion

Robbery, as defined by Section 390 of the Indian Penal Code of 1860, will always involve either theft or extortion. Robbery is the most severe form of extortion or theft. As a result, in order to constitute theft amounting to robbery or extortion amounting to robbery, the necessary ingredients of theft as defined in Section 378 and extortion as defined in Section 383, must be met positively. However, for extortion to become robbery or theft to become robbery, there must be an element of immediate threat, injury, or death. This is the defining feature of robbery. However, robbery must also be distinguished from dacoity, which requires a minimum of five people to constitute an offence of dacoity. As a result, it is important to understand the distinctions between the four offences as well as their respective punishments. The offences are frequently seen as the same/ similar by the common people, but in the legal field, they are considered different offences.

Frequently Asked Questions (FAQs) 

Is the offence of robbery compoundable and bailable offence?

No, Robbery is neither a compoundable nor a bailable offence but a cognizable offence.

What is the distinction between attempting to theft and attempting to robbery?

Theft and robbery are both distinct offences, and their attempts also have distinct elements. The main distinction between attempting to commit theft and attempting to commit robbery is that an attempt to commit theft is not punishable under the IPC, whereas an attempt to commit robbery is punishable under Section 393 of the Indian Penal Code, with rigorous imprisonment of up to 7 years and a fine.

Is robbery synonymous with theft?

According to Section 390, all types of robberies involve either theft or extortion, indicating that a robbery is an aggravated form of theft. Robbery is a blanket concept for theft because it involves the use of violence to fulfil the offence of theft.

In which court will an offence related to section 392 IPC be heard?

Offences related to Section 392 IPC will be heard in Judicial Magistrate First Class Court.

References

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All about DMCA takedown notices

By
Sneha Mahawar
-
0

This article is written by Sparsh Agrawal. 

This article has been published by Sneha Mahawar.​​

Introduction

The U.S. copyright law was expanded by the federal government in 1998 with the enactment of the Digital Millennium Copyright Act (DMCA), which clarifies rights as they relate to digital material. Copyright holders can ask service providers for assistance in removing illegal content from websites by using the DMCA notice and takedown procedures. Simply put, a copyright owner or the owner’s representative must send a takedown notice to the relevant service provider asking for the removal of the infringing material in order to start the takedown procedure.

This article gives a detailed insight into what a DMCA takedown notice is, why it is necessary, and how it can be enforced, amongst other things.

How DMCA takedown notices came to be

The DMCA was enacted by Congress in 1998, and former President Bill Clinton then signed it into law. In response to the rising issue of peer-to-peer file-sharing websites that made it simpler for people to obtain copyrighted movies, music, and other media unlawfully, the act was created. The DMCA was developed in collaboration with media organisations and legislators.

The DMCA has run into a few issues since it was put into existence. For instance, DMCA agents for web servers and search engines should be registered with the US Copyright Office. However, there is a charge associated with this registration that many businesses do not wish to pay. As a result, while DMCA agent information is often accessible online, the lists provided by the Copyright Office are rarely updated.

The DMCA safeguards internet service providers (ISPs), sometimes known as online service providers (OSPs), in addition to copyright owners. These ISPs are shielded from infringement claims as long as they abide by DMCA notices and take reasonable steps to stop copyright infringement. If ISPs didn’t participate in the infringement with knowledge and didn’t profit financially from it, this protection is still in effect.

Another benefit for ISPs is that their client, the person who submitted the information in the issue, cannot sue the ISP for deleting it if it turns out that the item in question did not violate any copyrights.

What is a DMCA takedown notice

Copyright holders can utilise the DMCA notice and takedown process to get user-uploaded content that violates their copyrights removed from various kinds of websites. These kinds of websites include, but are not limited to, search engines (like Google or Bing), entertainment sites (like Youtube or Twitch), or even web hosts (like GoDaddy or Bluehost). The procedure involves a service provider receiving a takedown notice from the copyright owner or the owner’s representative asking the provider to remove content that violates their copyright(s).

The copyright law specifies the number of details that must be present in a DMCA takedown notice. The service provider could refuse to remove the material if even some of these requirements are not met. There is a possibility that the service provider may nevertheless decline to remove the item from the site even if a takedown notice complies with all legal requirements. In turn, failure to do so exposes them to potential secondary responsibility for aiding in copyright infringement.

Not only may someone issue a DMCA takedown notice for content that is infringing but also for any indexes, references, or links that direct users to content that is infringing. Any copyrighted content that could be violated online is protected by the DMCA, including:

·       Videos

·       Audio recordings, such as music

·       Articles, novels, poetry, and other forms of written language.

·       Images that you’ve published on the social media pages for your company

·       Photographs and other images like still artwork

·       Software

Elements of a DMCA takedown notice

A copyright owner or the owner’s representative must send a takedown notice to the relevant service provider asking for the removal of the infringing material in order to start the takedown procedure. Details on how and where to send a takedown request are frequently included in the ‘Terms of Use’ of a website. A copyright holder should confirm that the other parties’ usage of the content does not meet the requirements for fair use before delivering the notification.

According to the copyright law, a takedown notice must contain the following components:

  • the physical or digital signature of the copyright owner or owner’s representative.
  • Identification of the infringing part of the content, the infringing work(s), and the location of the infringing activity (typically by providing the URL).
  • Make sure the sender’s contact information is listed in the notice, including an email address.
  • A declaration that the content is not allowed by the owner of the IP or copyright, its agent, or the law, according to the notifier’s good faith.
  • A declaration that the details given are true and that the notifier has permission from the owner of the IP or copyright to file the complaint.

Important steps before filing a DMCA notice

A few steps ought to be taken before sending a DMCA takedown notice.

Firstly, determine if a DMCA request will be the most practical way to remove the content in your specific circumstance. A DMCA notice is most likely insufficient if, for example, you wish to have an unfavourable or libellous article about your company deleted from the internet. The DMCA notice could result in the removal of any copyrighted images linked to the article, but it will not get rid of the undesirable content itself. However, you might not want to commit to the expense of a lawsuit. If so, it’s better to attempt some alternative cost-free or, at least, affordable measures.

Secondly, find out if the host, search engine, or infringing website is based in the US. Foreign nations are not required to abide by American law, although some may do so willingly. Before submitting a DMCA notice, one should absolutely talk to an experienced DMCA attorney about this.

Furthermore, it is very important to contemplate the potential consequences of a DMCA notice. When an effort is made to restrict internet information, the Streisand Effect may happen. The ‘Streisand Effect’ is a phenomenon where an attempt to censor or hide something may result in drawing more attention to that particular thing.  It is usually better to explore an alternate removal technique if there is a potential that your DMCA request might result in the Streisand Effect.

Before submitting a DMCA takedown notice, you should also attempt to contact the content’s original poster.  Naturally, every communication with another person needs to be properly thought out. Threatening legal action or using derogatory words might backfire and make things unpleasant.

How to file a DMCA notice

A DMCA notice can seem straightforward to the untrained observer, but there are many small nuances that go into making a request. The denial of a DMCA notice might result from leaving even one small detail. Companies are not required to abide by your request if they do not get DMCA takedown requests with precise wording and justifications.

There are 2 main steps that are very critical in this process.

Determine where to send the DMCA notice

Understanding where and how to send a DMCA request is the first step in the process.  The individual who posted the material, the website where it was posted, the web host or ISP, or the website registrar might all receive the request. Using tools such as whois.domaintools.com, whatismyipaddress.com, etc., to retrieve this information for free is highly recommended. The ‘Terms and Conditions’ of most websites may also provide contact information for DMCA-related issues.

Drafting the DMCA notice

This is when things may become quite challenging. DMCA notices must adhere to stringent guidelines and might be dismissed by even the smallest mistake or omission. It is crucial to ensure that the DMCA takedown notice contains each of the aforementioned 5 elements as well. If any of these elements are missing can be ignored by the receiver. Consequently, a request may be turned down for failing to include enough precise information as well.

Especially when it comes to identifying the infringing content, it is insufficient to merely offer a link to a page with a tonne of material, such as just mentioning “twitch.com.” For example, “The copyrighted content is broadcasted from the 16-minute timestamp till the 21-minute timestamp of this twitch live stream from ‘so-and-so’ streamer” would be a particular identification of the infringing material. If there are numerous or extensive infractions, you should be as descriptive as you can while making sure you are identifying all copyrighted material.

Risks of filing a DMCA notice

Complications can still emerge even if the DMCA takedown notice is correctly prepared. Websites frequently discard incorrect requests without even trying to respond. However, there is a small chance that someone would take offence or deny your claims. If this occurs, it is advised that you hire a DMCA takedown specialist to guide you through some of the following possible situations.

Denied requests

The ideal outcome is that the takedown notice was turned down as a result of a small, correctable mistake. There will be a significantly more serious issue if the receiver rejects your request on the grounds of “fair use.” Only by suing for copyright infringement can you contest “fair use.” Sending a DMCA request is far quicker and less expensive than starting litigation.

Counter notices

A counter-notice, in its simplest form, is a response from the person or entity in charge of the copyright-violating content. They may submit a counter-notice if they have a sincere opinion that the item is not infringing or was improperly deleted. One can assume that the person or entity is someone who is prepared to defend their position when they issue a counter-notice. Additionally, they also indirectly agree to be sued over the disputed material by delivering the counter-notice.

Retaliation

Some individuals may not respond well to notice, no matter how legitimate or professional it is. Some receivers even make the DMCA notice public, which can make the material that is to be deleted more well-known.

Lawsuits

The DMCA, under Section 512(f), permits the recipients of erroneous or malicious copyright takedown notices to be sued. There is a chance that one could have to defend themselves in a lawsuit, despite the fact that these cases are uncommon and hard to establish unless the bad faith or frivolousness is blatantly clear.

How long does the DMCA takedown process last

Depending on the specifics, a DMCA takedown might take anywhere between 24 hours and six months to complete. Processing times might vary depending on the DMCA notice recipient’s level of activity, the complexity of their website, and if they are disputing the authenticity of the notice.

Responding to a DMCA takedown notice

The first thing you should do if you get a DMCA takedown notice for material posted online is to make sure you are not truly violating someone else’s copyright. If you are infringing on someone else’s copyright, it is best to stop it at once before it can go any further. This could necessitate taking the material down from all internet postings.

You should carefully read the takedown notice’s wording in relation to the notice itself. Make sure the notice is complete with all the information we previously covered. If you honestly believe you violated someone else’s copyright, you may decide to willingly comply with a faulty request. However, you are not required by law to accede to a false request.

You might be allowed to respond with a counter-notice if you feel the content is fair use or that you are not violating anyone’s rights. For example, a counter-notice is usually the ideal answer if the individual does not own the copyright to the work or the material is not copyright protected.

Before issuing a counter-notice, you may wish to speak with an attorney if you think the content is protected under the fair use exemption. It is advisable to ascertain if you have a good case before issuing a counter notice on the grounds of fair use because fair use can be a little difficult to define.

Conclusion 

It is not mandatory to register a copyright on your work in order for it to be protected by the DMCA. However, if you find yourself in a legal dispute where a DMCA takedown notice is issued, registering the copyright could help. You can also determine whether using a DMCA takedown notice is your best choice for deleting online content with the assistance of an expert DMCA attorney. Additionally, they may assist you in obtaining copyrights, maintaining your privacy, and lowering the hazards associated with copyright ownership too.

In conclusion, DMCA takedown notices are a potent instrument for retaliating against individuals who infringe upon one’s copyrighted content. For authors, filmmakers, photographers, and anybody else whose work may be infringed upon online, DMCA notices are an effective instrument to stop the many effects of having someone reproduce your work illegally. You should now have a better understanding of the DMCA and how takedown notices function, both when they are issued against you and when you need to safeguard your own material.

References

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Acid attack punishment in India

By
Rachit Garg
-
0

This article is written by Sukhmandeep Singh, a law student at the Guru Nanak Dev University, Amritsar. This article seeks to explain the provisions of the Indian Penal Code, 1860, related to acid attacks, the sale of acids, and the various degrees of punishment prescribed for the offence of acid attack in India. This article also sheds light on provisions related to the non-registration of cases of acid attacks, compensation to the victims, and famous case laws that led to various amendments to the acid attack laws of India. Moreover, this article also explains the significance of the NALSA (Legal Services to Victims of Acid Attacks) Scheme, 2016.  

It has been published by Rachit Garg.

Introduction 

One of the most horrific violent crimes in human history is an acid attack. We may not realise it, but it is very common in South Asia, especially in Bangladesh, India, and Pakistan. Acid has been used in metallurgy and etching activities since ancient times. In the year 1879, 16 acid attack cases were recorded under the name “Crimes of Passion,” the majority of which were committed by a woman against another woman. In South Asia, the first case of acid attack came to light in Bangladesh in 1967, India in 1982, and Cambodia in 1993. These countries recorded the highest number of acid attack incidences over the last couple of years.

The National Crime Records Bureau (NCRB) recorded 1483 cases between 2014 and 2018 in their report, indicating a rapid growth rate. According to NCRB data, there were 150 similar instances in 2019, 105 in 2020, and 102 in 2021. Year after year, West Bengal and Uttar Pradesh account for roughly half of all the cases in the country. In 2021, the charge sheeting rate for acid attacks was 89% with a 20% conviction rate. The Ministry of Home Affairs (MHA) issued a recommendation to all the states in 2015, asking them to speed up the court procedure in cases of acid attacks. Many steps have been taken since 2013, including the inclusion of special provisions dealing with acid attacks, but the number of cases persists at a similar rate. Many acid attack cases still go unreported, which leads to injustice not only towards the victim but also towards society at large, as it is not only a small crime but a crime that endangers the life of the victim even if he/she survives.

Due to an acid attack, the victim experiences discrimination from society for the rest of his or her life. It also has an impact on the social, economic, and psychological lives of the individual. The victims of acid attacks are unable to work due to their deformities, making it impossible for them to live in a society in a normal manner. In rare circumstances, their own family also abandons them, resulting in the victim’s emotional breakdown. So we can infer that there are numerous consequences other than those affecting the physical body alone. Let us discuss it in detail.

What is an acid attack

According to research conducted by UNICEF, acid attacks are a major issue all around the world. The crime of acid attack is also known as “acid throwing.” In an acid attack, acid is thrown over someone’s face in order to cause a burn on the face. This is because the face is the part of the body that is usually not covered. Most of the time, the motive behind throwing acid is to torture, maim, disfigure, or kill the victim. According to the data available, women make up the vast majority of acid attack victims. Nitric, sulphuric, and hydrochloric acids are majorly used in acid attacks. When these kinds of attacks are committed, the motive of the offender is not to kill the victim but to disfigure the body of the victim and put the victim in immense pain, and the recovery might be very difficult. 78% of acid attacks are caused by the rejection of a love proposal or a refusal to marry, though there are many other causes too, which include personal hatred, the assumption or knowledge of extramarital affairs of husband/ wife, etc.

An acid attack is legally defined under Section 326A IPC. It provides that any person who causes injury to the victim, either permanently or partially, by throwing acid is guilty of an acid attack. The injury due to an acid attack is usually deformity of the victim’s body or maiming. Maiming is an injury to a body part that is so harsh that the affected organ can no longer be used. Disfigurement, disablement, and the burning of body parts are also some of the injuries caused by acid attacks. It is important that, while throwing acid, the offender must have had the knowledge and intent to cause such an injury as mentioned above.

For the sake of this section, “acid” has been referred to as any substance that is acidic or corrosive in character and also has a burning quality to it. This substance is also quite capable of causing permanent or temporary scars over the body parts along with causing disfigurement or disablement of the body or body parts.

Permanent or partial harm or deformity is not necessary to be irreversible for the purposes of this clause.

Essentials for acid attack

Although even an attempt to throw acid has been made punishable under the Indian Penal Code but there are some essentials of an acid attack which are as follows-

  • Acid throwing/ attempting to throw/ administering the acid
  • Grievous hurt caused
  • Permanent or partial damage caused (maims, burns, disfigures or disablement)
  • The offender had the knowledge and intent to carry out this act 

So, these are some of the essentials of an acid attack. 

Penal provisions dealing with acid attacks in India

Until 2013, acid attacks were not even considered distinct offences under Indian law and were covered under general laws such as punishment for grievous hurt and attempt to murder. But with changing times and increasing cases of acid attacks, the Criminal Law (Amendment) Act of 2013 was passed, which changed the situation in India regarding acid attack laws. Sections 326A and 326B were added to the Indian Penal Code, 1860. These are special provisions for acid attack cases. 

Although Sections 326A and 326B were enacted in 2013, there were some other provisions available for victims to get justice too. Some provisions relating to compensation for acid attack victims were also present in different statutes, but these provisions were not specially drafted for the crime of acid attack. So, a need was felt to draft provisions, especially for the acid attack cases, and Sections 326A and 326B came into existence.

Provisions related to acid attacks are as follows-

Section 322 IPC – This Section covers voluntary causing of grievous hurt. This Section provides that if a person causes grievous hurt to any other person or aims at performing such an act that might cause grievous hurt to the victim, and this act is done voluntarily and with the knowledge that the act might cause grievous hurt, then such an act would amount to the voluntary causing of grievous hurt. This Section does not carry any punishment on its own, but Section 325 IPC awards punishment for the act done under Section 322 IPC.

Section 325 IPC – This Section deals with the punishment for voluntarily causing grievous hurt to any person, as defined under Section 322 IPC. An exception to this Section is laid down under Section 335 IPC (Willingly causing grievous hurt on provocation). So, if anyone voluntarily causes grievous hurt, then that person is liable under this provision.

Section 326 IPC– This Section sometimes might be seen as covering the offence of acid attack, but in reality, it does not cover the offence of acid attack. This Section deals with voluntarily causing grievous hurt with a dangerous weapon, but not with acid. The definition of Section 326 is relatively restricted; thus, it does not address the offence of acid attack because: 

  • It does not include such types of injuries which may arise due to acid throwing by any person, for example, burns on body parts etc.
  • This clause does not cover any provision related to the act of managing acid attacks, i.e., purchasing them or preparing for the acid attack.
  • This provision does not deal with such a situation if no injuries take place, that is a very big negative of this provision as the gravity of this offence is very high and even an attempt to acid attack should be punishable.

A presumption regarding the acid attack is described under Section 114B of the Indian Evidence Act. According to this Section, if anyone commits the offence of “acid attack,” then as a general presumption, the court will presume that the offender was very well aware of his actions while having enough knowledge and intent that such injury was likely to be caused, as specified/ given under Section 326A of the IPC.

Sections 326A and 326B of the IPC were inserted in 2013 on the recommendation of the Justice Verma Committee.

Section 326A – It deals with grievous hurt caused by the use of acid. According to this Section, if any individual uses acid to cause any injury to the victim, either permanently or temporarily, while having the knowledge that such an act will lead to burns to the body of the victim or will disfigure or disable any limb of such person or is likely to cause any type of grievous hurt, then that person will be liable for an acid attack.

Section 326B- This Section deals with punishment for an attempt to commit an acid attack. According to this Section, even though no injury might be caused, the offender will be held liable if he/ she throws acid or attempts to throw acid on the victim. 

Section 307 IPC – This Section deals with the attempt to murder. This Section deals with a situation in which a person performs an act that, if successful, might result in the death of the victim. The act must be done with intention and with the knowledge that it will likely result in the death of the victim. For example- a person X throws a leaking acid bottle at N, but N somehow survives. Later, it is found out that the attack was aimed to kill X then that attack will be covered under this Section. In the acid attack cases, before the drafting of specific clauses, this section was also used where the motive was found to be murder, as it is a very heinous crime.

There have been various cases that led to the applicability of Section 302 IPC in cases relating to acid attacks. Section 302 of the IPC deals with punishment for murder. As per the 226th Law Commission Report, there have been a number of cases where the offender was convicted under Sections 302 and 307 IPC. In the case of Gulab Sahiblal Shaikh v. State of Maharashtra (1988), the victim’s brother-in-law threw acid at the victim (a woman) due to her refusal to give money in order to maintain the second wife of her husband. When the attack took place, the victim was holding her two-and-a-half-year-old baby girl. The victim suffered acid burns on the left side of her body, including her face, breasts, and hand, and her young daughter lost her sight. The woman couldn’t recover from such burns and thus died due to the same. In this case, the Court sentenced the brother-in-law to life imprisonment and a fine of Rs. 1000, as well as harsh imprisonment for a month, under Section 302 of the IPC, but the fine didn’t go to the victim’s daughter under the concerned judgement. 

Section 302 IPC is also applicable now if the acid attack results in the victim’s death.

Provisions related to the regulation of acid sales

2013 was the year when initial steps were taken to regulate acid sales in India. Firstly, the Supreme Court observed an increasing number of acid attack cases in the country and felt the need for steps to be taken to control this offence. The Supreme Court issued orders regarding the sale of acids as the first step towards its control. After these orders, the government started working on provisions related to sale regulations. The Ministry of Home Affairs, after due diligence, started providing guidance to states on ways to control the sale of acid. The Model Poisons Possession and Sale Rules, 2013, were made under the parent Act- the Poisons Act of 1919. Some of the key features of these guidelines and normas are listed here-

  • The selling of acid over the counter (without a valid prescription) was prohibited unless the seller kept a logbook/ register noting the information related to the sale of acid. This logbook was also supposed to include information about the person to whom the acid was sold, the quantity sold, the individual’s address and the reason for buying the acid by the buyer.
  • The sale will also be conducted only if the customer presents a photo ID proving that he or she is over the age of 18 i.e. he/ she is a major.
  • Sellers must also disclose all acid stocks with the competent Sub-Divisional Magistrate (SDM) within 15 days and also in the case of undeclared acid stock. For a violation of any of the directives, the SDM has the authority to seize the stock as well as levy a fine of up to Rs 50,000.
  • According to these guidelines, educational institutions, research laboratories, hospitals, government agencies and departments of Public Sector Undertakings are required to preserve and store acid and also must keep a register of acid usage and file it with the appropriate SDM.
  • A person shall be held accountable for the possession and safekeeping of acid on their premises, according to the rules. The acid must be stored under such supervision that students, workers leaving laboratories or places of storage where acid is utilised must be checked.

So these were some of the guidelines put forward by MHA. As the topic falls under the authority of states, the MHA also asked states to formulate their own guidelines based on model norms.

Punishment for an acid attack in India

As mentioned above, punishment for an acid attack was earlier awarded under different provisions of the IPC, but after the Criminal Law Amendment Act of 2013, punishment for the offence of an acid attack is mostly awarded under Sections 326A and 326B of the IPC. All the provisions which award punishment for this offence are given as under-

As per Section 326A IPC, the person who commits an acid attack shall be punished by imprisonment of either kind for a term that must not be less than 10 years, but which may extend to life imprisonment upon the court’s discretion, and a fine.

As per Section 326B IPC, the person who attempts to commit an acid attack shall also be punished with imprisonment of either kind for a period that must not be less than five years but may be extended up to seven years, and a fine, regardless of the nature of the victim’s injuries, will also be imposed.

Besides these 2 main sections dealing with acid attacks, there are some other sections as well that were earlier used to cover this crime, and some of them can be used now depending on the crime committed or the intention of the criminal. Those sections are mentioned below-

As per Section 325 IPC, If any person causes grievous hurt to the victim then the offender will be punished with imprisonment of any kind for a period of up to seven years and also fine would be imposed on him.

Section 307 IPC is also applicable in today’s world, even after 326A and 326B IPC came into force, as it deals with the attempt to murder, which becomes a more serious crime if the attempt is successful. It also deals with mens rea, which means the mental element (intent to murder in Section 307 IPC), which is essential in this Section. 

Under Section 307 IPC, a criminal shall be punished with imprisonment of either kind for a period that may extend to ten years as well as a fine, and if such act causes hurt to any person, the criminal shall be liable to either life imprisonment or the punishment as mentioned above. When any person violating this Section is already sentenced to life imprisonment, he may be punished with death if the act causes hurt.

If the acid attack leads to the victim’s death, then the offender would be liable under Section 302 of the IPC. So under this provision, if the act results in the murder of the victim, then the offender will be liable for death or can be punished with life imprisonment and will also be liable for a fine. 

So, these are the punishments which could be awarded in case of acid attack is committed.

Provisions for punishment for failure to register crimes against women

We have discussed above the punishments related to the crime of acid attack, which are given under the IPC itself, but there are some other provisions too that deal with punishment for failure to register crimes against women. Statistically, most of the victims of acid attacks are women.

By virtue of the Criminal Law (Amendment) Act of 2013, Sections 166A and 166B were added to the IPC. 166A was later amended in 2018.

Section 166A of the IPC deals with those public servants who knowingly disobey the law. This Section applied to those public servants who commit any of the following acts —

  1. Act of disobeying the laws intentionally on the matters relating to the attendance of an individual at a particular place, if such act of seeking attendance is prohibited by law and if public servant still disobey it then this act is covered under this clause. For example, a policeman asks A who is 12 years of age to report at the police station for questioning then the policeman is disobeying the law.
  2. Act of intentionally disobeying the directions which govern the manner of the investigation as provided by the law. If such disobeying of directions is prejudicial towards any person then this act is covered under this Section.
  3. do not succeed in recording any information as required under sub-section (I) of Section 154 of the Code of Criminal Procedure (CrPC), 1973  in relation to a cognizable offence which is punishable under Section 326A, Section 326B, Section 354, Section 354B, Section 370, Section 370A, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E or Section 509.

If any of the above acts are done by a public servant, then he/she must be punished by rigorous imprisonment for a time not less than six months, but it may be extended up to two years. Moreover. A fine may also be levied.

Along with Section 166A, 166B was also added via the same Amendment. Section 166B outlines the penalty that can be imposed if the victims are not treated by the hospitals. Under this Section, if any individual violates the provisions of Section 357C of the Code of Criminal Procedure, 1973, while being in charge of a hospital, public or private, whether run by the Central Government, the State Government, local bodies, or any other person, that person shall be punished with imprisonment for a term not exceeding one year or a fine, or both.

Compensation for acid attack victims

Compensation provided by the government and fines imposed on the offenders by law are two of the most important considerations for the victims of acid attacks. Sections 326A and 326B, along with the punishment of imprisonment, also impose fines. According to the law, a fine should be appropriate and reasonable in order to cover the victim’s medical expenses. Along with this, the fine should also be paid directly to the victim in order to save time. Sections 325 and 307 also levy fines on the offender. 

As an acid attack is a crime against humanity, there are some provisions that provide for the payment of compensation to the victim along with the fine recovered from the offender. 

Based on Supreme Court directions, the Ministry of Home Affairs directed states-

  • To ensure that the victims of acid attacks must receive compensation of at least Rs. 3 lakhs (Rs 1 lakh within 15 days and the rest Rs 2 lakhs within 2 months thereafter) from their respective state government/ Union Territory.
  • To make such provisions which are needed to provide treatment to acid attack victims for free in any hospital whether it is public or private.
  • To set aside 1-2 beds in private hospitals for the treatment of vulnerable acid attack victims who might get discriminated against by hospitals owing to their background.
  • To extend social integration programmes for the victims, which might be supported by NGOs to meet victims’ rehabilitative needs.

There are other provisions in CrPC too that deal with compensation for the victims of acid attacks:

  • Section 357A of Criminal Procedure Code(CrPC), 1973: This Section deals with the Victim Compensation Scheme. Under this Section, every state government is required to prepare a scheme to provide funds for compensating the victims or his/ her dependents who suffered a loss or injury due to the attack on the victim. The scheme would also provide funds for cases where the victim needs rehabilitation. This scheme was meant to be operated in cooperation with the Central Government. The Section further specifies a detailed procedure for determining the amount of compensation which is to be paid to the victims and which mode of disbursement to be used.
  • Section 357B of the Criminal Procedure Code (CrPC), 1973: According to this Section, the compensation provided by the State Government under section 357A is in addition to the victim’s fine under Sections 326A, 376AB, 376D, 376DA and 376DB of the Indian Penal Code.
  • Section 357C of the Criminal Procedure Code (CrPC), 1973: This Section deals with the treatment of victims. All the hospitals either public or private, whether run by the Central Government, the State Government, local bodies, or any other person, must immediately provide free first-aid or medical treatment to victims of any offence covered by Sections 326A, 376, 376A, 376B, 376C, 376D, or 376E of the IPC and must immediately notify the police officer about such incident.

So, these are some of the provisions that deal with compensation for the victims of acid attacks. 

Even after the compensation is given to the victim, it would never be enough to cover the damage and let the victim go back to normal life as before. The acid attack worsens the person’s life and has an impact on their social, economic, and psychological well-being. As the majority of the acid attacks are aimed at the victim’s faces, the amount of compensation depends on the concentration of acid present and the time period before the acid is properly rinsed off with water or neutralised with a neutralising agent. So, in any case, compensation can never be enough.

NALSA (Legal Services to Victims of acid attacks) Scheme, 2016

The National Legal Services Authority (NALSA) has been formed under the Legal Services Authorities Act, 1987. The act’s preamble emphasises that legal services authorities are concerned with the weaker segments of society and have an obligation on them to ensure that no opportunity for achieving justice is denied. The Legal Services to Victims of Acid Attacks Scheme was launched in 2016. Its main objectives are as follows:

  • The first objective of this scheme is to improve legal aid services and representation of acid attack victims at national, state, district and taluka levels. This is to be done so that victims can take advantage of various legal provisions as well as available compensation schemes.
  • To provide access to proper medical care as well as rehabilitation assistance to the victims.
  • To conduct research and document the same to examine various schemes and legislations in order to identify the gaps in schemes and also to work on the needs of the victims.
  • To increase the number of panel lawyers, and paralegal volunteers. It also aims at increasing the number of police officers and NGOs.
  • This scheme aims at organising training, orientation and sensitization programmes. 
  • To work on spreading information and creating awareness about the rights of acid attack victims.

Legal Services Clinic

Legal Services Clinics have been set up under the Legal Services Authority (Legal Services Clinics) Regulations, 2011. These regulations will regulate the functioning, records of maintenance, infrastructural facilities, etc., of these clinics. State Legal Services Authorities must set up these clinics in the hospitals where specialized facilities for acid attack victims are available, such as treatment for burns in acid attack victims. These clinics will assign lawyers who will communicate with the victims on a regular basis and help secure proper treatment for the victims.

The appointed paralegals will also provide possible counselling for the victim as well as the family. This is done to bring them out of that traumatic phase of their lives. The paralegals will also help the victim get the certificate of attack from the hospital, which will be useful in order to get compensation from the respective government and other schemes. This is the duty of the paralegal to ensure that victims are able to secure rehabilitative services.

When any Legal Services Clinic is opened, information regarding the same is to be sent to all police stations, government bodies, and NGOs.

Training and Orientation Programme

Under this Act, the task is allocated to State Legal Services Authorities to undertake appropriate training and orientation programmes for paralegals and panel lawyers to teach them how to handle these types of sensitive matters. They will also organise programmes for other associated authorities such as police officers, government officials and medical officers etc.  

State Legal Services Authorities must also collaborate with Judicial Academies to undertake training for judicial officers in order to speed up the judicial process and ensure that victims receive proper compensation as well as dignified treatment in a court of law.

Famous acid attack cases

Lakshmi v. Union of India (2015) is about a girl named Lakshmi who was only 16 years old when she was attacked with acid. This attack was motivated by a refusal to accept a marriage proposal. Lakshmi was brave, and in 2006 she filed a PIL in the Supreme Court of India, demanding not only compensation but also the development of new laws and the amendment of current laws in India connected to acid attacks. She requested a complete ban on the sale of acids to common people in markets.

The Supreme Court ruled the case in her favour and directed the Central and State governments to draft legislation on this subject after adequate thought and discussion.

As a result of this important judgement, the Supreme Court completely banned the counter sale of chemicals unless the seller kept a record of the buyer’s addresses and other details, as well as the amount. Dealers can now only sell the chemical after being shown a government-issued photo ID and stating the reason for the purchase. Many steps were taken such as regulation of acid supply, use of acids and rehabilitation of women victims to prevent acid attacks. These steps were taken by passing the Acid Attack and Rehabilitation of Acid Attack Victims Bill, 2017.  

In Parivartan Kendra v. Union of India (2015), Parivartan Kendra is the name of an NGO that exercised its constitutional right under Article 32 and filed a writ petition. Despite the judgement in Lakshmi v. Union of India, the concern raised in this case was the deteriorating status of acid attack victims. The complaint was filed following an acid attack on an 18-year-old Dalit girl who had previously been sexually harassed and verbally abused. Four people spilled acid on her face while she was sleeping. Both she and her sister were injured while sleeping together. Medical treatment was delayed, and the family’s expenses were so high that they were in debt. The NGO emphasised issues such as the inadequacy of 3 lakh rupees for sufferers, the necessity of medical efficiency for a speedier recovery, and additional medical incentives such as free check-ups, medication costs, and so on.

The Court ruled that the government had failed to handle the problem of acid attacks despite numerous laws being passed, and inadequate funding is also one of the reasons. Compensation of at least 3 lakh rupees was mandated. Within three months, the victim and her sister were to get ten lakh rupees and three lakh rupees, respectively.

The case law of State of Maharashtra v. Ankur Panwar (2019) concerns a 23-year-old nurse who worked at a Mumbai hospital. The accused approached her for marriage, but she declined because she wanted to advance her career. He couldn’t take the rejection any longer and threw acid at her when she was on the train. She drank a few drops by accident and died as a result. She was admitted to the hospital for a month, but she died. It should be noted that, as it was found to be a particularly exceptional case, it was heard by a Special Court presided over by a female judge, Justice A.S. Shinde. She was surprised that the acid attack was so heinous that the victim died as a result of it. Given the nature of the offence committed, the court felt a deterrent sentence for the accused was necessary in this case. The court sentenced the culprit to death and levied a Rs 5000 fine on the offender which was to be paid to the victim’s parents.

In the 1975 case of Ravinder Singh v. State of Haryana, acid was poured on a woman by her husband for refusing to grant him a mutual consent divorce. The husband was having an extramarital affair. The victim died as a result of extensive acid burns on her face and other parts of her body caused by the attack. The culprit was charged under Section 302 of the IPC. Even though the victim had died, life imprisonment was not awarded. This case was way before 2013, so the present legislation was not applicable at that time.

Law relating to acid attack in Bangladesh

Just like in India, we suffer from the evil of acid attacks, and similarly, our neighbour Bangladesh also suffers from acid attacks. Bangladesh has taken serious steps to curb this evil since 2002. In my opinion, India must take some provisions from Bangladesh’s government’s passed Acts and incorporate them into our own laws or pass some similar Acts such as the Acid Control Act of 2002 and the Acid Crime Prevention Act of 2002. Both of these Acts are passed by the Bangladesh government to fight against this crime. Some of the major features of these Acts are as follows:

  • Acid import, export, and sale restrictions.
  • The Acid Attack Council Fund has also been created under these Acts which act as a special fund for acid attack victims.
  • Provision for prompt and proper medical care of victims
  • There has been the establishment of various victim rehabilitation centres under these Acts.

Although no steps could heal the wounds of acid attack victims, taking them would definitely help in the reduction of offences. As citizens, it is our joint responsibility to abolish this societal evil and remove the stigma connected with this crime for the benefit of survivors.

Conclusion

Concluding this topic is very difficult, as this crime is not only a crime against the physical body but also touches beyond the soul of the ordinary person. The victim of an acid attack suffers many long-term consequences. It permanently makes the victim’s life hell, and living in such a society is very difficult. It also permanently terrorises the victim’s mind, and getting back into a normal life remains only a dream. It is extremely difficult for acid attack victims to find work opportunities, marry someone, or even attend school. Society looks at them as if they are not human beings but aliens who will not feel awkward with this kind of behaviour from society. Human is a social being and suffers quite a lot due to misbehaviour of the society in general. Society condemns the victims because of their different looks. Even if they wish to live a regular life in society, no one can guarantee that they will be accepted and  respected as normal human beings based on their appearances. According to me, the government must enact more new rules, legislation, and amendments, as well as adopt strict steps to implement these provisions, in order to end this horrible crime. The government should also provide competent medical care and an effective rehabilitation programme for acid attack victims. 

Frequently Asked Questions (FAQs)

Is the offence covered under Sections 326A and 326B cognizable and bailable offence?

The offences covered under Sections 326A and 326B are cognizable and non-bailable offences.

Under which court the offences covered under Section 326A and 326B be tried?

The offences covered Section 326A and 326B be tried under Sessions Court. 

If someone is threatened by someone by acid attack. What he/she can do?

The threatened person must file a preemptive complaint with the nearest police station and, if required, seek protection.

Why cannot acids be completely banned?

Hydrochloric, sulfuric, and nitric acids are the most commonly used acids in attacks. These acids are employed in a variety of industries, including automotive, polish manufacturing, and the medical industry. As a result, it is difficult to completely prohibit them.

Rust-cleaning agents, which could be obtained over the counter at hardware stores in India, were frequently used in acid attacks. However, due to a Supreme Court order, these acids can now only be sold to people who can give a photo ID and register their name and address, creating a paper trail with the seller.

In terms of other alternative sources of acid purchase, there is a favourable connection between higher regulation and a decrease in attacks. This shows that pushing for stronger penalties for acid sales will ultimately serve as a safeguard.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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Article 28 of the Indian Constitution

By
Sneha Mahawar
-
0

This article is written by Diksha Paliwal, a student of LLM (Constitutional law). The article in the initial section deals with the concept of secularism in the Indian context, followed by a brief summary of the four Articles of the Indian Constitution pertaining to the right to freedom of religion in India. The later part discusses in detail the provisions of Article 28 along with several vital judgments in light of the same.

This article has been published by Sneha Mahawar.​​ 

Introduction

India, by its very nature, is a pluralistic society and embraces a vast religious diversity. The inhabitation of several religions in the country validates the reasoning behind the development of the concept of a secular state and the inculcation of religious freedom in our Constitution. The term “secular” connotes neutrality in religious matters. There exists no doubt regarding the fact that religion has been a volatile subject in our country, and it is for this reason that the Constitution has enunciated provisions for maintaining this neutrality. Articles 25-28 of the Constitution of India provide for provisions concerning the right to freedom of religion. 

India and secularism

The term “secularism” can have multiple meanings. However, a conclusive meaning that can be given to the term is that it looks for defending the absolute freedom of religion and other beliefs and simultaneously protecting religious rights by ensuring the protection of the religious rights of others. It is a unique blend of ensuring the right of individuals to religious freedom while balancing the right to be free from religion. It is essential to understand that secularism in no way supports atheism; it is just a framework provided for a democratic society. The concept of a secular state is derived from secularity; it connotes the neutrality of a state in religious matters.

The makers of the Constitution of India desired to instill the ideas of modernity and liberalism by formulating a government that would guarantee the rights of citizens and simultaneously creates the conditions for democratic citizenship. The process of secularism is continuous. Our Indian Constitution requires the non-establishment of religion; however, it does not provide for the separation of religion and state. We have a very divergent approach towards religion-state relations, which is best suited to the Indian context and conforms to the Indian Constitution. Secularism provides a platform or a political space, where religion and state can co-exist. India has been a secular state for a very long time. The rich history of India reflects the existence of all the religions in the country, and the then rulers accepted and patronised this diversity. 

The concept of secularity as prevalent in India differs slightly from other nations. In almost all nations, the secular states pursue state and religion as two entirely different notions, and they don’t interfere with each other. However, India has integrated itself with the concept of secularism. Also, the state has a certain amount of power to interfere in religious matters as provided under the Constitution. The term “secular” was incorporated in the Preamble of the Indian Constitution by the legislature vide its 42nd amendment in 1976. It clarifies that there stands no official religion of the state. The Amendment intended to clarify the concept of secularism in our Constitution. Apart from the preamble, Articles 25, 26, 27, and 28 of the Indian Constitution provide for religious freedom, thereby ensuring secularism. As said by Dr. B.R. Ambedkar in his speech, by ensuring a secular state,  the makers of the Constitution intended to restrict the government from having the power to impose any particular religion on the people of the country.

The term “secularism” connotes that the state will not have any religion of its own. It affirms the doctrine that the state shall protect all religions, and interfere with none. All religions are to be treated equally. It imposes an obligation on the state that it should treat all religions equally. Also, it has to extend homogeneous treatment to everybody, irrespective of their religion or beliefs. The only thing that the secular state shall focus on, is the relationship between man and man. 

The purpose of secularism is to make sure that people of all religions, or atheists, can live together peacefully and fairly. It provides a safe and healthy space for both believers and non-believers. It aims to promote freedom of speech and expression and equal access to all resources, thereby promoting the concept of equality of all citizens before the law and parliament. It is the attitude of impartiality towards all religions.

In the case of S.R. Bommai v. Union of India (1994), the Supreme Court of India, comprising a 9 judges bench, held that secularism is a basic structure of the Indian Constitution. The Court further stated that politics and religion should in no way be mixed. In instances where the state follows non-secular policies or any other actions contrary to the secular state’s concept, such actions or policies will be held to be against the constitutional mandate. Before this case, the Supreme Court in the case of Kesavananda Bharati v. State of Kerala and Anr. (1973) had also opined a similar view, stating that secularism is a part of the basic structure of the Indian Constitution. The Court went on to say that the basic structure of the Constitution is not subject to amendment.

In the case of Ahmedabad St. Xavier’s College v. State of Gujarat (1974), the Apex Court held that the concept of secularism neither promotes no-god nor promotes anti-god. It entirely abolishes God from state affairs or state matters. 

The Apex Court, in the case of Santosh Kumar v. Secretary, Ministry of Human Resource Development (1994), held that the introduction of the Sanskrit language in the curriculum of the Central Board of Secondary Education is in no way against the principle of secularism, the reason being that it is the mother of all Aryan languages. The Court further directed the CBSE to make necessary amendments to the syllabus, thereby teaching Sanskrit as an elective subject. 

Right to freedom of religion 

One of the fundamental rights guaranteed under the Indian Constitution is the “right to freedom of religion.” Now, before jumping into a brief discussion of the provisions that ensure this fundamental right, one must first understand what exactly the term “religion” means. 

The term “religion” is nowhere defined in the Constitution of India, and it is impossible to provide a particular definition for such a complex term. However, the Apex Court, in a catena of decisions, has tried to define this term broadly. Religion can be denoted as a faith that an individual or a community believes in; however, it does not necessarily need to be theistic. It is a system of beliefs that are contemplated by those who profess that particular religion as accompanied by their spiritual well-being. However, the term cannot be just confined to a doctrine of belief.

As rightly said by John Stuart Mill in his essay “On Liberty,” no discussion of freedom of conscience is complete until and unless due consideration is given to the social aspect of religion. It is important to contemplate the state’s relation to the individual in matters concerning religion, along with the state’s relation to religious groups and associations. The right to freedom of religion is not a single-cut-short right, but rather a complex of rights, from the perspective of both individuals as well as social points of view. 

Though it cannot be said that our Constitution provides for the unrestricted right to freedom of religion, the fact that it is included in one of the six fundamental rights provided in the Constitution says it all. The preamble itself reflects the importance of this right. 

The Articles provided under 25 to 28 were enunciated to protect religion and prevent religious practices from state interference. However, the notion of non-interference has not been extracted to the extent that a particular religion impinges on or adversely affects the secular rights of Indian citizens or hinders the power of the state to manage and regulate state affairs. The interpretation of these articles by the Apex Court is done in the light that it promotes inter-religious amity and harmony. The courts in a plethora of decisions have leaned towards the minority groups and have bestowed upon them certain rights over the majority groups.

Following are the provisions concerning the right to freedom of religion under the Constitution of India;

Article 25

This Article of the Indian Constitution is titled, “Freedom of conscience and free profession, practice, and propagation of religion”, and is guaranteed to all persons, not just Indian citizens.

Article 25 (1) of the Constitution, provides for the aforementioned right to all persons, with a hint of certain restrictions. It shows that the guaranteed right is not absolute. The right as provided is subject to public order, morality, health, and other provisions as envisaged in Part III (Fundamental Rights)  of the Indian Constitution. To sum up, under sub-clause (1) of Article 25, a person is entitled to two-fold freedom: freedom of conscience and freedom to profess, practice, and propagate religion.

Article 25 (2)(a) of the Constitution envisages the provision that the state is not restricted from making any law limiting or regulating any economic, financial, political, or other secular activity associated with spiritual or religious activities.

Article 25 (2) (b) further provides that the state is in no way restricted from formulating any law concerning social welfare and reform or from making Hindu religious institutions available to the public at large, including all classes and sections of Hindus.

The term “freedom of conscience” is based on the notion that an individual possesses absolute inner freedom to mould and determine his/her relationship with God in whatever manner he/she desires or wants to pursue. When this freedom of an individual becomes coherent and is intimated in an outward form, it gets converted into “profess and practice religion.”

To profess a “religion” is to freely and overtly declare his/her faith or beliefs. An individual is entitled to practise his faith and beliefs in any practical manner he desires. Performing prescribed religious duties and rituals and exhibiting religious ideas and expression as per one’s religious order is called “practising religion.” The term “to propagate” means to publicise and spread one’s religious beliefs. However, this shall be without coercion; no persuasion shall be forceful. 

The protection of this Article is not restricted to matters concerning the doctrine of belief. For instance, it does not guarantee the right to convert another person under the pretext of persuasion or propagation of one’s religion. Also, it extends to all the acts done in pursuance of religion, thereby providing a guarantee for all duties and rituals that are an integral part of a religion.

In the case of Church of God (Full Gospel)  in India v. K.K.R.M.C. Welfare Association (2000), the Apex Court held that noise pollution in the name of religion is not acceptable. A person is not entitled to disturb the peace of others or create noise pollution in the exercise of the rights guaranteed under Articles 25 and 26 of the Indian Constitution. The use of loudspeakers for conducting prayer was held as not an essential element of practising religion. The Court further went on to say that the order restraining the use of loudspeakers, passed under the Madras Town Nuisance Act, 1889, and the Noise Pollution (Regulation and Control) Rules, 2000, is constitutionally valid. 

Article 26 

Article 26 of the Constitution talks about “Freedom to manage religious affairs.” It provides for four rights for every religious denomination, namely; “to establish and maintain institutions for religious and charitable purposes”; “to manage its own affairs in matters of religion”; “to own and acquire movable and immovable property”; and “to administer such property in accordance with law.” This right guaranteed under Article 26 is subject to public order, morality, and health.

The main distinction between the rights guaranteed under Article 25 and Article 26 is that the former is an individual right and the latter is the right entitled to an “organized body,” similar to a religious denomination or part thereof.

In light of Article 26, the term “religious denomination” means a religious group or sect that has a common faith and is designated under a common name. The word has its origin in the term “religion.” Thus, in the case of a “religious denomination,” the presence of a common faith or belief based on a particular religion is an essential element. The members of such a denomination shall have a belief peculiar to themselves. 

In the case of S.P. Mittal and others v. Union of India (1982), the Apex Court held that in order to satisfy the term “religious denomination” as per Article 26, one must fulfil the three conditions, which are;

  •  “It must  be a  collection of individuals who has a system of beliefs or doctrine which they regard as conducive to their spiritual well-being, that is,  a common faith;
  • Common organisation: and
  • Designation by a distinctive name.”

Article 27

Article 27 provides for “Freedom as to payment of taxes for the promotion of any particular religion.” This Article mainly emphasises the secular character of the state. It provides that no person shall be forced to pay tax for the promotion or maintenance of any particular religion or denomination. The Article also provides that public money collected via tax shall not be spent by the state for the promotion of any religion. This Article predominantly prohibits giving aid to any particular religion. However, suppose state aid is provided to all religious institutions without favouring any single religion, along with the secular ones, without any discrimination. In that case, the same shall not be in violation of Article 27.

The rationale behind implementing this provision is that, firstly, India is a secular state, and secondly, our Constitution guarantees freedom of religion to individuals as well as religious sects; hence, paying out of public funds for the promotion of any particular religion will be against the Constitution. It is pertinent to mention here that what is prohibited under this Article is the levying of taxes, not a fee.

In the 1954 case of Ratilal Panachand Gandhi v. the State of Bombay, the Apex Court held that the term “tax” denotes the compulsory exaction of money for public purposes by public authority. The imposition of taxes is done for public purposes to meet the general expenses of the State without mention of any special advantage to be bestowed upon the taxpayer. On the contrary, a fee is a payment primarily made in the public interest but in return for any service rendered. 

Article 28 

Article 28 of the Indian Constitution provides for “Freedom as to attendance at religious instruction or religious worship in certain educational institutions.” The Article mainly talks about four types of educational institutions, namely; 

  1. Institutions that are wholly maintained by the State.
  2. Institutions that have been recognised by the State.
  3. Institutions that receive aid from the State funds.
  4. Institutions are established under any trust or endowment and are administered by the State. 

It is important to understand that for the institutions that fall under the first category, no religious instructions shall be imparted. In the second and third categories of institutions, religious instruction may be imparted with the consent of a person or guardian in the case of a minor. In the last category, no such restriction exists for religious instruction.

In the case of D.A.V College, Bhatinda v. State of Punjab (1971), the  Supreme Court decided on the constitutional validity of the Guru Nanak University Act, 1969, by which the State was directed to make rules for the study and research of Guru Nanak’s life and his teachings. This provision enumerated in Section 4 of the Guru Nanak University Act, 1969, was challenged based on the contention that the provision is violative of Article 28. However, the Court decided against the petitioner and held that the Act was constitutionally valid. It further stated that the university is trying to impart academic study through the teachings of Guru Nanak, and this does not amount to religious instructions or the promotion of religion. The Apex Court also clarified that it intends to not extend the scope of Article 28 to the concept of secular, cultural, or philosophical studies or activities.

Prohibition of religious instruction in a state-aided institution : an overview of Article 28

Article 28 is categorically related to the provision of restraining religious instructions in institutions that are aided by the State. The three categories that fall under the abovementioned state-aided institutions are; those that are entirely maintained by the state, those that receive aid from the State, and those that are established under any trust or endowment and are administered by the State. The applicability of this Article is confined to state-aided institutions; it does not apply to other institutions that have no connection with the State.

The Article provides for a distinction among the three types of educational institutions, completely public, i.e., where religious education is completely prohibited; institutions, where the State acts as a trustee, in which case imparting religious education, is allowed; and institutions aided by the state, where consensual imparting of religious education is permitted. 

Clause (1) of Article 28 provides that no religious instruction is to be imparted by any institution that is wholly maintained by out-of-state funds. 

However, Clause (2) of this Article, states that this provision does not apply to educational institutions which are maintained from state funds, but they have been established under any trust or endowment which expressly or impliedly requires that religious instruction should be conveyed in such institutions. 

Article 28(3) states that no person who is attending an institution recognised by the State, or that is receiving aid from state funds shall be requested to indulge in any religious instruction that may be imparted in any such institution. Also, he shall not be forced or persuaded to attend any religious workshop that may be conducted in any such institution or in a place attached to or close to such an institution. From a bare perusal of Clause (3) of Article 28, it is clear that it supplements Article 30(1).

In the case of Ms. Aruna Roy and others v. Union of India and others (2002), the Apex Court, while clarifying the intent of Article 28, stated that it does not ban the study of religions. The main objective of the Article is the prohibition of imparting religious instructions. The Article nowhere states that it prohibits the study of religion, philosophy, and culture, mainly when they postulate values and knowledge of social life. The Indian Courts have time and again held that the study of religion in educational institutions cannot be considered against the secular concept of the Constitution.

International charters in consonance with Article 28

International Covenant on Civil and Political Rights

Article 18(4) of the International Covenant on Civil and Political Rights (ICCPR) states that the States that are parties to this Covenant will have to obey and consider the liberty of parents and guardians, as the case may be, thereby ensuring the religious and moral education of their children following their convictions. 

American Convention on Human Rights

Article 12(4) of the American Convention on Human Rights states that parents and guardians are entitled to provide moral and religious education to their wards that aligns with their convictions. 

Case laws

The trend of the Indian courts, when dealing with the question of religion and other related matters, has always been to confine the concept of religion to the main doctrine and the necessary rites related to it. The courts have repeatedly advised not to extend or exaggerate the concept and scope to secular or cultural or philosophical studies or activities. Let’s have a look at a few important case laws concerning Article 28 of the Constitution. 

Ms. Aruna Roy and others v. Union of India and others (2002)

Facts of the case

In the present case, a public interest litigation was filed by the petitioner under Article 32 of the Constitution of India. In the petition, it was primarily contended that the National Curriculum Framework for School Education (NCFSE), which was published by the National Council for Educational Research and Training, i.e., NCERT. However, the same was published without consulting the Central Advisory Board of Education (CABE). The main contention was that since it was published without consultation with CABE, it deserved to be set aside. Also, it is important to mention that the CABE has been in existence since 1935, and in all the previous similar events, the CABE was always consulted.

Issue involved

Whether the syllabus framed and published by the NCFSE is unconstitutional as it is violative of the rubric of secularism, which forms an important part of our basic structure. Also, is this Act violative of  Articles 21, 27, and 28?

Judgment and observation

The Apex Court held that the syllabus is not unconstitutional and, thus, is not violative of Articles 21, 27, and 28. The Court further went on to say that the syllabus, as opted and published by the NCFSE, is in no way imparting any religious instruction and, hence, is not in violation of Article 28. As far as consultation with CABE is concerned, the Apex Court stated that there is no such rule or notification from the government that makes consultation a prerequisite before publishing. Also, it is crucial to note that CABE is not a statutory body. Non-consultation cannot be held as a ground for setting aside the concerned syllabus. 

D. A. V. College Bathinda, Etc v. State of Punjab and Others (1971)

Facts of the case 

The Punjab Legislature, in 1969, in light of celebrating the 500th birth anniversary of Shri Guru Nanak Devji, established Guru Nanak University, Amritsar, to bolster Guru Nanak’s name. In the context of Indian and world civilization, the university decided to impart the teachings of Guru Nanak in its curriculum. 

Issues involved

Whether the study of the teachings of Guru Nanak falls under the category of a violation of Article 28(1).

Judgment and observation

The Supreme Court held that the Article does not ban the study of religions, especially when they impart life values and other crucial knowledge. The Court stated that it does not fall under the category of imparting religious instructions. 

Conclusion

To sum up, Article 28 of the Constitution talks about restricting or prohibiting religious instruction, as the case may be, in mainly three types of educational institutions, as discussed in this article. Article 28 mainly functions as a restraining provision for coerced religious instruction and worship. Enactment of such a prohibition was of utmost importance due to the secular character of the Constitution. However, these rights, which are guaranteed as fundamental rights, are not absolute in nature.

Frequently Asked Questions (FAQs) 

Whether moral instructions also fall in the purview of Article 28?

The Madras High Court, in the case of Kidangazhi Manakkal Narayanan v. State of Madras (1953), held that Article 28 (1) of the Constitution only bans the imparting of religious instruction in institutions completely aided by the States. It does not ban the imparting of moral instruction.

Is the academic study of the teaching and philosophy of any saint or religious identity a violation of Article 28?

Imparting academic study which provides knowledge of social life and other life values through the teaching and philosophy of any saint or religious identity is not a violation of Article 28. The Indian courts have opined on this view in a series of decisions. The complete emphasis in Article 28 is against imparting religious instructions or performing religious worship. 

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

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

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Administrative functioning of chief commissioner for persons with disabilities

By
Sneha Mahawar
-
0

This article is written by Arjun Ghosh from West Bengal National University of Juridical Sciences, pursuing Lord of the courses (judiciary test prep) at LawSikho. This article is an in-depth study of the Administrative functioning of the chief commissioner for persons with disabilities.

This article has been published by Sneha Mahawar.​​ 

Introduction

The Indian Constitution applies equally to all Indian citizens, regardless of their physical or mental disabilities. In addition, all residents of India, including individuals with disabilities, are guaranteed integrity and dignity under the Constitution. Similarly, Part III provides fundamental rights to all citizens. Article 14 and Article 15 of this part provide protection based on disability. Additionally, Section 20 of the Rights of Persons with Disabilities Act 2016 (the RPWD Act) also provides protection to persons with disabilities from all kinds of discrimination in employment. However, in reality these protections are not all fulfilled by the state. Though the legislation is viewed as a tool to promote positive change and equality, the disabled in our society still have a long way to go. Despite the fact that the Indian Constitution guarantees fundamental rights to all citizens regardless of their physical or mental disability, disabled people continue to suffer as a result of inaccessibility in many places in the twenty-first century.

In order to promote and provide equal opportunity for people with disabilities, the RPWD Act of 1995 and the RPWD Act of 2016 were both passed by the Ministry of Social Justice and Empowerment. The Ministry of Social Justice and Empowerment established the Chief Commissioner for Persons with Disabilities as a special advisory body for disabled individuals under this statute (CCPD). Within the Ministry of Social Justice and Empowerment, the CCPD is a consultative board. This deals with a wide range of cases involving the rights of people with disabilities (PWD).

The passing of the Persons with Disabilities Act of 2016 under Section 60 provided for an advisory board for the benefit of persons with disabilities. Both the Act and the regulations outline the mechanism for enforcing and protecting disabled people’s rights.

Role and responsibilities of the Board

The Office of the Chief Commissioner for Persons with Disabilities was created to ensure justice and fair opportunities for persons with disabilities, as well as to develop suitable guidelines for the operation of the advisory board under Chapter 12 of the Act.  

The Chief Commission for Persons with Disabilities’ main objectives are to defend the right to equal opportunity and participation in a wide range of activities, to put such rights and opportunities into practice, and to collaborate with other states. The CCPD  offers funds to states and union territories for the welfare of disabled individuals, with the money being disbursed to those in need. The chief commissioners have the authority to take any issue involving disability into their own hands right away or to act on the request of any aggrieved disabled citizen. The advice must adhere to all applicable rules and regulations, as well as guidelines and directions, in order to comply with the complaint. The Chief Commissioner for Persons with Disabilities has been given some civil court powers too. Even in order to deal with PWD matters The Commissioner’s office has proven to be an accessible and quick source of dispute resolution for PWDs. The bulk of cases brought before the Chief Commissioner concern employment, advancement, or service. Before the Chief Commissioner, petitioners were given reinstatement instructions and warnings to businesses to ensure that PWDs were not discriminated against.

Preparatory guidelines

Under the Chief Commissioner for Persons with Disabilities Regulation, a preparatory guideline has been provided for following the procedure, which helps to apply the rules and regulations. It is beneficial for improved access. It has been provided to maintain the application process in a healthy way. These concepts or precautionary methods have not been exhausted; nonetheless, depending on the circumstances, they may be implemented or rendered moot. Such reasons as to why people with disabilities are unable to exercise their rights will be assessed, and appropriate corrective measures will be recommended. The CCPD will keep an eye on disability-related treaties and other international regulations and provide recommendations for how they should be implemented. The CCPD will conduct and promote research on people with disabilities’ rights in order to take a positive and inclusive step toward improving their lives. Apart from that, CCPD will increase public knowledge about disabled people’s rights and the measures in place to protect them. The CCPD will be responsible for enforcing the Act’s provisions as well as disability-related schemes and programs. The Chief Commissioner must consult the Commissioners on any matter while carrying out his or her duties under this Act.

Jurisdiction of the Advisory Board

The PWD Act 2016 has been divided into a few sections, and these provisions deal with matters of judicial proceedings. Apart from this, the Act provides various provisions and kinds of guidelines that are safeguards for persons with disabilities relating to judicial proceedings. One of them is that it has been provided for the judicial proceedings of the Indian Penal Code, 1860.

National Review Meeting of the Advisory Board

Every year, the CCPD holds a review meeting to determine the status of work and examine the status of implementation of the rights of persons with disabilities (RPwD), as well as offer comments and recommendations. State Commissioners give an account of their work, including actions they’ve taken and achievements in the disability sector by various ministries of the state government during the year.

Monitoring funds policy of CCPD

Under Section 75 of the Persons with Disabilities Act, one of the key tasks of the CCPD is to supervise the use of funds disbursed by the Central Government for the benefit of PwDs. This money could be used to increase accessibility, inclusive education, and the development of creative skills for individuals with disabilities in the following sectors- finance sector, insurance, employment offices, local bodies, education sector, health sector, rural development area, public transportation, construction, etc.

State Review Meeting of the Advisory Board

In order to ensure the centre-state relationship over the years in a cooperative way and make the development grossly state, commissioners are required to review the status of implementation every year.

The Office of the Chief Commissioner for Persons with Disabilities (CCPD) organises a state review meeting. After conducting the state review meeting, the CCPD discusses the evaluation of the work among the accredited states. Commissioners for disabilities, chief secretaries of various departments such as education, health, rural development, transportation, public health, social secretary, and others are all present. Furthermore, the state reviews have been praised for their effectiveness in raising public awareness about the Act through the media, non-governmental organisations, and civil society organisations. The Chief Secretaries of the States have received the necessary directives for the successful implementation of the RPwD Act. It can also be used to create awareness among government employees working on the Act’s implementation.

Accessible India Campaign mission

The Accessible India Campaign policy has taken a great initial step to making India more accessible. On December 3, 2015, the Department of Empowerment of Persons with Disabilities took the initiative. Their goal is to make locations more accessible to people with disabilities. It may be argued that everyone benefits from an accessible physical environment, not just people with impairments. Obstacles and obstructions to indoor and outdoor amenities, such as schools, medical institutions, and workplaces, should be eliminated. Furthermore, all public venues, such as office buildings, would be included. Persons with disabilities have no barriers to entering and using all of the amenities at a train, market, or hospital, for example. This includes services, steps and ramps, hallways, access gates, emergency exits, and parking. On basis of disability, it could be expressed in a variety of ways. For instance, a visually challenged person needs correct orientation and knowledge of the school’s or university’s road structure. Similarly, a leg impairment necessitates the use of ramps. Ramps, for him or her, could improve accessibility at his or her university. The Office of the Chief Commissioner for Persons with Disabilities has taken the initiative to audit public places for accessibility, such as government offices, public transport, hospitals, stadiums, restaurants, markets, shopping centres, railway stations, bus stops, airports, religious places, etc.

Hence, the CCPD not only creates accessible places but also tries to raise the standard of reasonable accommodation for people with disabilities and ensure that necessary modifications are made within a reasonable time.

Redressal of grievances

The Chief Commissioner for Persons with Disabilities (CCPD) is authorised by the United Nations Convention to Represent the Rights of PWD. Also, (UNCRPD) under Sections 75 and 76 of the Rights of Persons with Disabilities (2016) Act, instructed the appropriate government to take steps to protect the rights and facilities provided to persons with disabilities.

The same provision also applies to redress grievances related to deprivation of rights and non-implementation of laws, regulations, bye-laws, and other policies enacted by the appropriate authority. Even in order to ensure justice and claim their rights, people with disabilities knock on the door of CCPD. Here, the CCPD office plays an important role and has a special focus on implementing the PWD Act and helping to get justice. It has been found that a large number of people with disabilities come to this CCPD’s office when any appropriate government agency or local authority deprives them of their rights.

Since its beginning in September 1998, the CCPD has received a total of 38,688 cases, with 38,505 cases disposed of by the end of December 2020. During the financial year 2020–21, 636 instances were registered from April 1, 2020, to December 31, 2020, with 1663 cases being resolved, including backlog from the previous year. The Chief Commissioner’s/recommendations in the above-mentioned cases/grievances have been posted on the Department of Empowerment of Persons with Disabilities’ website.

Virtual hearing of the grievances during the COVID 19

While the COVID-19 pandemic poses a threat to all, disabled people are badly affected as a result of the COVID-19 response’s environmental and institutional hurdles. Many disabled people have pre-existing medical issues that make them more vulnerable to getting the disease.

When infected with the virus, they have more severe symptoms, which leads to a higher rate of death. During a crisis, those with disabilities who rely on others for their everyday needs may become isolated. Even unable to live during lockdowns, those in institutions are particularly vulnerable, as proven by the staggering number of deaths in mental hospitals and residential care homes. People with disabilities are also included in those circumstances. On the other hand, the court hearing was attacked at the start of COVID-19, and a similar effect was seen on CCPD  due to COVID-19. As a result, the physical appearances of the complainant and respondent create a gap between 2020 and 2021. Therefore, on the Webex online meeting platform, CCPD changed to a virtual hearing as an alternative.

Implementation of the RPwD Act, 2016

The RPWD Act, 2016, was passed by Parliament. The Act marks a watershed moment in the lives of people with disabilities all over India. It includes measures for accessibility, reservations, and protection, as well as a goal of empowering people with disabilities. However, unless the law is executed, it will have no effect on the lives of the disabled.

Following its enactment, the majority of states still have not notified the Act. Under the RPWD Act of 2016, about 10 states have notified the federal government of their state rules. This displays not only apathy for people with disabilities but also disdain toward the core human rights guaranteed by the Act.

In addition to this, nursing homes, hospitals, restaurants, hotels, railways, airports, automobile companies, stadiums, public transport, office buildings, metro rail, banks, and passport offices were directed to register equal opportunity policies and appoint grievance redressal officers for the redress of grievances. Apart from that, the guidelines for equal opportunity policies to be submitted by various government and private organisations to the CCPD office have been finalised, and the policies received from the various organisations are being scrutinised based on the guidelines.

Conclusion

In this paper, I discussed administrative work and its functions in detail and tried to analyse all the relevant structures and their functions. In order to do so, I saw a huge progressive gap, such as our constitution, which has provided every type of protection for an Indian citizen in our country. But it is sad to see that a person with a disability faces a big challenge and has to deal with discrimination. Although after passing the statutes of the Person with Disability Act 1995 and the Person with Disability Act 2016, the confusion and difficulties have reduced a bit, there is still a long way to go for equal protection and full fulfillment of the rights of people with disabilities. The PWD Act describes the CCPD board’s ability to work with the problems and difficulties of the person with a disability, and the work level of the CCPD is very slow motion, which creates a reasonable gap, particularly in the rural area where progress is very slow. I realised that one of the reasons was a lack of representation and awareness among the general population regarding disabilities. To deal with these circumstances, I believe that a large number of representations are required. In order to achieve better representation, the CCPD should start working from the ground level. First, they should go to every village, rule the area in every corner of our country, and start a kind of camp that will be run by a state-level agency. And in dealing with this camp, they should provide basic and clear information about the disability. The awareness program should include the structure of education for the disabled according to the needs of the specific disability. CCPD will ensure that one percent of the disabled remain on the awareness programme team, creating a prima facie belief among the people, and the disabled person’s experience and understanding will make a ground-level lesion. It is extremely important for parents of children with disabilities. Due to a lack of awareness by parents, the child leaves school, which creates a gap between the disabled child and the non-disabled child. So, it is important for the parents of disabled children or someone else to be aware of the treatment of the disability and the needs of this particular child. Secondly, in order to deal with accessibility matters, ordinary people and able-bodied people should be aware of accessibility and have to learn how accessibility works. CCPD is only working in government places, such as hospital office buildings, schools, and colleges, but if the common people are not aware of the accessibility, the dream of full accessibility for the disabled will remain a dream forever.

 References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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Order 6 Rule 17 CPC

By
Rachit Garg
-
0

This article is written by Prabha Dabral from IMS Unison University, Dehradun. This article deals with Order 6 Rule 17 CPC. It discusses the rules relating to the amendment of pleadings and the consequences of failure to make appropriate amendments.

It has been published by Rachit Garg.

Introduction

The provisions regarding pleadings are found under Order VI of the Civil Procedure Code (CPC), 1908. A pleading is the written form of a statement that is drawn up by both parties to a suit. The statements in writing include the contentions and other details that the opponent needs to know to prepare his/her case for the trial. Statements given by the plaintiff are called a plaint, and the same given by the defendant is called a written statement. 

Pleading serves the purpose of bringing the parties to a definite issue so that there will not be any surprises at the hearing. It also diminishes delay, as both parties are aware of each other’s contentions and are clear on the real question of the parties to a suit. 

Sometimes, to maintain this clarity regarding the real issue between the parties, an amendment of pleading becomes necessary. Hence, the provisions under Order VI Rule 17 of the CPC come into the picture. This article provides general information on the concept of amendment of pleadings and also highlights the need and object behind it.

Importance of pleading and its relevance to Order 6 Rule 17 CPC

The concept of amending pleadings can be easily understood if we know the purpose of a pleading. Pleading not only defines the issues between the parties but also helps in determining which of the parties has the burden of proof. One can say that it plays an important role throughout the whole process of litigation, as it also helps in determining the range of admissible evidence that the party should adduce at trial.

The sole purpose of it is to make each party fully aware of the issues that will be argued so that each party can present appropriate evidence for them.

Rule 17 of Order VI is applicable in a situation where it becomes necessary for a party to make some changes to the pleading. This refers to the process of amending a pleading, which is explained in this article.

Amendment of pleadings : Order 6 Rule 17 CPC

The courts decide a case on the basis of its merits, i.e., on the basis of facts, proof, and evidence. Suppose the merits of the case are not completely mentioned in the pleading of a certain case, then the decision made by the court cannot be considered complete justice as the merits were not completely mentioned. It may also happen that the merits that were not mentioned held an important aspect regarding the case. 

Keeping this in mind, the courts are empowered to grant permission to amend the pleadings. Hence, the concept of amending pleadings steps in. Order VI Rule 17 of the CPC grants permission to the parties to the case to amend their pleadings at any stage of the proceedings. 

The proviso under this rule says that after the trial has commenced, an application for amendment shall not be allowed. However, it might be allowed if the court thinks that, in spite of due diligence, it was not possible for the party to raise the matter before the trial commenced. This statement can be explained using the following example.  A person by the name “A” files a lawsuit against “B.” The suit was filed in a hurry because it had some limitations.  So, after filing the suit, A realises that there are some important facts, proofs, or documents that he could have added to his pleading earlier but could not do so as they were not in his knowledge at that time. In this case, the court might give “A” permission to amend his pleading. It is the discretionary power of the court to grant permission or not.

Such application is not governed by the law of limitation. That means there is no limitation available against this provision, and an application to amend the pleading can be granted at any stage of the proceedings. 

Amendment Act of 2002

The proviso to Rule 17 inserted in the Amendment of 2002 restricts the power of the court to allow amendments of pleadings at any stage of the proceedings. It says that the court cannot grant permission for amendment after the trial has commenced. However, the court may allow the amendment if it thinks that, even after due diligence, it was not possible for the party to raise the matter before the trial.

The object of Rule 17 CPC

The object of Order VI Rule 17 is to empower the courts to try the case on its merits and allow all those amendments that are necessary for determining the real controversy. But it should never cause any injustice to the other party. 

Courts exist for the purpose of doing full and complete justice to the parties, and that can be done only when the real issue between the parties is heard. Hence, they are empowered to grant amendments to pleadings. The purpose is to determine the real issue between the parties and not punish them for their mistakes or negligence.

In Rameshkumar Agarwal v. Rajmala Exports Pvt. Ltd. (2012), the Supreme Court explained the object of the amendment of pleadings. It was held in this case that the courts must not refuse any amendments that are bona fide, necessary, and honest. The Court further stated that the object of this provision is to allow both parties to amend pleadings in a just manner. The basic consideration for permitting amendment should be to avoid a multiplicity of litigations. 

Valid reasons to amend the pleadings

Below are some of the instances wherein an amend to a pleading will be valid

  1. The proposed amendment is necessary to determine the real controversy in the suit.in
  2. The proposed amendment shortens litigation between the parties.
  3. An incomplete cause of action is mentioned in a suit.
  4. Some necessary facts were not included at the time when the suit was filed.
  5. Some wrong facts were mentioned in the pleading. For example, the property description mentioned is wrong.

Who can apply

Both parties can apply for an amendment to the pleading. Amendments can be made in the plaint by the plaintiff as well as in the written statement by the defendant. In the event that there is more than one plaintiff or defendant in a suit, then one of the plaintiffs or defendants can make such an application.

Notice for the amendment application

  1. When an application is made for the amendment of a pleading, granting such an amendment without hearing from the other party would be wrong. So, when an amendment is made to the plaint, a notice of the amended plaint must be served to the defendant.

Discretion of court

The Rule confers wide discretionary power upon the court to allow either of the parties to amend their pleadings. This discretion is supposed to be exercised by combining the judicial mind with well-established legal principles. The general rule says that leave to amend will be granted when the court has to take out the real controversy between the parties.

While allowing the party to amend their pleadings, a court generally considers these two aspects

  • Is amendment necessary to know the real controversy between the parties? 

This condition should be satisfied before granting leave to amend pleadings. It can be done by answering this simple question: Is the amendment necessary to determine the actual question in issue between the parties or not? Even if the court thinks that the party seeking to amend the pleading will not be able to prove that amended plea, he/she must be allowed the amendment. 

  • Is there any injustice done to the other party if the court allows the amendment?

Amendments can be allowed only if they can be made without doing injustice to the other party. 

Order 6 Rule 17 CPC : not exhaustive

The provisions under Order VI Rule 17 are not exhaustive in nature, i.e., the provisions are not exhaustive of the power of the court. It means that there can be other grounds for which an amendment can be granted, but they do not come under this Rule. Since the power of amendment is inherent in the court, one can resort to Section 151 of the Code for the amendment when Rule 17 does not apply.

Reasons for refusing the amendment of pleadings

If an application for an amendment is rejected, then filing a second application based on the same facts is not maintainable. But if the circumstances change, the application may be filed again. The following are the reasons for which the court may refuse such an application-

  1. The point of the amendment is not necessary for determining the real question of the  controversy
  2. The amendment is of such a nature that it completely changes the fundamental character of the suit.
  3. The proposed amendment of a claim or relief is barred by time as per the limitation clause
  4. The proposed amendment takes away the legal right accrued in the favour of other parties.
  5. The application of the amendment was not made in good faith.

Appeal

No appeal lies against an order allowing or disallowing an application for amendment. This is so because such an order is neither a decree under Section 2(2) nor an order against which an appeal can be filed under Section 104 read with Order 43 of the Code. However, such an order can be questioned when an appeal is filed against a decree. 

It is open to the aggrieved party to challenge such an order by filing a writ petition under Article 226 or Article 227 of the Constitution of India, 1949. Generally, a high court will not exercise its jurisdiction to interfere with the order of the trial court until and unless such an order has caused any serious prejudice to the aggrieved or has caused a miscarriage of justice. 

Failure to amend Rule 18 CPC

After a party is granted leave for amendment, he/she is given a specified time period within which the amendment has to be made. In case, the time limit is not specified, it is presumed that within 14 days from the date of order, the amendment is to be made. If the party has not made any such amendments within the time, he shall not be permitted to amend after the expiry of the specified time unless the court extends the time.

The failure to amend does not result in the dismissal of the suit. It is up to the discretion of the court to extend the time for amendment even if the specified period has expired. In an appropriate case, the court may allow the party to amend in spite of the delay in the payment of further costs. 

In the case of Pahali Raut v. Khulana Bewa (1985), the Orissa High Court held that “we cannot be oblivious of the facts of life, namely the parties in courts are mostly ignorant and illiterate – unversed in law. Sometimes their counsel are also inexperienced and not properly equipped”

In B.K.N. Narayana Pillai v. P. Pillai and Ors. (2000), the Supreme Court held that a mere delay in filing the application cannot be a valid ground for its rejection. It was held that in cases where the other party can be compensated by costs for the delay, the application must not be rejected. It was stated that the role of courts is to promote the ends of justice. The power of courts to allow amendment in pleadings is to provide full justice to the parties and not to defeat them with something that can be easily rectified. 

Recent Judicial Pronouncement on Order 6 Rule 17 CPC

Life Insurance Corporation of India (LIC) vs. Sanjeev Builders Pvt. Ltd. And anr. (2022)

Facts

In this case, a suit for the specific performance of the contract was filed before the Bombay High Court. The plaintiff here filed an application for amendment of the plaint before the Court. Originally, the suit claimed damages of 1,01,00,000/- and by the amendment, the damages were prayed for 4,00,01,00,000/-. The Court allowed the application for amending the plaint.

Being aggrieved and dissatisfied with the above order, the defendant filed for an appeal against this order passed by the High Court of Bombay. He submitted that the High Court should not have permitted the plaintiff to amend the plaint, that too, after a period of thirty-one years. The case was then moved to the Supreme Court. 

Held

The Supreme Court held that a mere delay could not be a ground for rejecting the application for amendment of the plaint. However, the delay in filing the application can be compensated by costs. The Court dismissed the appeal and laid down the following guidelines regarding the amendment of pleadings. 

  1. All the amendments are to be allowed if they are necessary for determining the real question of the issue between the parties. But it should not cause any injustice to the other side.
  2. The prayer for amendment is to be allowed if: 

(i) The amendment is required for the proper adjudication of the matter.

(ii) To avoid multiplicity of proceedings.

  1. The amendments are not generally required to be approved if-

(i) The amendment raises a time-barred claim.

(ii) The amendment changes the nature of the suit.

(iii) The prayer for the amendment is mala fide.

(iv) The other party is losing any of its valid defences if the amendment is allowed.

  1. Where the amendment enables the court to render a more satisfactory decision, an application must be allowed.
  2. The application for the amendment is to be allowed if it is intended to rectify the absence of certain material particulars in the plaint.
  3. The amendment is justifiably allowed if it is intended to rectify the absence of particulars in the plaint.
  4. If there is any delay in applying for the amendment, it can not be rejected solely on this basis.
  5. The amendment sought must only be made regarding the relief in the plaint. Amendments must be made to o those facts which are already pleaded in the plaint. If it changes the nature of the suit or the cause of action, then it must be disallowed.
  6. The court must be liberal in its approach when the amendment is sought before the commencement of the trial.

Conclusion

Pleadings are the backbone of any legal suit. It guides the parties in forming their arguments. The provisions of Order VI of the Code of Civil Procedure lay down the fundamental rules of pleading. Rule 17 under this Order speaks about the amendments to the pleading. These provisions are there with the aim of striking a balance in society and achieving the ultimate end of justice.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

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

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