Section 309 CrPC

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November 22, 2022

This article is written by Kishita Gupta and Naveen Talawar. The article discusses Section 309 of the Code of Criminal Procedure, 1973 in detail with the help of various case laws.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

If you are a Bollywood fan, then you have definitely heard the famous dialogue “tareek pe tareek!” Well, these tareeks, or dates, are very normal in the Indian judicial scenario. Sometimes it takes years of court proceedings to reach the final judgment, even after the policy of the Indian judicial system requires it to be heard without any delays, to meet the saying that “justice delayed is justice denied.” We also witness unnecessary remands made by the courts in certain cases from time to time. Thus, to discourage unnecessary adjournments by the judges, Section 309 of the Code of Criminal Procedure, 1973, comes into play. In this article, the author will discuss the provision mentioned above in detail while also going through various case laws.

The Code of Criminal Procedure, 1973, is a procedural law that outlines the procedures to be followed in a criminal case as well as responsibilities for the effective, efficient, and fair administration of justice. The primary goal of a judicial system is to administer quick and fair justice.

Section 309 of the Code of Criminal Procedure, provides that every investigation or trial must proceed as quickly as possible. The Section directs the courts to expeditiously proceed with criminal cases on a day-to-day basis until all witnesses present have been examined. Furthermore, it gives the magistrate the authority to remand the accused to judicial custody if necessary following the taking of cognizance of the offence or the commencement of the trial.

This section also governs the power of criminal courts to postpone or adjourn proceedings, emphasising the need to avoid indefinite stays of action in order to prevent evidence loss due to elapsed time and unnecessary harassment of the accused. Positively, Section 309 of the Code of Criminal Procedure provides for quick investigations and trials. The said provision applies to all criminal proceedings. In exceptional circumstances, a court may postpone a case after providing justification.

What does Section 309 CrPC say

Section 309(1) CrPC

A plain reading of Section 309(1) CrPC says that if the court determines that a delay in the court proceedings beyond the following day is required, it should record the reasons for the same. Otherwise, every inquiry or trial must proceed day by day until all witnesses present have been cross-examined.

However, there is one exception to the above power of the court. It is that the inquiry or trial must be concluded within two months of the date the charge sheet was filed if the offence in question relates to the offences mentioned under Section 376, Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, or Section 376DB of the Indian Penal Code, 1860. This proviso for sub-section (1) was inserted in the CrPC through the CrPC Amendment Act, 2008.

The Criminal Law Amendment Act, 2013, replaced sub-section (1) and the proviso with a new sub-section (1) and proviso. The trial must be conducted on a daily basis in accordance with the new sub-section (1), and adjournments should only be permitted when “absolutely necessary” and for reasons that will be noted. The new proviso states that the investigation into the offences listed there must be finished within two months of the chargesheet’s filing.

Illegality of detention order

According to the Supreme Court in Ram Narayan Singh v. The State of Delhi (1953), this Section mandates that any order made by a court under this section must be in writing and requires a magistrate to “remand by warrant the accused in custody” if he decides to adjourn a case. It was decided that the accused’s continued custody after the order of adjournment was unlawful when a magistrate conducting a trial adjourned a case by order in writing, but there was nothing in writing on the record to indicate that he had also made an order remanding the accused to custody.

According to State (CBI) v. Dawood Ibrahim (1997), the Court that takes cognizance of an offence in which the accused was subsequently arrested during an investigation may, in the exercise of its authority under Section 167, order the accused’s detention in police custody.

It was observed in another case, Mahesh Chand v. State of Rajasthan (1985), the accused was not entitled to be released on bail since the detention order was illegal.

In yet another judgment, Lokendra v. State of U.P. (1996), bail was requested in a murder case on the grounds that the remand order was invalid under Section 309(2) of the Criminal Procedure Code and that proper reasoning for detention had not been established. The Allahabad High Court denied bail and held that the reasons considered need not be specific; rather, they should only explain why the case was adjourned on a particular date. The fact that the presiding officer was absent or had been moved was sufficient. The Court ruled that the current detention order was legal and that the accused could not benefit from any prior technical mistake.

Section 309(2) CrPC

A general understanding of Section 309(2) CrPC is that the court may decide that the delay is necessary or advisable at the start of an inquiry or trial after taking cognizance of the offence or after the court trial has begun. Further, on the basis of the decision to delay, it may occasionally, for reasons to be recorded, postpone or adjourn the same on the terms it sees fit for the amount of time it considers reasonable and may, by a warrant, remand the accused if in custody.

As noted in the case of Emperor v. Md. Ebrahim (1941), a case cannot be postponed indefinitely under this clause. A sine die adjournment is a prolonged delay. The goal of criminal law is to swiftly bring those who have been accused to justice so that they can be punished if they are proven guilty and released if they are found innocent. The Public Prosecutor, who is the proper person to bring the matter before the court, can be contacted directly if the Government wishes to submit a petition or request to the court for an adjournment.

However, the following condition must be fulfilled if the judge remands an accused to custody:

No Magistrate may hold an accused person in custody pursuant to Section 309 of the CrPC for a period longer than fifteen days at a time.

The judgment in M. Sambasiva Rao v. Union of India (1973) noted that, in all, Section 167 of the CrPC allows for 15 days. Under that clause, the total length of the remand cannot exceed 15 days. According to this clause, the magistrate may order the accused to be held in prison for up to 15 days at a time, and there is no cap on the number of times this can be done. It is incorrect to claim that a remand order is defective because the accused has not been before the magistrate.

It was noted in A. Narayan Reddy v. State of Andhra Pradesh (1992) that when further orders of remand are passed without the production of the accused prior to taking cognizance, the defendant is entitled to bail. However, it was determined that the detained accused was entitled to the grant of bail and that he could petition the High Court under the Cr.P.C. or under Article 226 of the Constitution of India to secure his release when successive orders of remand were issued by the Court without the production of the accused before taking cognizance.

It was observed in Bombay Municipal Corporation v. Suresh Gupta (1986) that the provisions of this Section are not met by an order that permanently stays criminal prosecution. While the judgment in Rabindra Naik v. State of Orissa (1994) noted that it was deemed legal to keep the accused in custody for an additional 15 days while he was away.

Furthermore, unless there are exceptional circumstances that must be documented in writing, the judge shall allow no delay in cases where witnesses are present, without their examination.

The Supreme Court in Mohd Khalid v. State of W.B. (2002), while relying on the judgment given in State of U.P. v. Shambhu Nath Singh (2001), observed that the court should not grant liberal adjournments in cases where the witnesses are present. The Supreme Court ruled that the trial court shouldn’t have deferred the case on request if the witness was present and his or her initial cross-examination was complete.

In Himachal Singh v. State of Madhya Pradesh (1990), in a trial before the Special Judge, the defence attorney for the accused requested a postponement due to the Senior Counsel’s illness, but the Madhya Pradesh High Court denied the request. The Court also cross-examined the witnesses, which the attorney was unprepared to do, and after that, the Court released the witness. It was decided that the case hearing should have been postponed to give the advocate more time to be ready for the cross-examination.

The next condition is that no adjournment shall be granted by the court only to allow the accused to raise objections to the proposed punishment that would be applied to him.

The main goal is to reduce the number of adjournments. However, this does not imply that the proviso prevents the court from adjourning the case even when doing so would serve the interests of justice. The court is not forbidden from giving an adjournment in important situations involving life or death to fulfil the necessity of justice as stated in Section 235(2) of the Code, even though it may not give the accused the right to one.

It is customary to record both the conviction and the punishment on the same day. The court does not have to hear from the accused on the issue of sentencing when a conviction under Section 302 is recorded and the sentence of life in prison is requested to be awarded. The third proviso to Section 309(2), however, does not prevent the court from granting an adjournment to allow the accused to present evidence in opposition to the proposed sentence when the death penalty is being considered. If the accused is out on bail, the Sessions Court or Special Court must order that they be brought into prison right away and held in custody until the sentencing issue is resolved.

The following are the further conditions:
No party may request an adjournment unless the circumstance is out of the party’s control;

The High Court’s decision in State (Delhi Administration) v. Vishwanath Lugnani (1981) not to adjourn the case was deemed reasonable after the prosecution spent an unreasonable amount of time calling witnesses and questioning them.

The pleader of a party may not be excused from appearing because of an engagement in another court;
The court may also record the statement of the witness and pass orders, dispensing with the examination-in-chief or cross-examination of the witness, as per the requirements of the case. This may be done by the court when a witness is present in court but a party or his pleader is not present, or the party or his pleader, though present in court, is not ready to examine or cross-examine the witness.

The Supreme Court in the case of Thana Singh v. Central Bureau of Narcotics (2013) determined in a case involving the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, that although the amended clause was added to the statute book in 2009, the notification necessary to make the alteration effective had not been made. The fourth proviso deserves to be informed right away, the Supreme Court stated.

Explanation of Section 309

Explanation 2 of Section 309 says that, in proper circumstances, the payment of certain costs by the prosecution or the accused may be one of the conditions on which an adjournment or delay is granted.

This certainly gives the court the right to impose costs on the party that has incurred needless expenses as a result of the other side’s actions. If there are exceptional conditions, this will be done.

The party requesting the delay is responsible for covering the costs. When a case hearing is postponed due to a transfer request, the magistrate is not permitted to award the adjournment costs.

An order in Ichab Sheikh v. Khirode Kumar Ghose (1944) requiring the accused to pay the complainant’s costs in cases where the accused requested an adjournment due to illness left the magistrate with no choice but to adjourn the case, even though he might issue a warrant for the accused’s arrest.

Scope and objective of Section 309 CrPC

Section 309(1) of the Code of Criminal Procedure states that every inquiry or trial must be completed as soon as possible. For example, once the witness examination begins, it must continue every day until all of the witnesses present have been examined unless the court decides that a postponement beyond the next day is required for reasons to be noted.

According to Section 309(2), if the court finds it necessary or advisable to postpone or adjourn any inquiry or trial after taking cognizance of an offence or the commencement of a trial, it may do so from time to time. The court can set the terms and time for the next hearing as it sees fit. However, the court must record the reasons for postponing or adjourning any inquiry or trial. The accused may be remanded with a warrant by the court if he has already been taken into custody. However, no Magistrate may hold an accused person in custody under Section 309 for more than fifteen days at a time.

Further, if there are witnesses present, no adjournment or postponement may be made without special reasons being specified in writing. Furthermore, no adjournment shall be granted solely for the purpose of allowing the accused to show cause against the sentence proposed to be imposed on him.

In accordance with Explanation 1 to Section 309 of the Code, remand is a reasonable cause if there is enough evidence to raise a suspicion that the accused may have committed an offence and it appears likely that more evidence will be obtained by a remand. The terms of an adjournment or postponement may, in appropriate circumstances, include the payment of costs by the prosecution or the accused, according to Explanation 2 of Section 309 of the Code.

The objective of enacting Section 309 of the Code was to discourage pointless adjournments. The policy of the law is that criminal cases should be resolved as soon as possible. It was stated in Janikamma v. Appanna (1957) that it is a fundamental rule of criminal law that criminal prosecution should be completed as soon as possible and without undue delay. The intention is to keep the accused from being harassed unnecessarily and to keep evidence from being lost due to the passage of time.

Applicability of the section

The section applies to all cases involving criminal trials and inquiries about suspects in custody after arrest. The main purpose of this section is to expressly direct courts to conduct speedy trials. There are currently crores of pending cases in our country, with the primary cause being lengthy delays in their trials and inquiries. However, the section does not entirely require the judiciary to resolve cases anyhow, it also provides that hearings can be adjourned in certain circumstances, and the concerned judge must record the reasons for the same.

Adjournment of cases for petty reasons

The courts are overloaded with cases, and cases are still pending as a result of adjournments that were granted on dubious grounds. The court has the authority to adjourn and postpone the hearing under Section 309 of the Code. This postponement is typically granted after the court considers the justification for doing so on a case-by-case basis.

A number of case laws discussed various reasons for adjournments, such as the inability of the council to conduct a case, the need for a reasonable time to prepare for the case, the sickness of either party, his council, or his witnesses, etc. On the other hand, courts have the right to refuse an adjournment for a variety of reasons, including the non-examination of the witness present in court, the inability of counsel to appear because they are representing clients in other proceedings, the abuse of the court process, etc.

The Supreme Court stated that there are no clear guidelines governing the court’s authority to grant or deny an adjournment in the case of Sukhpal Singh v. Kalyan Singh (1962). However, the court should grant it based on reasonable grounds and after considering the facts and circumstances of each case. The reasoning for the adjournment must therefore be recorded. Currently, corruption and power play a crucial role. These factors can be easily used to delay a trial and obtain an adjournment of proceedings on various grounds, even if the request is unreasonable. They thus undermine the intent behind the provisions of law.

The Malimath Committee also advised courts to refrain from using adjournments to postpone both the trial and the administration of justice. In order to deal with this situation, the committee suggested that the exceptional requirements that must be met in order for adjournments to be granted be clearly defined.

A procedure that did not guarantee a reasonably quick trial would violate Article 21

Though there have been cases where the Supreme Court has directed the dropping or discontinuing of proceedings where the delay has harmed the ends of justice, it was only in the case of Hussainara Khatoon v. Home Secretary, State of Bihar (1979) the Court declared that speedy trial, by which we mean reasonably expeditious trial, is an integral and necessary part of the fundamental right to life and liberty enshrined in Article 21. Since then, the Court has developed extensive case law on speedy trials, but it has never specified what constitutes a reasonable time frame for completing trials.

In contrast, a Supreme Court Constitution Bench of five judges declined to set time limits beyond which no criminal proceeding should be allowed to continue in Abdul Rehman Antulay v. R.S. Nayak (1991), when it was requested that they do so because, without such limits, the exposition of Article 21 in the Maneka Gandhi and Hussainara Khatoon cases would remain a mere illusion and a platitude. According to the court, it is “neither advisable nor practicable” to set a time limit for criminal trials.

Later decisions of the Supreme Court, namely Common Cause, a Registered Society v. Union of India (1996) and Raj Deo Sharma v. State of Bihar (1998), established time limits within which certain IPC offences must be tried. In these cases, the court ordered that the accused be released on bail or that the case be dismissed if the trial was not finished within the specified time. However, in P. Ramachandra Rao v. State of Karnataka (2002), a seven-judge Constitution Bench overruled these judgments. The Court emphasised the significance of a speedy trial in criminal cases, acknowledged that it was still elusive in practice, and noted that it was outside of its purview to set guidelines as to the time frame within which a trial ought to be completed.

The court observed that regardless of how broadly we interpret Articles 32, 21, 141, and 142 of the Constitution, making such directives apply to all cases in the present and future amounts to legislation, which, in our opinion, cannot be done by judicial directives and within the scope of the judicial law-making power available to constitutional courts. The line between the two is thin but perceptible; courts can declare the law, interpret it, and close gaps in the law that are obvious, but they cannot enter the area of law that it was not intended for.

Meaning of the word remand and its relevance here

Remand implies “to commit an accused person back to custody” or “to send a soldier back to his post.” Remanding a case in civil law refers to returning it to the original lower court.

The phrase “the case is thus remanded back to the trial court” is sometimes used inaccurately instead of the term “remand.” That’s not an appropriate usage of the term. Simply stating that the case has been remanded to the trial court will do.

Both a verb and a noun are used with the term “remand.” It means “to re-commit an accused person to the same custody from which he was released” in the context of this sentence. “Remand,” when used as a noun, refers to a judicial order for recommitment. For instance, the accused is being held on remand, i.e., without bail.

Only three sections of the Criminal Procedure Code (Cr.P.C.) employ the term “remand,” Section 209(a), “remand during committal procedures,” Section 209(b), “remand till the conclusion of trial,” and Section 309(2), “remand when the investigation or trial is postponed.” At the post-cognizance stage, all of the aforementioned regulations are applicable. The word “remand” was appropriately selected by the Code’s creators in both Sections because, in both of these cases, the offender is returned to the same legal custody from which he was previously released.

In Gourishankar v. State of Bihar (1972), the Supreme Court declared that such remand after the initiation of an investigation or trial can only be to “judicial custody” and not police custody, interpreting Section 309 CrPC. In State of Kerala v. Sadanandan (1984), Justice Bhaskaran Nambiar of the Kerala High Court expressed the same opinion regarding Section 309. In paragraph 6 of CBI v. Anupam J. Kulkarni (1992), the Kerala High Court’s judgment was appreciated.

Difference between Section 167 and 309 CrPC

The Code’s Section 167 discusses a person’s custody throughout the inquiry phase, which can either be judicial custody or police custody. If a person is arrested at a later date while the investigation is ongoing, this Section does not apply to them. However, when the court takes cognizance of the situation, Section 309 applies to custody, and only judicial custody may be involved.

Police may only conduct investigations while a person is being held in custody with the judicial magistrate’s approval. Only with the court’s permission can someone who is being held in custody be questioned. Section 309(2) is applied if the court takes cognizance of the case; otherwise, Section 167 is applied during the investigative stage. In the case of CBI v. Dawood Ibrahim Kaskar (1997), the same was reiterated. The Hon’ble Apex Court ruled that there is no way to dispute the distinction between detention in custody under Section 167 and the remand and custody mentioned in the first proviso of Section 309(2). While detention under the latter pertains to the stage of inquiry and can initially be either in police custody or court custody, remand under the former relates to a stage after cognizance and can only be in judicial custody.

While an accused person is in the custody of the concerned magistrate when they are in judicial custody, the police have physical custody of them when they are in police custody. In the former, the accused is kept in a police station holding a cell while in the latter, a jail.

The investigating agency would be denied the chance to question a person arrested during further investigation, even if it could persuade the court, upon the production of sufficient materials, that his detention in its police custody was necessary for that purpose. If Section 309(2) is interpreted to mean that after the court takes cognizance of an offence, it cannot exercise its power of detention in police custody under Section 167. Therefore, the phrase “accused if in custody” in Section 309(2) refers to an accused who was present in court at the time that the charge was filed against him or when the investigation or trial was going, and not to an accused who is afterward detained during a subsequent investigation.

The first classification of accused can only be remanded to judicial custody in light of Section 309 (2), but the second classification of accused would be controlled by Section 167 for the duration of the ongoing investigation.

The custody provisions under Section 309 CrPC and Section 167 CrPC are very distinct. Prisoners awaiting trial are designated for the detention described in Section 309. This was observed in the cases of In re Nagendra Nath (1923) and Babubhai Parshottamdas Patel v. State of Gujarat (1982).

Key judicial pronouncements on Section 309 CrPC

Vinod Kumar v. State of Punjab (2015)

The Supreme Court expressed its serious distress about the use of dilatory strategies and the non-application of Section 309 in Vinod Kumar v. State of Punjab (2015) and declared that it was not desirable to give adjournments for unacceptable grounds. The Chief Justices of all High Courts received instructions in this regard while summarising the duties of the Court during the trial.

Akil @ Javed v. State of NCT of Delhi (2013)

The Supreme Court rejected the practice of prolonging adjournments during trials in Akil @ Javed v. State of NCT of Delhi (2013). It emphasised the urgent need for the court handling cases involving significant offences to continue the trial on a daily basis in de die in diem until the conclusion of the trial as required by Section 309.

Mohammad Daud Alias Mohd. Saleem v. Superintendent of District Jail (1992)

When a Court issued an order in Mohammad Daud Alias Mohd. Saleem v. Superintendent of District Jail (1992), directing the superintendent of the district jail to hold the accused until further orders, the order was declared unconstitutional because it did not comply with Section 309 of the Criminal Procedure Code. Further, it was decided that Section 309 of the Criminal Procedure Code does not allow for remand to detention to last indefinitely; rather, it must end when the adjournment does, and not after. The reasons for remanding the accused do not have to be recorded, but the reasons for adjournment must be stated. The warrant for remand to intermediate custody should typically be written in the appropriate proforma, the Court further noted.

Landmark judgments

In State of Maharashtra v. Rasiklal K. Mehta (1978), the Bombay High Court stated that it is a fundamental rule of criminal law that criminal prosecutions should be concluded as quickly and without unnecessary delay as possible. The objective is to prevent the accused from being subjected to unnecessary harassment and the loss of evidence due to the passage of time. It is well known that if the prosecution is delayed indefinitely or for a very long time, crucial evidence may be lost due to the passage of time, making it impossible to present the evidence at the trial.
It was determined by Lt. Col. S.J. Chaudhary v. State (Delhi Administration) (1984), that it is most expedient for the trial before the Court of Session to move forward and be handled continuously from its beginning to its conclusion. Not only will it lead to the expedition, but it will also eliminate manoeuvre and mischief. The trial should move forward on a daily basis in the interests of both the prosecution and the defence. It is crucial to understand that Sessions’ cases cannot be tried piecemeal. Except in cases where an adjournment is absolutely necessary, the trial must continue ‘de die in diem’ until it is finished once it has started.
In the State of U.P. v. Shambhu Nath Singh (2001), the practice of courts adjourning cases without questioning witnesses when they are present has been condemned by the Supreme Court. It was observed that the trial court should understand that the witness is a responsible citizen who has other work to attend to in order to make a living and that a witness cannot be required to appear repeatedly just for the convenience of the concerned advocate. If an advocate requests adjournments to delay questioning witnesses without a valid reason, they are failing in their duty to protect the witnesses from intimidation and hardship. If an advocate uses filibuster tactics, this constitutes professional misconduct.
In Mohd. Khalid v. State of West Bengal, (2002), the Supreme Court emphasised the importance of Section 309 Cr.P.C. provisions and stated that the trial court should not simply adjourn a case when a witness is present and his examination-in-chief is complete unless there are compelling reasons.
The Supreme Court in Akil @ Javed vs State Of Nct Of Delhi (2012) ordered all trial court judges to strictly follow Section 309.
In the case of Hirdeesh Sahu v. State of Madhya Pradesh (2021), the Madhya Pradesh High Court ordered all trial court judges to ensure strict adherence to Section 309 of the Cr.P.C., particularly in sensitive cases like murder, kidnapping, and rape. It further stated that the provision should be observed religiously, without fail, and cases should not be adjourned at the drop of a hat.

Conclusion

To conclude this article, we can say that Section 309 is a remedy and a step towards speedy trials. This provision does not allow unreasonable and unnecessary adjournments by the judiciary, which results in speedy justice. The Indian judicial system already has cases pending over several years and sometimes accused spend most of their punishment waiting in judicial custody itself. Section 309 gives certain relief in this aspect.

This provision permits speedy proceedings to bring charges against the guilty and deliver justice to the innocent. Not every person accused of committing a crime is automatically guilty. There are more and more false accusations, misrepresentations, misidentifications, and malicious prosecutions.

This section appears to be an excellent tool for ensuring that innocent people are not wrongfully punished. Similarly, even if someone has violated the law, they have the right to a fair trial and punishment rather than being held in custody for an extended period of time while their case is being investigated. Another significance of this section is that it may assist in the hearing of witnesses and the submission of relevant evidence as soon as possible, with no loss.

References

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Section 205 CrPC, 1973

By

Rachit Garg

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November 21, 2022

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This article is written by Upasana Sarkar, a student at Jogesh Chandra Chaudhuri Law College. This article aims to provide an understanding of Section 205 CrPC, 1973. It provides a detailed analysis of Section 205 CrPC and the provision for exemption from personal appearance by the accused.

It has been published by Rachit Garg.

Table of Contents

Introduction

The Code of Criminal Procedure,1973 states that the accused should be given a chance to defend himself. The Indian legal system always follows the principle that if a hundred guilty persons are acquitted, then also one innocent should not be punished. Therefore, an accused person is always considered innocent unless and until he is proven guilty in the eyes of the law. If his guilt is proven, he gets convicted. He is then sent to prison to serve his sentence. An accused has certain rights during and after the trial. This legal system has certain provisions that are largely in favour of the accused. One such provision is Section 205 of the Criminal Procedure Code. This section talks about the accused’s exemption from personal appearance in court under certain circumstances.

Provisions under which the accused can seek exemption from personal appearance

The general rule under Section 273 of the Criminal Procedure Code is that the evidence taken in the course of trial shall be taken in the presence of the accused as it is made for protecting the interest of the accused. But under certain circumstances, the CrPC has provisions to exempt an accused from making a personal appearance. Though it is not a right of the accused but at the discretion of the court.

This exemption is granted under Section 205 or Section 317 of the CrPC. When both sections are ready together, it becomes clear that the court is empowered to exempt an accused from making a personal appearance. This exemption can be given at all stages. A person can be exempted right from the stage of commencement of the proceedings under Section 205. On the other hand, under Section 317, the accused gets this right after the commencement of an inquiry or trial. Thus, the accused is entitled to seek exemption from personal appearance from the initial stage to the final stage. He is not required to appear personally to seek an exemption. Section 205(1) lays down that the magistrate, at the stage of issuing summons, may dispense with the personal attendance of the accused if he finds reasons to do so and permit him to appear through his plea.

In the case of Ajit Kumar Chakraborty v. Serampore Municipality, (1989), it was held that even in the absence of any prayer by the accused for exemption from personal appearance, it could be granted by the magistrate at his discretion.

Difference between Section 205 and 317 CrPC

Section 317 deals with the exemption from the appearance of the accused in trial in a broader sense. It states that if the judge or magistrate is satisfied, the trial can be held without the accused under certain circumstances, which are as follows:

the personal attendance of the accused before the Court is not compulsory in the interest of justice, or
the accused continuously disturbs the Court proceedings, or
if the accused is represented by a pleader, he may be exempted from attending court at the inquiry or trial stage.

Section 205 also deals with the accused’s exemption from personal appearance, but in a narrower sense.

Tabular representation of difference between Section 205 and 317 of the CrPC

Section 317 CrPC	Section 205 CrPC
The power under Section 317 CrPC can be exercised by both the magistrate as well as the session judge.	The power under Section 205 CrPC can be exercised only by a magistrate.
Sec 205 would be applicable when the proceedings have begun before the magistrate and charges are still left to be framed.	Section 317 would be applicable during the trial stage, i.e., after the charges have been framed.
Under Section 205 CrPC, an application can be filed at the time of the accused’s first appearance, claiming the exemption from appearance.	Under Section 317 CrPC, the court is empowered to dispense with the personal attendance of the accused for proceeding with further steps in the case at the stage of inquiries and trials.

Section 205 CrPC: a detailed analysis

Section 205 of the Code of Criminal Procedure, 1973, states that the magistrate may dispense with the personal attendance of an accused if he thinks it is reasonable to do so at his discretion.

The main reason for the formulation of this Section is based on Section 273 CrPC. It contemplates that evidence has to be taken in the presence of the accused. Section 205 provides an exception to that. In some cases, the evidence can be taken in the presence of the pleader at the discretion of the magistrate. Such discretion can be exercised in rare cases under certain circumstances where it seems reasonable.

Scope and object of Section 205 CrPC

Scope of Section 205 CrPC

Section 205 of the Code of Criminal Procedure is introduced to grant the accused exemption from personal appearance because of his personal problems. He might face certain difficulties appearing before the court during the proceedings because of the distance factor while residing or carrying on business purposes

Object of Section 205 CrPC

The object of Section 205 is to provide an alternative solution to the accused where he cannot be present in person at the Court during the trial and permit another person to appear on his behalf who will act as his pleader.

The Section also says that the magistrate can also summon him at any time during the trial when he finds his attendance necessary for inquiring into or trying the case at any stage of the proceedings.

Is the presence of the accused at the time of application under 205 CrPC mandatory

Under Section 205 CrPC, it is mandatory for the accused to be present at the first hearing when an application for exemption from appearance is pronounced in court; otherwise, the magistrate may reject the application then and there. The accused is required to make this application in the first stage without fail; otherwise, the application will not be maintainable at a subsequent stage.

Can an accused be granted exemption from personal appearance under Section 205 CrPC

Under Section 205 of the Code of Criminal Procedure, 1973, a magistrate has the power to grant the accused an exemption from personal attendance in court when he is represented by his pleader. The pleader will be present during the trial on behalf of the accused. The magistrate can grant the accused an exemption from personal appearance only after going through the facts and circumstances of the case.

Conditions imposed for grant of exemption under Section 205

The various conditions that are imposed for the grant of exemption under Section 205 are as follows:

The pleader of the accused would not dispute the accused’s identity as a particular accused in the case;
A counsel will be present in his absence on all posting dates;
The accused has no objection to taking evidence in his remission;
That the accused should be present on such dates when called upon by the court.

Factors considered by the court for grant of exemptions

Elements considered by the court for granting exemptions are as follows:

nature of allegations
behaviour of accused
distance factor while residing or carrying on business
difficulty in personal appearance of the accused
prejudice to the complainant

Situations where a magistrate may implement Section 205

There is no specific rule to identify under what circumstances an accused can be exempted. It varies from case to case. It is based on the discretionary power of the magistrate or judge. But it cannot be used arbitrarily without reason. It can only be granted under specific conditions.

Precautions need to be taken by the magistrate while granting exemption under Section 205 CrPC

When a person is exempted from personal appearance at the discretion of the magistrate, he may ask the accused to give an undertaking by way of an affidavit on the following subjects:

A narration of facts to satisfy the court of his actual difficulties to be physically present in the court during the trial. One of the important factors is physical distance.
An assurance that no prejudice would be caused to him by dispensing with the accused’s personal appearance during such questioning in any manner.
An affirmation that he would not raise any grievance on that score at any stage of the trial.

An assurance that, if at any stage of the proceeding, the accused is required to appear in court during the trial, he shall have to appear in person.
An undertaking to the satisfaction of the court that he would not dispute his identity as a particular accused in the case.
That a counsel, as a representative of the party, would be present in court and he has no objection to taking evidence in his absence.

Approaches to exemption under Section 205 CrPC

The court adopts a liberal approach in most cases and a strict approach in some rare cases, while granting exemption from the personal appearance of the accused. While excusing the accused from attending the proceedings, he can put forth any number of conditions that seem reasonable.

Liberal or generous approach to exemption

Courts usually follow a liberal or general approach to exempting an accused from personal appearance. The reason behind exempting an accused from personal appearance is to dispose of the case smoothly and expeditiously. The hearing should not be adjourned only because of the absence of the accused.

The accused are asked to be summoned by the court only when it is necessary for them to be present in the interest of the case from time to time. The presence of the accused might be required for some kind of evidence or for identifying the witnesses. The accused are also exempted from the personal appearance when they reside or work in a different district or state. In cases where the accused are old and sick people, daily wage earners, industrialists, factory workers, and so on, the court should use discretion generously in all trivial and technical cases.

Strict approach

The court also follows a strict approach in certain cases where the crime committed by the accused is very severe. The courts, while considering an application for grant of exemptions from personal appearance, in cases where the allegations are serious, exercise their discretion very cautiously. The courts have also disagreed to grant exemptions where they would delay the proceedings or hinder the cause of identification. Therefore, it can be concluded that the assessment differs from case to case.

Judicial pronouncements of Section 205 CrPC

In the case of Cardinal Mar George Alencherry v. Joshi Varghese & Ors., (2022), the Kerala High Court, while observing the case for exemption from personal appearance, stated that when an exemption is appealed for the first appearance, the requirements should be more stringent.
In the case of Sanjay Jain v. Unknown, (2021), the Calcutta High Court stated that a magistrate cannot mechanically impose conditions on an order dispensing the personal appearance of an accused under Section 205 CrPC.
In the case of Anita Rai v. The State of Madhya Pradesh, (2022), the Supreme Court quashed a magistrate’s order refusing to dispense with the personal appearance of the accused, who lives thousands of miles away from the court of trial where the case was filed under Section 498A.

Conclusion

The Indian legal system is liberal in most cases while granting accused persons exemption from personal appearance. It is at the judicial discretion of the magistrate to dispense with the personal appearance of an accused depending upon the circumstances of the case. In exceptional cases where the magistrate finds it reasonable to do so, the court must grant the accused’s exemption from personal appearance.

Under Section 205, the power given to the magistrate is very wide but cannot be used arbitrarily. The magistrate, at any stage, can use his discretionary power in such cases where it is absolutely necessary or reasonable to do so. Therefore, it can be concluded that in cases where the personal presence of the accused imposes immense suffering on him, the court must grant exemption. The exemption is granted after going through the facts of the cases in detail where the attendance of the accused is not compulsory.

FAQs on Section 205, CrPC

Can exemption from personal appearance under Section 205 be termed as ‘total exemption’ from the whole trial?

The Court, in various judgments, stated that the exemption from personal appearance by a magistrate can last until the conclusion of trial unless the magistrate thinks it necessary to call him at any stage in the interest of justice.

What happens if the accused fails to appear during the trial in person if needed?

If the accused fails to appear in person at any stage of the trial when called upon, the bond shall be declared forfeited, and the bondsmen are given a time period of thirty days to produce the accused and show cause why a decree should not be rendered against them for the amount of their bond.

References

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National Food Security Act, 2013

By

Sneha Mahawar

-

November 21, 2022

0

security-exchange-board-of-india — Image source - https://bit.ly/3ca5YJC

This article has been written by Naveen Talawar, a law student at Karnataka State Law University’s law school. The article goes into detail about the National Food Security Act and major issues with its implementation, as well as the concept and evolution of food security, the international recognition of the right to food, and the right to food in India, along with certain judicial decisions.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Hunger and malnutrition are not new problems; they have been present throughout human history. Deprivation of food and other necessities of life has consistently been among the causal antecedents of the brutishness and brevity of human life, making life in many parts of the world short and difficult most of the time. Chronic hunger among a large number of people living without adequate food differs from violent outbreaks of famine that cause widespread deaths.

Food is necessary for human survival, and having access to food is a basic human right. However, the widespread hunger in the world serves as an illustration of the ongoing denial of the right to food. Despite unprecedented increases in the amount of food produced per person worldwide, hunger still affects a large portion of the world today.

According to a report from 2012, 868 million of the world’s more than 7 billion people are severely and permanently undernourished, and a child dies of hunger or its complications every five seconds. There are 868 million people in the world, with 852 million in developing countries and 16 million in developed countries. The majority of them, 563 million, live in Asia, while 239 million live in Africa.

In addition, of the total number of undernourished people, 50% are small farmers, 20% are rural landless inhabitants, 10% are nomadic herders, and 10% reside in urban poverty. Only 5% of people are affected by food emergencies brought on by armed conflict, severe weather (drought or floods), or abrupt economic change. The causes of undernourishment and death from hunger and malnutrition are enormously complex and cannot be simply attributed to war or natural disasters. They are primarily the result of social injustice, economic and political exclusion, and discrimination.

The National Food Security Act, 2013 (NFSA), also known as the “Right to Food Act,” was enacted by the Indian government on September 12, 2013, in response to the pressing need to address the problems of hunger, undernourishment, and poverty. Its primary objective is to provide subsidised food grains to approximately 67% (75% in rural areas and 50% in urban areas) of the 1.2 billion citizens of the nation through the public distribution system. Before proceeding with the National Food Security Act, it is important to understand the concepts of food security and the right to food, which are covered in the following section of this article.

Concept and evolution of food security

The concept of food security has changed over the last few decades to reflect shifts in official policy thinking. However, it wasn’t until the Rome World Food Conference in 1974 that this issue was first explicitly acknowledged as affecting all of humanity. It stated, “In order to maintain and fully develop their physical and mental faculties, everyone has the inalienable right to be free from hunger and malnutrition.” Therefore, the abolition of hunger is a common vision of all countries in the international community, especially developed countries and other countries in a position of assistance.

In 1983, Food and Agriculture Organisation (FAO) research focused on food accessibility, primarily on a definition based on the demand and supply sides of food security. The highly influential World Bank report on poverty and hunger in 1986 focused on the temporal dynamics of food insecurity. Sen’s theory of famine supplemented this by highlighting the impact of personal rights on food access, i.e., production, labour, trade, and transfer-based resources. The widely accepted definition of food security from the World Food Summit (1996) reinforces the idea of its multidimensional nature by including food access, availability, use, and stability.

Dimensions of food security

The following are the main prerequisites or dimensions of food security:

Food availability: The term ‘availability of food’ refers to the availability of sufficient quantities of food from either domestic production or imports. It speaks of the supply side of food security.
Food Accessibility: It refers to an individual’s ability to obtain adequate resources (entitlements) for obtaining appropriate food for a nutritious and balanced diet.
Food Utilisation/use: Usage is generally understood to refer to the process by which the body utilises different nutrients from the food by maintaining a healthy diet, access to clean water, good hygiene, and sanitation.
Stability: An individual, household, or population must always have access to enough food to be food secure.

Food security in India

Over the last few decades, India’s total food production has increased much faster than the population. The green revolution, which was launched in late 1967-68, was a significant watershed event that resulted in a phenomenal increase in crop production, particularly of food grains, which changed India’s food security situation.

The green revolution introduced several unique agricultural innovative programmes that transformed India into a surplus producer of wheat, rice, cotton, and milk. The nation succeeded in rising to prominence as one of the largest agricultural producers and exporters in the world. Unfortunately, the green revolution did not last long. There were numerous issues with the Green Revolution. The new technology was primarily adopted by large farm owners. As a result, the green revolution benefited large farmers. Small farmers lagged behind. The Green Revolution accentuated the income disparities between the rich and poor because the rich farmers were already better equipped.

Food security and governance

In response to the severe levels of food insecurity, the Indian government launched three food intervention programmes in the 1970s. The programmes are the Public Distribution System (PDS) for food grains, the Integrated Child Development Services (ICDS), and Food-for-Work (FFW).

Public distribution system

The public distribution system evolved as a system for managing scarcity and distributing food grains at reasonable prices. The government of India distributes food grains through the TPDS (Targeted Public Distribution System) to states and union territories for APL and BPL families, including Antyodaya Anna Yojana recipients. The central government is responsible for procuring, storing, and transporting food grains from one state to another. The fair price shops are responsible for distributing the grains to the underprivileged groups in society. The number of food grains delivered to fair-price shops in various locations must be regulated by state governments. Families that are below the poverty line must be identified by the state government, which also issues ration cards and oversees and keeps an eye on the operations of the fair price shop.

Integrated Child Development Scheme (ICDS)

The largest programme for food supplements in India is the integrated child development scheme. With the help of supplemental food, this program aimed to improve the health and nutritional status of young children aged 0–6 years old. Food is distributed to children through anganwadi centres. The problem was that there weren’t enough anganwadi centres to implement the program. The Supreme Court of India issued a directive to increase the number of anganwadi centres while hearing the public interest litigation brought by the People’s Union for Civil Liberties v. Union of India and others (2007). The court ordered that the amount spent on food for each child be increased. The Court also ordered that children and lactating mothers be fed for 300 days per year, and every primary school must provide a mid-day meal.

Food for work

The right to be free from hunger implies that the government cannot interfere with a person’s capacity for self-sufficiency. India has passed the Mahatma Gandhi National Rural Employment Guarantee Act, 2005, which aims to improve people’s livelihood security in rural areas by guaranteeing a rural household with adult members who volunteer to perform unskilled manual labour for hundred days of wage employment in a fiscal year. This has provided employment for one out of every four rural households.

International recognition of the right to food

The Universal Declaration of Human Rights (UDHR) was the first to recognise the right to a decent standard of living, which includes the rights to food, clothing, and shelter. The International Covenant on Economic, Social, and Cultural Rights (ICESCR) followed, with the goal of binding states to specific commitments and establishing procedures for upholding the rights enshrined in the UDHR. According to Article 11(1) of the ICESCR, everyone has the right to an adequate standard of living for themselves and their families, including adequate food, clothing, and housing, as well as the continuous improvement of living conditions. Article 11(2) states that every individual has a fundamental right to be free from hunger.

A standard of living that is appropriate for a child’s physical, mental, spiritual, moral, and social development is guaranteed by the Convention on the Rights of the Child in Article 27. According to the Convention, States must combat childhood malnutrition and take the necessary steps to help parents fulfil their primary duty of securing their children’s right to an adequate standard of living, particularly in terms of nutrition.

The right to food is also recognised in some regional instruments, such as the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, also known as the Protocol of San Salvador (1988), the African Charter on the Rights and Welfare of the Child (1990), and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2003).

Right to food in India

All citizens of India have been guaranteed economic justice in the preamble of the Indian Constitution. Economic justice cannot be attained if its citizens are not provided with two square meals each day. The Indian Constitution recognises the right to food both explicitly and implicitly, providing strong national protection that is possibly more accessible to Indian citizens than comparable safeguards offered by international bodies.

The right to life is recognised as a fundamental right in Article 21 of the Indian Constitution. According to the judicial interpretation in Kharak Singh v. State of U.P. (1963), “life” in this Article refers to a life with human dignity rather than merely survival or animal existence. A three-judge Supreme Court bench ruled in Chameli Singh v. State of U.P. (1996) that: “In any organised society, the right to live as a human being is not ensured by meeting only the animal needs of man… In any civilised society, the guarantee of the right to life includes the rights to food, water, a decent environment, education, medical care, and shelter. Every civilised society recognises these basic human rights”.

The directive principles of state policy serve to guide the interpretation of fundamental rights, including the right to life guaranteed by Article 21. The right to food is inextricably linked to a dignified life. In order to ensure that its citizens don’t experience hunger, the state must ensure food security. Among other primary duties, the state must strive to raise the level of nutrition and standard of living of its people and improve public health.

Considering the right to food under Article 21 of the Indian Constitution, the Supreme Court of India stated in Kapila Hingorani v. State of Bihar (2003): “The right to food in the context of human rights does not mean that the state is a super-entrepreneur determining and carrying economic activities in its own wisdom. Rather, the right to food in the context of human rights means respecting, protecting, and fulfilling access to food-producing resources and work“.

The Court further noted that the right to food refers to the freedom to meet one’s own needs, which emphasises dignity and independence in contrast to government economic mandates. The right to food may not always be honoured when no one is in need of food. Therefore, in addition to putting an end to current hunger, future hunger and malnutrition can also be prevented by holding the government responsible for upholding the right to food through the appropriate course of action or other comparable means.

The Supreme Court stated in Swaraj Abhiyan v. Union of India (2016) that “There is no question that the right to food is a constitutional right and not just a statutory one. In any case, even if the right to food is protected by law, the state is required to do everything within its power, and to guarantee that enough food grains are accessible to everyone, especially those who live in drought-affected areas.”

The Supreme Court ruled in In re: Problems and Miseries of Migrant Laborers (2020) that “Every person has the right to life as guaranteed by Article 21 of the Constitution, including the right to access at least the most basic necessities of life. All states and governments have a duty to ensure food security to those who are in need “.

The Allahabad High Court observed in Haripal v. State of UP & Ors (2021) that “Let no one die of hunger is a fundamental obligation stated in Article 47 of the Indian Constitution, which must be interpreted with the right to life under Article 21 for it is the right to food”. In other words, the right to food is inherent in Article 21 of the Indian Constitution, obliging the State to ensure that its obligations are carried out in accordance with Article 47 read with Article 39(a) of the Indian Constitution.

The National Food Security Act, 2013 : an overview

The National Food Security Act (NFSA), came into effect on July 5, 2013. It is clearly stated in the preamble of the Act that its purpose is to ensure access to adequate quantities of high-quality food at reasonable prices for people to live dignified lives, as well as to address issues that are related to or incidental to that goal in order to advance food and nutritional security using the human cycle approach.

The Act provides statutory support for the targeted public distribution system (TPDS). This legislation establishes the right to food as a legal right rather than a general entitlement. It establishes responsibilities for the centre and states, as well as a grievance redressal mechanism to address the non-delivery of entitlements. The following are the important provisions of the Act:

Transformation of welfare benefits into legal entitlements

The most significant provision of the Act is that it establishes a legal right to food. According to Article 42 of the Indian Constitution, it is the responsibility of the state to improve public health as well as the level of nutrition and living conditions. All of these objectives can be achieved with the provision of the right to food.

Right to receive food grains

The provisions for food security are found in Chapter II of the Act. Following the targeted public distribution system, Section 3 grants eligible household members the right to receive food grains at subsidised prices. The constitutional rights of the people to a minimum level of food security are granted by their legal entitlement to receive food grains. The state, on the other hand, has a duty under this landmark legislation to make sure that eligible individuals can access the grains they are entitled to.

According to Section 3(1) of the Act, each member of a priority household is entitled to five kilograms of rice per month from the targeted public distribution system. Before this Act, all BPL households received 35kg of food grain, regardless of the number of members in each household. The Act, on the other hand, accounts for differences in the number of members in each household by granting entitlements per person. However, the NFSA retains the pre-NFSA entitlements for AAY (Antyodaya Anna Yojana) households, who will continue to receive 35 kg of foodgrain per household. Section 3(2) of the NFSA expands TPDS coverage to 75% of the rural population and 50% of the urban population.

Nutritional support for women and children

The Act also includes provisions for pregnant women, lactating mothers, and children who need nutritional support. According to Section 4 of the Act, the Central Government must provide a free meal through local anganwadis and maternity benefits worth at least INR 6,000 to women who are pregnant and lactating (up to six months after childbirth). In order to address malnutrition among children, any child under the age of 14, including those who are not in school, may approach any feeding facility, such as anganwadi centres or school mid-day meal centres, for a midday meal.

The Act also specifies provisions regarding food entitlement for children between the ages of six months and fourteen years. According to Section 5 of the Act, all children between the ages of six months and six years are entitled to a free meal at an anganwadi, and all school-age children up to eighth grade are entitled to a free lunch. In accordance with the Act, these schools and anganwadis will also have kitchens, drinking water, and sanitary facilities.

Food security allowance

Under Section 8 of the Act, if a qualified person does not receive the required amounts of food grains or meals, they are entitled to a food security allowance. Each person shall receive this payment from the state government. In January 2015, the central government notified the Food Security Allowance Rules, 2015, which outlined the procedures for calculating and allocating this allowance. In order to determine the amount, the amount of non-supply is multiplied by 1.25 times the minimum support price (MSP) of the relevant foodgrain for that marketing season and the prices listed in Schedule I of the Act. This amount must be paid by the end of the third week of the month following the month in which the food grain was not supplied.

Identification of eligible households by state governments

In accordance with Sections 10(1a) and (1b) of the Act, state governments must, within a year of the implementation of the Act, identify the households that will be covered by the Antyodaya Anna Yojana and priority categories, and they must make the list of those households publicly available.

Reforms in the targeted public distribution system

The central and state governments are required by Section 12 of the Act to gradually undertake necessary reforms of the TPDS, such as:

Food grains are delivered to a targeted public distribution system at their doorstep.
Implementation of information and communication technologies with the goal of fully computerising TPDS.
Transparency of documents.
Transferring FPS management from private owners to public bodies such as women’s cooperatives.
Diversification of commodity distribution.
Making use of Aadhaar to identify beneficiaries.
Implementing programmes like cash transfers and food coupons.

Monitoring bodies

Grievance redressal mechanisms are provided in Sections 14, 15, and 16. Every state government must establish a system for handling internal complaints, which may include call centres, help lines, and the appointment of nodal officers. Section 14 of the Act provides for such a mechanism.

According to Section 15 of the Constitution, the state government must appoint or designate an officer to act as the district grievance redressal officer in each district, and a state food commission shall be established by the state government in accordance with Section 16.

The Central Government must allocate the necessary amount of food grains from the central pool to the state governments. The central government must pay for food grain transportation, intra-state expenses, state government assistance, and the construction of modern storage facilities. The central government must make funds available, while state governments must provide food grains in times of scarcity or provide food allowances to the people. The central government must assist states with the cost of intra-state transportation, food grain handling, and fair price deals.

Penalties

Any public employee or authority found guilty of failing to provide the relief recommended by the District Grievance Redress Officer may be fined up to Rs 5,000 by the State Commission under Section 33.

Major issues in implementation

Problems in targeting

Under the targeted public distribution system, BPL and APL households were distinguished. BPL households were identified based on household income, whereas households with any assets (such as televisions, fans, two or four-wheeled vehicles, or land) were classified as APL. Despite owning assets, these APL households were food insecure, and the removal of rations exacerbated their situation. The problem of targeting is aggravated by a lack of reliable data. There are no official estimates of household income, and many BPL households are denied BPL cards. Targeting has also exacerbated the availability of fake ration cards.

In 2015, the CAG found that many states had not completed the process of identifying beneficiaries, with 49% of the beneficiaries still unidentified. The use of Aadhaar as proof of identification became mandatory under the NFSA in February 2017. The goal was to eliminate bogus ration cards, detect leaks, and improve food grain delivery. As of January 2017, 73% of ration cards had been seeded with Aadhaar, and 100% of ration cards were digital.

Inadequate storage capacity

The total storage capacity of India in 2017 was 788 lakh tonnes. The capacity of the Food Corporation of India was 354 lakh tonnes, while state agencies had a capacity of 424 lakh tonnes. According to the CAG report from 2015, the state’s storage capacity was insufficient for the number of food grains allotted. The report also observed that the Centre’s stock of food grains was higher than the Food Corporation of India’s storage capacity for four years between 2010-2015.

Poor infrastructure of Anganwadi centers

The infrastructure of Integrated Child Development Scheme centres is very poor, making it impossible for them to provide essential services. A 2016 study of 36 AWCs in the state of Odisha found that more than 85% lacked a designated building for daily operations. There was also a severe lack of water, toilet, and electricity facilities, as well as a scarcity of play materials in the centres. As a result, there was scepticism about its benefits in the rural community.

Corruption

According to the 2015 CAG report, states diverted funds worth Rs. 123.29 crores intended for the mid-day meal scheme. According to the report, under this scheme, food supplies are being diverted, supplies are being cut in half, and there is a lot of waste. In the last three years, the government has received 52 complaints about corruption in the mid-day meal scheme, according to a 2019 MHRD report. Among the states, UP has received the most complaints, with 14, followed by Bihar, which has received seven.

Conclusion

In any organised society, the right to live as a human being is not guaranteed by meeting only his animal needs. It is only secured when he is assured of all opportunities to develop himself and is free of impediments to his growth. Any guarantee of the right to life in any civilised society entails the realisation of an essential right to food. The right to food is primarily the right to feed oneself with dignity, not the right to be fed. As a fundamental human right, the right to food guarantees everyone access to sufficient nutrition as well as the means to enjoy food security over the long term. The right to food imposes legal obligations on states to combat hunger and malnutrition and achieve universal food security.

The National Food Security Act of 2013 is an important step toward establishing a legally enforceable right to food in India. The Act contains several well-intended provisions that have enormous potential for achieving food security for all. The importance of rights-based legislation, such as the National Food Security Act, is that it confers rights and also imposes duties on the state. If well implemented, the NFSA, 2013, will have a significant and demonstrable impact on addressing the problems of hunger, malnutrition, and poverty.

FAQs

What are the NFSA’s entitlements for food grains?

Under the targeted public distribution system, every member of identified eligible households is entitled to receive 5 kg of foodgrains at subsidised prices each month. Households currently receiving aid through the Antyodaya Anna Yojana (AAY) will continue to receive 35 kg of food each month.

What are the prices for the food grains that will be provided to the eligible beneficiaries?

For a subsidised price of Rs. 3 and Rs. 2 per kg, respectively, rice and wheat will be made available in the priority category as part of the targeted public distribution system established by the Act.

How does the National Food Security Act empower women?

For the purposes of issuing ration cards, the Act specifies that the oldest woman in each eligible household who is at least 18 years old shall be deemed to be the head of the household.

References

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

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Place of Worship Act, 1991

By

Sneha Mahawar

-

November 20, 2022

0

This article is written by Sanjana Santhosh, a law student at Christ (Deemed to be University), Bengaluru. The article analyses the scope and objectives of the Place of Worship Act, 1991, along with the landmark case laws that mark its inception.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Do you know that the Place of Worship Act is not applicable to Babri-Masjid as per Section 5 of the Place of Worship Act, 1991? Do you know there cannot be any conversion of an already established religious place? Do you know what is the punishment for any such conversion? This article has it all covered! Let’s begin!

The Government of India adopted the Places of Worship (Special Provisions) Act in 1991. The legislation’s stated goal was to protect the religious character of all houses of worship as it stood on August 15, 1947 and forbid any changes that would compromise that character. Dr. Malini Bhattacharya, a member of Parliament, said that this date is the day India became a free, democratic, and sovereign state in which there is no state religion and all religions are treated the same.

History of the Place of Worship Act

On July 12, 1991, Zainal Abedin, a member of Parliament for the city of Jangipur in the State of West Bengal, introduced a resolution to the Lok Sabha titled “Steps for Maintaining Status Quo of Religious Shrines and Places of Worship” as they stood on August 15, 1947, before the Places of Worship Act was tabled in the Indian Parliament by the Union Government. The purpose of the resolution was to encourage the government to find a peaceful solution to the Ayodhya conflict and to pass legislation to protect all religious places of worship. On the same day that S.B. Chavan, the then-Union Minister of home affairs, brought a government bill along identical lines before the Lok Sabha and gained the assent of the majority on September 10, 1991, Abedin withdrew his resolution. On September 12, 1991, it was approved by the Rajya Sabha, and on September 18, 1991, it was signed into law by India’s President R. Venkataraman.

In 1991, at the height of the Ram Janmabhoomi movement, the Parliament passed and the President signed into law the Places of Worship (Special Provisions) Act. Congress Prime Minister P V Narasimha Rao signed the Act into law while the Babri Masjid stood.

“It is believed that the implementation of these protections is required in light of the discussions that surface from time to time over the conversion of religious institutions, which tend to corrupt the environment of the community“, the then-Home Minister S B Chavan said while introducing the Bill in Parliament. The passing of this Act effectively prevents any new concerns involving the alteration of any place of worship from arising. This article analyses the application of the 1991 Act, along with the history of the inception of the Act through landmark case laws.

Features of the Place of Worship Act

To ensure that religious buildings retain their “religious character as it existed on the 15th day of August, 1947, and for matters connected therewith or ancillary thereto,” the Places of Worship Act of 1991 makes it illegal to “convert any place of worship.”

Restricts conversion of place of worship

Converting a house of worship of one religious group into a house of worship of another religious group, or even a different sect within the same religious group, is limited under Section 3 of the Act.

Establishes religious character on places of worship

The religious nature of a house of worship “must continue to be the same as it existed on August 15, 1947,” as stated in Section 4(1).

Bar on jurisdiction of courts

Section 4(2) it is stated that no new suit or legal process shall be instituted if there is already a suit or legal proceeding currently before any court regarding the conversion of the religious character of any place of worship existing on August 15, 1947.

If a lawsuit, appeal, or other legal action concerning the alteration of a place of worship’s religious character is pending on the day the Act goes into effect, it will be preserved in accordance with this paragraph until the conclusion of that case or appeal.

Exemption

In accordance with Section 5 of the Act, the Ram Janmabhoomi-Babri Masjid case and any appeal or procedure arising out of it are exempt from its coverage.
The Ancient Monuments and Archaeological Sites and Remains Act of 1958 protects any religious building that is also a historical or archaeological site which is also exempted.
A case that has been resolved by a final settlement or dismissal.
Before the Act’s implementation, any dispute settled or acceded by the parties to the conversion of any area.

Penalty

If one violates the terms of the Act, such a person could face up to three years in prison and a hefty fine according to Section 6 of the Act, which outlines the punishments for such a violation.

Provisions of the Act

Section 1- Extent and commencement of the Act

The Place of Worship Act, 1991, is applicable throughout India except for Jammu and Kashmir. The Act came into force on July 11, 1991.

Section 2- Definitions

The Section defines terms such as ‘place of worship’, ‘conversion’, and ‘commencement of this Act’. “Place of Worship” is defined as any structure used for public religious worship, such as a temple, mosque, gurudwara, church, monastery, or congregation.

Section 3- Bar of conversion of places of worship

Section 3 of the Place of Worship Act prohibits individuals from modifying a religious building for use by another religious group or sect, or by members of one religious group to worship the followers of another religious group or sect.

Section 4- Religious character and restriction on jurisdiction of courts

According to Section 4 of the Act, the religious nature of any worship facility in existence on August 15, 1947, is officially determined to remain unchanged from that day forward.

No suit, appeal, or other proceedings shall lie on or after the effective date of this Act in any court, tribunal, or other authority regarding the conversion of the religious identity of any site of worship, regardless of whether or not such a suit, appeal, or other proceeding was pending on the effective date of this Act.

Exceptions to this provision:

Any religious structure protected as an ancient and historical monument or archaeological site or remains under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or any other law;
Any action, appeal, or procedure that was determined, settled, or disposed of by a court, tribunal, or other body prior to the effective date of this Act;
Any disagreement over related aspects that has been resolved amicably between the parties before the start of the proceeding;
Any prior conversion to religious or secular use of such a location that was allowed to take place with the owner’s approval;
Any alteration or improvement made to a place of worship prior to the effective date of such commencement that is not subject to challenge under any statute of limitations then in existence.

Section 5- Application to Ram Janma Bhumi-Babri Masjid case

The Place of Worship Act does not apply to any litigation, appeal, or other proceeding involving the site widely known as Ram Janma Bhumi-Babri Masjid in Ayodhya in the State of Uttar Pradesh.

Section 6- Punishment

The punishment prescribed for the contravention of provisions under the Act is imprisonment up to the extent of 3 years and shall also be liable to fine. Notwithstanding anything in Section 116 of the Indian Penal Code, anybody who aids and abets the commission of, or is a party to a criminal conspiracy to commit an offence shall be punished.

Section 7- Act to override other laws

In the event of any inconsistency between the provisions of the Place of Worship Act and any other legislation currently in effect, the provisions of the Place of Worship Act shall govern and prevail.

Section 8- Amendment of Representation of People Act, 1951

As per Section 8(1)(j) of the Representation of People Act, 1951, a person convicted of an offence punishable under Section 6 of the Places of Worship (Special Provisions) Act, 1991, shall be disqualified.

Landmark judgments

Gyanvapi Mosque case

The debate surrounding the Places of Worship (Special Provisions) Act, 1991, came to a head with the dispute involving the Gyanvapi mosque near the Kashi Vishwanath temple complex in Varanasi. Five Hindu women started the uproar when they petitioned to be let to worship idols on the Gyanvapi Mosque ground. The petition stated that the temple was destroyed in the 17th century to make way for the mosque’s construction. In a case, a Court in Varanasi issued a ruling mandating a video assessment of the Gyanvapi Masjid complex to determine the validity of the claim. Both the mosque board and the Uttar Pradesh Sunni Central Waqf Board fought the Order. However, in a ruling dated April 21, the Allahabad High Court declined to interfere in the survey, clearing the path for the petitioners to go to the Supreme Court. The Muslim side has been using the Places of Worship (Special Provisions) Act, 1991, specifically Section 4, which prohibits the filing of any action or initiation of any other legal proceeding for a conversion of the religious character of any place of worship, as in effect on August 15, 1947.

There are now two petitions before the Supreme Court that challenge the constitutionality of the Act. A petition was submitted by the Vishwa Bhadra Pujari Purohit Mahasangh trust in Lucknow on behalf of Sanatan Vedic practitioners, while another was submitted by advocate Ashwini Upadhyay.

Critics of this Act state that it:

Prevents the fundamental judicial review enshrined under the Constitution of India;
Inflicts an “arbitrary unreasonable retrospective cut-off date,” and
It limits the religious freedom of Hindus, Jains, Buddhists, and Sikhs.

Upadhyay stated, within his petition, that the government lacked the right to establish a statute that restricted the capacity to go to court in order to restore the holy site. He claimed that this authority was lacking. According to the statement, the Act “has narrowed the remedies against illegal encroachment on the places of worship and pilgrimages,” and as a result, “now Hindus, Jains, Buddhists, and Sikhs can file action or approach the High Court under Article 226.”

On the other hand, Section 4 of the Places of Worship (Special Provisions) Act, 1991 was challenged in a petition filed by the Vishwa Bhadra Pujari Purohit Mahasangh. It stated, “The assailed Act has restricted the right and remedy against intrusion made on sacred property of Hindus wielding might of power by followers of another faith.” It said, “The law addresses itself to the State as much as it addresses every citizen of the nation. Those in charge of the country at any level are bound by its standards. The Fundamental Duties outlined in Article 51A are implemented by these norms, making them binding on all citizens. By passing this legislation, the state is putting into effect its constitutional mandate to protect the separation of church and state and the secular nature of the state, which is fundamental to the Constitution’s design.

Ayodhya Case

The decision in the Ram Janmabhoomi temple case, M. Siddiq v. Mahant Suresh Das, was issued by the Constitution Bench of the Supreme Court on November 9, 2019. This ruling gives the Places of Worship (Special Provisions) Act, 1991, unqualified support. A law that “prohibits conversion of any place of worship and provides for the maintenance of the religious character of any place of worship as it existed on the fifteenth day of August, 1947, and for matters connected therewith or incidental thereto” is described in the Act’s Preamble. Ram Janmabhumi-Babri Masjid in Ayodhya is specifically exempted from the Act under Section 5.

The Supreme Court, after examining the Act, stated, “The statute establishes two steadfast and mandatory norms:

Section 3 prohibits the conversion of a house of worship belonging to one religious group into a house of worship belonging to another religious group, whether that group is a branch of the original group or completely other faith. The word “place of worship” is intended to be as inclusive as possible, including synagogues, mosques, churches, and temples of all faiths and denominations;
The legal status of every religious establishment as of 15 August 1947 is protected under the law. The Places of Worship Act “protects and secures the essential values of the Constitution,” the Court said.

Those responsible for running the country at any level must adhere to its standards.

There are positive mandates to every citizen since they are the rules that put into practise the Fundamental Duties outlined in Article 51A.

The Court put it more succinctly and asserted that “Historical wrongs cannot be repaired by the people taking the law into their own hands”. Parliament has ordered that “the wrongs of the past shall not be utilised as instruments to oppress the present and the future” with regards to protecting the integrity of public houses of worship.

Neither the validity of the 1991 Act nor a review of it came up during the Supreme Court bench’s hearing of the Ram Janmabhoomi-Babri Masjid title suit. While disagreeing with a portion of the Allahabad High Court’s judgements, the Court nonetheless made clear comments in favour of the Act. The Constitution Bench cited this law in its 2019 Ayodhya ruling, saying that it embraces the secular values of the Constitution and prohibits retrogression. As such, the law is a piece of legislation enacted to protect a crucial tenet of India’s Constitution—its secular character in politics.

Criticism of the Act

It has been asserted that the statute violates the Constitution by prohibiting judicial review, a characteristic widely recognised as essential for upholding the supremacy of the Constitution. It has been argued that this violates the religious freedom of people of faiths other than Christianity. It goes beyond Parliament’s authority to legislate since it limits a fundamental constitutional right to seek judicial review.

This Act is being interpreted as a violation of the principle of secularism enshrined in the Preamble and the Constitution. It is also argued that the Center lacked authority to impose laws in this area because “pilgrimage locations” or “burial grounds” are included in the State List. Centre officials, however, insisted that they could do so because of the residual authority granted to them by Entry 97 of the Union List.

The most pressing concerns raised about the 1991 Places of Worship Act are:

Does the Places of Worship Act 1991, specifically Sections 2, 3, and 4, infringe Articles 14 and 15 and the right to equality guaranteed by the Constitution?
How can Articles 25, 26, and 29 and the Constitution’s core feature of secularism square with Sections 2, 3, and 4 of the Place of Worship Act, 1991?
In Hindu and Islamic personal law, do temples that have been “destroyed by invaders” cease to be temples?

Since it preserves non-regression as a central component of our secular values, the Act is vital in its being, and the legislative and judicial branches should resolve the ambiguities and questions surrounding it.

Way Forward

Before August 15, 1947, India was not a constitutional democracy. In the middle ages, when a temple was supposedly demolished, there was no rule of law. At one point in time, the rule of law did not exist, and the polity had an expansionist mindset.

There were significant differences between the medieval polity and the contemporary Indian state. But now, in our modern democracy, we have constitutional ideals and the rule of law. Recent events appear to be part of a larger plan to rip the country’s social and political fabric to shreds by sowing discord among its various communities.

The destruction of the Babri Masjid was deemed illegal by the Supreme Court in the related case. The Court ruled that “the State has a constitutional commitment and constitutional duty to uphold the equality of all religions and secularism,” which are fundamental principles of the document.

Based on its interpretation of the Indian Constitution, the Court has ruled that the Places of Worship Act of 1991 is essential to maintaining India’s secular character. Decisions made by the government, the administration, and the courts must be based on law and constitutional ideals, not on emotions or political pressure from a majority.

Conclusion

The idea of religious equality underlying the Place of Worship Act protects the rights of people of all faiths. It is important to remember that Article 25 of the Constitution protects everyone’s right to freely practice their religion. When it comes to matters of faith, one person’s freedom must yield to the rights of all others. Thus, the Act implements a constitutional obligation and can in no way be considered unconstitutional.

The Places of Worship Act was enacted for a specific cause. The law is a window into our past and our country’s potential future. Since we are aware of our past and the need for our country to face it, we can now see that independence was a turning point in the process of mending the nation’s wounds. Taking the law into one’s own hands is not a viable option for righting past wrongs. Parliament has issued a clear directive that the wrongs of the past cannot be exploited to oppress the present and future in its efforts to preserve the nature of public places of worship.

Frequently Asked Questions (FAQs)

What are the underlying goals of the law being proposed?

An Act to prevent the alteration of the religious character of any place of worship and to make provisions for the protection of its religious integrity.

Why did the Supreme Court refer to the Act during the Ayodhya Judgement?

It’s unclear why the Supreme Court brought up the Act when deciding the Ayodhya case.

The Constitution Bench cited this statute in its 2019 Ayodhya ruling, noting that the “secular ideals of the Constitution and prohibition of retrogression” were manifested there. One of the fundamental elements of the Indian Constitution is a secular polity, and the law is a legislative vehicle designed to maintain this feature.

References

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Mediation Bill, 2021

By

Rachit Garg

-

November 19, 2022

0

This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. The article explains the need and objective of the Mediation Bill, 2021. It further gives an overview of the Bill and lists out recommendations made by standing committees to eliminate the loopholes in the Bill.

it has been published by Rachit Garg.

Table of Contents

Introduction

What do you do if there is any dispute or if any of your rights have been infringed by someone?

The first thought that would strike your mind is to sue the person who is infringing your rights and move to court. There might be some people who would ignore the matter and avoid approaching the court out of fear that the procedure would be costly, hectic, and time-consuming. But how would you react if I say there are other means to resolve your disputes apart from courts?

Don’t be shocked. Such methods exist, and the parties try to resolve their disputes outside the courts. These are called Alternate Dispute Resolutions (ADR). These methods are usually cost-effective, easy, and less time-consuming. This is the reason most people nowadays prefer ADR. These methods consist of different ways to resolve a dispute, and unlike traditional courts, there is no judge involved; a third party is usually involved to help the two parties reach a mutual agreement or settlement. These are:

Arbitration
Mediation
Conciliation
Negotiation
Lok Adalats

The field of ADR has not yet fully developed in the country and is still growing with time and technology. As and when people are informed about such methods and ways, they prefer above -mentioned methods in order to avoid the traditional court system with its long, hectic procedures and high costs. India has already taken a step towards the development and effectiveness of ADR by enacting the Arbitration and Conciliation Act, 1996. But there is a lot more work to be done in this regard. To strengthen the foundation and procedure of ADRs, the parliament introduced another Bill with respect to mediation, which is again a form of ADR, in the parliament in December, 2021. The Bill is named the Mediation Bill, 2021. The article gives an overview of this Bill and also mentions the issues highlighted by standing committees of the parliament along with their recommendations.

Meaning of mediation

Mediation is one of the forms of alternative dispute resolution wherein the two parties in a dispute are directed and assisted by a neutral third party who assists them to reach upon a mutual agreement or settlement. This neutral and impartial third party, who helps the two parties reach a settlement, is known as a mediator.

The two parties together consent to go for mediation and then seek the assistance of a mediator, who tries to settle the dispute by satisfying both parties with a settlement that is accepted and agreed upon by both parties. This is a non-binding procedure and is initiated only if both parties consent to it voluntarily. The procedure is cost-effective as the cost of the mediation process and the fee of the mediator are borne equally by both parties, and no party is overburdened. It is also less time-consuming and an easy process. Usually, high-tech businesses and companies adopt this method to resolve their disputes.

Principles of mediation

In the current scenario, mediation is usually adopted by big companies and upper-class people to settle their disputes. This is because they consider the traditional court system to be time-consuming. On the other hand, mediation does not involve intricacies like those present in the procedure followed by the courts. Unlike every other type of ADR, mediation has its own principles and rules according to which parties are bound to act and follow the proper procedure. The various principles upon which the method of mediation works are as follows:

Voluntary participation of parties

It is a kind of pre-condition for mediation. No proceeding for mediation can be initiated if the parties have not mutually consented to it, nor can it be done if one party forces the other party. There must be free consent from both parties, and it must not be obtained by fraud, force, coercion, or threat.

Mediation as a process to settle disputes involves the active participation of both parties. The parties to any dispute have to present their case and arguments in front of a mediator to seek a settlement that satisfies both of them. This can be achieved only if both parties consent voluntarily and participate actively in the mediation proceedings.

Confidential proceedings

Confidentiality is the most important principle of mediation. All the proceedings are kept secret and confidential, and no party along with the mediator is allowed to reveal them to any third person. A mediator has to ensure this confidentiality and is under a duty not to reveal the facts and information shared with him by the parties during the court proceedings or to anyone else.

Impartial mediators

A mediator in such proceedings is a third party who is not connected to either of the parties to the dispute. Such mediators must be impartial to ensure the ends of justice and that the principles of natural justice are complied with. If a mediator is impartial, then only it can ensure that there is no bias towards anyone, and as a result, there will be no unfair advantage to either of the parties in the settlement. Only an impartial mediator can ensure impartial proceedings and settlements.

Satisfaction of the parties

The ulterior objective of mediation is to settle a dispute between two parties by satisfying both of them. This can be done through an agreement of settlement that satisfies both parties and is not inclined towards either of them. Apart from this, it is the duty of the mediator to explain the importance and advantages of mediation to the parties so that such methods could be used frequently and help reduce the burden of the courts.

He can suggest a settlement and agreement to the parties and give them the best option to resolve their dispute, but he must not forget that parties are free to approach the courts if they are not satisfied or in case mediation fails to resolve their dispute.

Need for a Mediation Bill

Alternate dispute resolution in India consists of arbitration, mediation, conciliation, negotiation, and Lok Adalats. All these provide a mechanism where disputes are settled outside the conventional courts. In mediation, a mediator does not impose any agreement or settlement upon the parties but rather creates an environment where both of them can resolve their disputes and mutually reach a settlement. Currently, there is no uniform legal procedure for mediation, nor is there any such authority that controls the entire process. This work is done by private ADR centres.

In the absence of any legislation governing the procedure of mediation and any central authority, it can be presently initiated in two ways:

If the court itself refers the parties to mediation according to the Code of Civil Procedure, 1908 under its Section 89 or,
With the help of any contract between the parties that contains a clause for mediation or if it is mentioned in any specific statute.

Due to the lack of uniformity in the procedure and the absence of formal authority, ambiguities prevail and cannot be overcome. In such a situation, there is a need to enact proper legislation for mediation so that such ambiguities can be reduced. This will also relieve the courts of the burden of pending cases. The need and such suggestions have also been made by the Supreme Court in the case of M.R. Krishna Murthi v. New India Assurance Co. Ltd. (2019).

With this aim, a Bill on mediation was introduced in the parliament in 2020 and has now been referred to various standing committees for recommendations and suggestions.

Mediation Bill, 2021 : an overview

The Bill provides a detailed description of all the requirements of the proceedings of mediation and also explains mediated agreement settlements. It also gives the definition of terms like mediation. Mediator, institutional mediation, etc. This article further unfurls the objective and scheme of the Bill and gives its overview.

Objectives of the Bill

The following are various objectives of the Bill:

It provides a uniform procedure to be followed for mediation in the country and also explains the meaning of specific legal terms.
The ultimate objective of the Bill is to educate people about mediation, which is a less time-consuming and more cost-effective method to resolve disputes, in order to reduce the number of pending cases in court.
The Bill also deals with pre-litigation mediation, which clarifies the position of such mediation.
It further gives the power and functions of courts and tribunals in the mediation process.
Mediation involves a neutral third party acting as a mediator. Currently, there is no authority to ensure that the principles of confidentiality, neutrality, impartiality, and participation of parties are achieved. But the Bill, if passed and enacted, will deal with such situations and clarify the position of mediation proceedings and their relevance.

Scheme of the Bill

The Bill is divided into 11 chapters, which consist of various sections and clauses, and 10 schedules. The different chapters under the Bill are:

Chapter 1 deals with the title, extent, and commencement of the Bill as an Act if enacted by the government.
Chapter 2 explains the application of the Bill.
Chapter 3 explains the concept of mediation, pre-litigation mediation, mediation agreements, and the power of courts and tribunals to refer parties to mediation.
Chapter 4 further talks about mediators, their appointment, termination, salaries, allowances, and replacement.
Chapter 5 describes mediation proceedings and other intricacies involved therein.
Chapter 6 further deals with the enforcement of mediated settlement agreements.
Chapter 7 explains the concept of online mediation.
Chapter 8 prescribes the establishment of the Mediation Council of India and its other necessities.
Chapter 9 provides for mediation service providers and institutes.
Chapter 10 explains community mediation.
Chapter 11 is a miscellaneous chapter dealing with mediation funds, accounts, and audits.

Features of the Bill

The features of the Bill are:

It gives the uniform definition and meaning of mediation, mediators, and other legal terms and explains the concept of pre-litigation mediation.
It also promotes institutional mediation as a mechanism to resolve disputes.
It further enlists the disputes that are not fit for mediation and are excluded under the Bill from such proceedings.
It defines the role and functions of mediators and provides provisions for their appointment, termination, and replacement.
It provides that all the agreements or settlements of mediation will be binding on the parties and have the same effect as if passed by the courts.
It also gives the power to the courts and tribunals the power to refer a case to mediation and outlines the steps to be followed in such a process.
The parties have been given a right under the Bill to withdraw from the mediation proceedings or request to change the mediator.
It envisages the enforcement of mediated settlement agreements and their challenges.
To fulfil the objective of digital India, it also provides provisions for online mediation.
One of the most important features of the Bill is the establishment of the Mediation Council of India, which is a formal legal authority to deal with mediation and issues arising from its mechanisms.
It prescribes the composition of the council, the incorporation of members, their retirement, and their termination, along with its powers and functions.
It further explains the concept of community mediation and its procedures.
It also deals with mediation funds, accounts, and necessary audits and provides provisions for mediation service providers.

Applicability of the Bill

Section 2 of the Bill explains the applicability of the Bill. It provides that the Bill will be applicable to all mediations in the country where:

All the parties to a dispute are either residing in India, or incorporated here, or carry on business in India or
Where the mediation agreement provides any such dispute will be resolved by mediation according to the provisions of the Bill or
Where there is international mediation.

It further provides that it will not be applicable if one of the parties or both parties are central or state government, public bodies, corporations, or local bodies, entities owned and controlled by such government except in cases where the matter involves a commercial dispute between the parties.

Meaning of mediation under the Bill

Section 4 gives the meaning and definition of mediation. According to this Section, mediation is a process wherein the parties to a dispute request a third party called a mediator to help them and assist them in reaching a settlement mutually. It also includes online mediation, pre-litigated mediation, and community mediation.

Mediation agreement and pre-litigation agreement

According to Section 5 of the Bill, the following are considered mediation agreements:

Agreement that is in writing and is given by the parties or by any of them that claims on behalf of both of them and further submits a dispute to mediation.
Any mediation clause in a contract of a specific agreement will also be treated as a mediation agreement in case of a dispute.
Agreement in writing if it is recorded as:
- Documents signed by the parties,
- A letter or communication between the parties in any electronic form,
- Pleadings in a suit.
In the case of international mediation, any such agreement according to Section 3 clause (a) will be treated as a mediation agreement.

According to Section 6 of the Bill, pre-litigation mediation means that it is necessary for the parties to try to settle their disputes through mediation even if there is no mediation agreement before referring the matter to any civil or commercial court. For example: under clause 6 of Section 6, a dispute over the compensation in a case of an accident under the Motor Vehicles Act, 1988, can be referred to mediation before it is claimed in a tribunal, and if a settlement is reached, it is placed before the tribunal for consideration.

Mediators

Section 3(h) of the Bill defines the word ‘mediator’ as a person appointed to undertake mediation proceedings under the Bill and who is also registered as one with the council. Further, chapter IV deals with mediators, their appointments, terminations, and the preferences of the parties.

Appointment termination and replacement of mediators

Section 10 of the Bill gives the parties the power to decide on a mediator for their disputes and the process for its appointment. Such a person must be qualified to act as a mediator, as specified in the Bill. If the parties are not able to decide on a mediator or if the mediator decides, or refuses to act as a mediator in their case, they can apply to the mediation service provider, and then it will appoint a mediator from the panel for their dispute within 7 days. While doing so, the service providers are under an obligation to consider the preferences of the parties.

Section 13 further allows the termination of the mediator on the grounds of:

Application of the parties,
Conflict of interest or
If he himself withdraws to be a mediator.

In such a situation, the service provider will again appoint a mediator from the panel within 7 days of such termination. (Section 14).

Role of mediator

The mediator has to perform the following functions:

According to Section 12, a mediator has to disclose any circumstances that will affect the confidentiality of the proceedings or his impartiality or that may lead to a conflict of interest. The parties have been given a right to raise objections after such disclosure. It is the duty of the mediator to conduct mediation proceedings.
He will assist them impartially to amicably reach a settlement (Section 17). Further, he will ensure objectivity and fairness in the proceedings and that the principles of voluntariness, confidentiality, and self-determination of the parties are maintained throughout.
Further, he will determine the language to be used in the entire process of mediation and try to clarify all the misunderstandings between the parties and their doubts and issues.
However, according to Section 19 of the Bill, he will not act as an arbitrator or representative counsel for the parties, nor will he act as a witness in any judicial proceedings.

Mediation proceedings

Such proceedings will be initiated from the date when the notice is served on the other party for mediation, in case there is a mediation agreement. If there is no such agreement, then it will be commenced from the date when a mediator is appointed or decided by both parties. Such proceedings involve meetings with the parties jointly or separately during the sessions.

Parties have a choice to withdraw from mediation after the first two sessions, and if a party fails to do so and it results in the failure of mediation, the court can impose costs on both of them. Section 21 gives the time limit within which all the mediation proceedings must be completed, i.e., within 180 days. The proceedings will be terminated in the following manner:

When the mediated agreement settlement is signed and authenticated.
A written declaration is given by the mediator stating that such proceedings are not justified after consulting the parties.
After 7 days after the mediation session where the party failed to attend the first two sessions without informing the mediator.
Both parties communicated in writing to the mediator about their choice to leave mediation.

Mediated settled agreements

According to Section 22 of the Bill, these are agreements that consist of settlements between the parties settling all or any of their disputes. The agreement will be in writing and must be signed by both parties as per the section. In the case of institutional mediation, it will be signed and authenticated by the mediator and submitted to the service provider along with a cover letter, after which a copy will be served to the concerned parties.

If there is no agreement or settlement, a mediator will submit the report of failure, but it will not contain reasons of failure to the mediation service provider in case of institutional mediation while in other cases it will be given to the parties. Such agreements also include agreements from online mediation signed by the parties with the help of an electronic signature and authenticated by the mediator.

Enforcement

Section 28 of the Bill provides that signed and authenticated mediated settled agreements are final and binding on the parties, and these will be enforced in the same manner as a decree passed by a court under the Code of Civil Procedure, 1908.

Challenge

Section 29 provides that such agreements may be challenged, except for those referred to in Lok Adalats by either party, by filing an application within 90 days in a court of competent jurisdiction. Any agreement can be challenged due to various reasons listed below:

Fraud,
Corruption,
Impersonation
Mediation was conducted in matters that were not fit for the process.

Mediation Council of India

The council is a body corporate with perpetual succession and a common seal to exercise powers and functions as specified in the Bill.

Establishment

Section 33 of the Bill provides for the establishment of the council and states that its head office will be in Delhi or any other place notified by the central government. The council can hold and acquire movable or immovable property, enter into contracts, and sue or be sued in its own name.

Composition of the council

According to Section 34, it will consist of the following members:

A chairperson having adequate knowledge and experience in dealing with public affairs and ADR will be appointed by the central government,
Full-time members,
Ex-officio member who served the post of secretary to the government of India in the Department of Legal Affairs or Ministry of Justice,
Chief executive officer and
Part-time member.

The members will hold the post for 4 years and will be eligible for re-appointment. However, they will no longer be eligible to hold office after the age of 70 years.

Duties and functions

The council has to perform various duties as given in the Bill. These are:

It can appoint expert committees to discharge its functions.
The chief executive officer of the council will be responsible for the daily administration and implementation of decisions of the council.
It is the duty of the council to promote domestic and international mediation in India by various means.
Make India a robust centre for mediation.
Make guidelines for the continuous education and assessment of mediators.
Provide procedures for the registration of mediators, their withdrawal, and their suspension under different conditions.
Make a professional and ethical code of conduct for the mediators.
Hold training and workshops in different areas to educate people about mediation.
It has to enter into memoranda of understanding with domestic and international bodies.
Recognise mediation institutes and service providers.
Publish the necessary information and data.
Maintain an electronic record of the mediated and settled agreements.

Community mediation

As the name suggests, this mediation involves a matter that is affecting the community or society at large. Section 44 provides that if any matter is affecting the peace and harmony of a community or locality, it can be settled through this kind of mediation with the consent of the concerned parties. To initiate the proceedings, the parties have to write an application to the authority under the Legal Services Authorities Act, 1987, or to District Magistrate or Sub-divisional Magistrate, and then mediators will be appointed through the panel. The procedure of such mediation is given under Section 45 of the Bill.

Matters not fit for mediation

The first schedule of the Bill provides a list of matters that are not fit for mediation. These are:

Dispute that is not submitted for mediation.
Dispute that involves allegations of fraud, forgery, impersonation, coercion, etc.
Disputes relating to minors and deities.
Disputes over the prosecution of criminal offences.
Matters prohibited by public policy.
Disputes where the rights of third parties are infringed and they are not parties to mediation.
Dispute relating to the levy of penalties.
Land acquisition matters and compensation disputes.
Proceedings under the Electricity Act, 2003.
Any investigation under the Competition Act, 2002 etc.

Reports of standing committees of the parliament

The Bill is currently submitted to the standing committees of the parliament for any recommendations or suggestions. One panel of the committee has highlighted certain issues and made recommendations to deal with those issues in the Bill. These are discussed below:

Issues highlighted by the committees

After analysing the Bill, some issues have been highlighted by some standing committees. These are:

Mandatory pre-litigated mediation

The Bill makes it mandatory for the parties to go for pre-litigated mediation even if there is no mediation agreement before approaching the court or any tribunal. This will unnecessarily bind the parties to mediation, even if they are not willing to opt for this method. This also shows the coercive nature of the Bill, which will result in delays and pending mediation cases.

When the parties are not voluntarily ready to choose mediation as a method to resolve disputes, they must not be forced to do so. Another issue in this regard is that the Supreme Court is given power under clause 26 of the Bill to make rules for pre-litigation mediation, which means that the parties will have no choice.

Non-commercial disputes

Another major issue is that the Bill is applicable only to commercial disputes if any of the parties are the central or state government, public bodies, local bodies, etc. The question is why non-commercial disputes involving the government as one of the parties can’t be dealt with through mediation.

Qualifications of the members of the council

Though the Bill provides for the appointment of members of the council, there is ambiguity with respect to their qualifications and experience. There are no specific qualifications for the members in the Bill.

International mediation

Another major issue is that an international mediation will only be considered if it is conducted in India. But there is no provision in the Bill for the settlements and agreements of the international mediation conducted outside. Whether such agreements will be enforced or challenged is not addressed in the Bill.

Recommendations and suggestions made by the committees

The following are recommendations made by the committees so far:

Pre-litigation mediation must be made optional and voluntary. The right must vest with the parties to decide which process they want to choose for resolving their disputes and seeking justice.
Another recommendation is that the appointment of the members of the council is done by a separate selection committee to ensure fairness and transparency. The provision in the Bill only provides that such members must have the knowledge and capacity, which is ambiguous. Some specific qualifications must be made for the selection of the members.
The Bill only provides for a central mediation council. India being a diverse country, there must be state councils as well. This will help to achieve transparency and accountability, and all the state councils will be under the supervision of the central council, which will also help in achieving the objective of the Bill.
The committees also suggested that all the mediators be registered under one authority, which can be the Mediation Council of India, and be given a unique registration number, which helps to hold training sessions easily.
It also recommended reducing the time limit of mediation from 180 days to 90 days and the extension period to 60 days for speedy disposal.

Conclusion

Mediation is a process by which the two parties to a dispute request a third party who acts as a mediator to assist them in settling their dispute and reaching a settlement mutually. It is a kind of alternative dispute resolution that is different from the conventional court system. In this process, there is no need to go to court or have a special courtroom; instead, it is a fast, easy, and cost-effective mechanism to resolve disputes. However, there is no uniform legislation that deals with mediation in the country. In order to fill this gap, the parliament introduced a Bill in this regard in 2021. It is currently given for recommendations to the standing committees. If passed, it will help reduce the burden on courts due to the pendency of cases.

Frequently Asked Questions (FAQs)

What do you mean by online mediation?

According to Section 32 of the Bill, this kind of mediation can be conducted at any stage through electronic means over a computer network, but the only condition is that the confidentiality of the proceedings be maintained throughout the mediation.

What is the mediation fund mentioned in the Bill?

The Bill provides for a mediation fund for the promotion, facilitation, and execution of mediation proceedings under Section 46. This fund will be administered by the council and will contain the following amounts:

Amount given by the government,
Donations, grants, and contributions,
Fees and charges received by mediation service providers and institutes,
Amounts deposited by contributors,
Amount from any other source,
Any interest or investment.

What are the functions of mediation service providers?

According to Section 42, the service providers will perform the following functions:

Maintain a panel of mediators.
Select a mediator from the panel to conduct mediation proceedings.
Provide sufficient infrastructure for the smooth conduct of all the sessions and proceedings.
Encourage the mediators to follow a professional and ethical code of conduct.
Registration of settlement agreements.

References

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The Hindu Succession Act, 1956

By

Sneha Mahawar

-

November 19, 2022

0

This article has been written by Ishaan Banerjee and Monesh Mehndiratta. This article gives an overview of the Hindu Succession Act, 1956 and explores who can get property by succession and in what order. The article gives the features of the Act and further explains the devolution of property on the basis of succession.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

The Hindu Succession Act, 1956 is an Act relating to the succession and inheritance of property. This Act lays down a comprehensive and uniform system that incorporates both succession and inheritance. This Act also deals with intestate or unwilled (testamentary) succession. Therefore, this Act combines all the aspects of Hindu succession and brings them into its ambit. This article shall further explore the applicability, and the basic terms and definitions and the rules for succession in the case of males and females.

The rules of Hindu personal law are heavily dependent on the two schools popularly known as Mitakshara School and Dayabhaga School. According to the Mitakshara School, there are two modes of devolution of property. These are:

Devolution by survivorship
Devolution of succession

The rule of survivorship is only applicable with respect to joint family property or coparcenary property. On the other hand, succession rules apply to separate property held by a person. However, the Dayabhaga school places emphasis on succession as the only mode of devolution of property. The article discusses the rules of succession under the Act and gives an overview of the whole Act. It also describes the devolution of coparcenary property along with the major changes brought by it.

Applicability

Section 2 of this Act lays down the applicability of this Act. This Act is applicable to:

Any person who is Hindu by religion or any of its forms or developments, including a Virashaiva, Lingayat, or a Brahmo, Prarthna or Arya Samaj follower.
Any person who is a Buddhist, Sikh, or Jain by religion.
Any other person who is not a Muslim, Christian, Parsi, Jew, unless it is proved that such person would not be governed by Hindu law or custom.
This Act shall also extend to the whole of India.

However, this Section shall not apply to any Scheduled Tribes covered under the meaning of Article 366 of the Constitution, unless otherwise directed by the Central Government by notification in the Official Gazette.

Who qualifies as a Hindu, Sikh, Jain or Buddhist

A legitimate or illegitimate child, where both of his parents are either Hindus, Buddhists, Jains or Sikhs.
A legitimate or illegitimate child, one of whose parents is a Hindu, Buddhist, Jain or Sikh and is brought up as a member of the tribe, community, group or family to which such parent belongs.
Any person who is a convert or reconvert to the Hindu, Sikh, Jain or Buddhist religion.

Basic terms and definitions

Agnate

Section 3(1)(a) defines ‘agnate’. A person is said to be an agnate of another if the two are related by blood or adoption wholly through males.

Cognate

Section 3(1)(c) defines a person to be a ‘cognate’ of another if such a person is related to the other by blood or through adoption but not wholly through males.

Heir

According to Section 3(1)(f), ‘heir’ is any male or female person, who is entitled to receive the property of the intestate.

Intestate

According to Section 3(1)(g), a person who dies without leaving behind a will is referred to as intestate.

Which properties does this Act not apply to

Section 5 lays down the properties that this Act does not apply to:

Any property whose succession comes under the regulation of the Indian Succession Act, 1925 by reasons of the provision under Section 21 of the Special Marriage Act, 1954. Section 21 of the Special Marriage Act states that succession to the property of any person whose marriage is solemnized under this Act and the property of the issue of such marriage shall be governed by the Special Marriage Act.
Any estate or property which goes to the single heir through the terms of any agreement or covenant formed between the Ruler of an Indian State and the Government or through any enactment formed and passed before the commencement of this Act.
The Valliamma Thampuran Kovilagam Estate and the Palace Fund are under the administration of the Palace Administration Board due to the powers conferred under the Proclamation (IX of 1124), dated 29th June 1949, given by the Maharaja of Cochin.

Features of the Act

The importance of the Act lies in the fact that it provides uniform rules for succession and reduces the conflict that arose due to confusion over different rules based on the ideas of two schools. Other features of the Act are:

It makes a uniform system of inheritance and devolution of property that is equally applicable to areas of Mitakshara and Dayabhaga school. The applicability of the Act is explained thoroughly under Section 2 of the Act. However, it does not apply to people governed by the Special Marriage Act, 1954.
Another important feature of the Act is its overriding effect given under Section 4. It abrogates all the earlier laws, customs, rules, etc that were applicable to Hindus with respect to succession. Any Act or law that is inconsistent with the provisions of this Act will be ineffective.
It has also abolished the concept of impartible estate and its succession by special mode.
Earlier, the rule of survivorship in coparcenary property was only applicable to male heirs. Female heirs were not recognised and given the right to inherit by survivorship. But after the enactment of the Act, there has been a change in this concept. Now, if a male dies intestate, leaving behind a female heir, the property would devolve according to the provisions of this Act and not the rule of survivorship.
The Act provides order of succession based on the doctrine of propinquity, i.e., nearness or closeness of blood, and gives four different categories that are:
- Class I heirs
- Class II heirs
- Agnates (people related to each other either by blood or adoption only through males)
- Cognates (people related to each other either by blood or adoption but not through males)
The rules of succession are different for the property of males and females. In the case of a male who dies intestate, Class I heirs are usually given preference over Class II heirs, and Class II heirs are further preferred over any other heirs.
The Act further abolished the limited estate of women, and she is now the absolute owner of her property, irrespective of its source. Earlier, she was a limited owner, and the rights to her property were exercised by her husband, but now all the rights are exercised by her, and she can even dispose of her property and take decisions.
The Act also recognises the right of a child in the property who is in the mother’s womb. (Section 20) It states that an unborn child in a woman’s womb would have the right to inherit the property, assuming that he has been born before a person dies intestate.
The Act also clarifies that full-blood relations are preferred over half-blood relations under Section 18. It further explains the concept of shares that are to be divided per capita or per stirpes (division of shares in which share is given to a branch of heirs as a whole) and such heirs inherit property as tenants in common. (Section 19)
It gives a list of people that are excluded from inheriting a property on different grounds. However, it abolished all the grounds that excluded a person due to his physical deformity or capability under Section 28. It also provides that the right of an illegitimate child to inherit property is confined to the mother’s property and not the father’s property.

Devolution of interest in Coparcenary property

Coparcenary is a concept that consists of those people in a Hindu joint family who inherit or have a common legal right to their ancestral property. Such people are called coparceners. These are the descendants of a common ancestor, and they acquire their right to joint property by birth. The Act also provides for the devolution of interest in coparcenary property, and there has been a change in the position with respect to coparcenary property due to the Hindu Succession (Amendment) Act, 2005. This is discussed in detail below.

Before Amendment

As mentioned earlier, the Mitakshara school recognises two modes of devolution of property, i.e., by survivorship and by succession. The rule of survivorship applies to coparcenary property, while succession applies to the separate or self-acquired property of a person. Coparcenary property is an ancestral property of a Hindu joint family and consists of:

Property inherited by a person from their ancestors,
Any property whose acquisition was done by the coparceners with the help of ancestral property,
Joint acquisition by coparceners,
Separate property of coparceners as common stock.

The concept of coparcenary ceases to exist once a partition is done in a Hindu joint family. Section 6 of the Act provides for the devolution of interest in coparcenary property. Before the Amendment of 2005, if a person died intestate, i.e., without making a will, his interest in the coparcenary property would be governed and devolved according to the rule of survivorship and not succession. It further prescribed that if a person who died intestate left female heirs mentioned in Class I, then the rules of succession would be applicable, which means that the rule of survivorship was not applicable to female heirs nor did they inherit property if male heirs were present.

For example, if A person X dies intestate, leaving behind his two sons, B and C, and a daughter, D. His undivided share would devolve on B and C according to the provision before the amendment. In the case of Satyendra Kumar v. Shakuntala Kumaru Verma (2012), the court held that if a person or coparcener gifts his undivided share in a coparcenary property as a gift and there is no evidence to show the completion of partition, such a gift will be void.

After amendment

The position of the law with respect to coparcenary property has changed since the 2005 amendment. It is now a well-established law under Section 6 of the Act that daughters are coparceners by birth and have the same and equal rights as sons. She has all the rights to inherit coparcenary property like a son and would also have to fulfil the liabilities. All of this is applicable after the commencement of the amendment Act. However, there will be no change in any devolution done before 2004.

It also provides that such a property inherited by a female will be her own property, and she will be an absolute owner and not a limited owner. It further states that a coparcenary property will be devolved assuming that a partition has taken place with respect to such property, in which the daughters will receive the same share as given to the sons. The Court, in the case of Ramesh Verma v. Lajesh Saxena (2017), held that the rules of succession will be applicable to separate property acquired by a person on division by notional partition.

The Madras High Court clarified that unmarried daughters are coparceners by birth and must be treated equally with sons and hence be given an equal share like him. The Amendment Act also provides that the right of married girls to seek partition is an absolute right and is not restricted by any limitation (Nagammal v. N. Desiyappan, 2006). The Supreme Court in one of the cases held that the rights of daughters as coparceners under the 2005 amendment were not limited to their date of birth. They are entitled to be coparceners irrespective of their birth date (Prakash v. Phulavati, 2016).

Types of succession

Testamentary Succession

When the succession of the property is governed by a testament or a will, then it is referred to as testamentary succession. Under Hindu law, a Hindu male or female can make the will for the property, including that of a share in the undivided Mitakshara coparcenary property, in favour of anyone. This should be valid and legally enforceable. The distribution will be under the provisions of the will and not through the laws of inheritance. Where the will is not valid, or not legally enforceable, then property can devolve through the law of inheritance.

Intestate Succession

Intestate has already been defined above as someone who dies leaving behind no will or testament. When such a situation happens, then this property will be distributed among the legal heirs by following the laws of inheritance.

Rules for ownership in the case of males

Section 8 lays down the general rules for succession in the case of males. Section 8 applies in cases where succession opens after the commencement of the Act. It is not necessary that the death of the male Hindu, whose property has to be devolved by inheritance, should take place after the commencement of this Act. For example: if a father, during his lifetime, settles his property in favour of his wife and after the death of his wife, wishes that it should pass to his daughter, and the daughter dies after the commencement of this Act, then the succession will open and the property would devolve according to Section 8.

Classification of heirs

Heirs are classified into four categories:

Class I
Class II
Class III (Agnates)
Class IV (Cognates)

Class I heirs

Sons
Daughters
Widows
Adopted sons
Mothers
Sons of a predeceased son
Widows of a predeceased son
Son of a predeceased son of a predeceased son
Widows of a predeceased son of a predeceased son
Daughter of a predeceased son
Daughter of a predeceased daughter
Daughter of a predeceased son of a predeceased son
Son of a predeceased daughter
Daughter of a predeceased daughter of a predeceased daughter
Son of a predeceased daughter
Son of a predeceased daughter of a predeceased daughter
Daughter of a predeceased daughter of a predeceased son
Daughter of a predeceased son of a predeceased daughter

All of them will inherit simultaneously and even if any of them is present, then the property will not go to the Class II heirs. All Class I heirs have absolute rights in the property and the share of a Class I heir is separate, and no person can claim a right by birth in this inherited property. A Class I heir cannot be divested of his/her property, even by remarriage or conversion, etc.

Until the Hindu Succession (Amendment) Act, 2005, the Class I heirs consisted of twelve heirs, eight of which were females and four were males, but after 2005, four new heirs were added, of which eleven are female and five are male.

Now we will observe who classifies as son, mother, daughter or widow and what kind of interests they have in the property.

Son

The expression ’son’ can include both a natural-born son or adopted son but does not include a stepson or illegitimate child. In Kanagavalli v. Saroja AIR 2002 Mad 73, the appellants were the legal heir of one Natarajan. Natarajan was earlier married to the first respondent, the second respondent was the son and the third respondent was the mother of Natarajan. The first respondent obtained a decree of restitution of conjugal rights but still no reunion occurred between them. The first appellant claimed to have married Natarajan in 1976 and the appellants 2 to 5 were born through them. Natarajan died afterward. The suit was filed for declaration that the appellants were the legal heirs of the said Natarajan along with respondents 1 to 3, and they were entitled to the amounts due from the Corporation where Natarajan worked. The Court held that a son born of a void or voidable marriage that is declared to be annulled by the Court will be a legitimate child and would thus inherit the property of his father. A son has an absolute interest in the property and his son cannot claim birthright in it. Therefore, ‘son’ does not include a grandson, but does include a posthumous son.

Daughter

The term ‘daughter’ includes a natural or adopted daughter, but not a stepdaughter or illegitimate daughter. The daughter of a void or voidable marriage annulled by the Court would be a legitimate daughter and thus would be eligible to inherit the father’s property. The daughter’s marital status, financial position, etc is of no consideration. The share of the daughter is equal to that of the son.

Widow

The widow gets a share that is equal to that of the son. If there exists more than one widow, they collectively take one share that is equal to the son’s share and divide it equally among themselves. This widow should have been of a valid marriage. In the case of Ramkali v. Mahila Shyamwati AIR 2000 MP 288, it was held that a woman who was in a voidable or void marriage, and that marriage was nullified by the Court on the death of the husband, would not be called his widow and would not have rights to succeed to his property.

If the widow of a predeceased son, or the widow of a brother has remarried, then she shall not be given the term of ‘widow’, and will not have the inheritance.

Adopted son

The Act has clearly clarified the position of sons with respect to succession. He has been given all his rights as of the date the Act was enacted. Before the amendment of 2005, he was preferred over daughters and was eligible to be a coparcener but after the amendment, even the daughters are given equal rights. The question that arises now is whether an adopted son has any right to inherit property. This question has been amicably addressed by the Act. The explanation to Section 6(4) of the Act clearly states that a son, grandson, or great-grandson includes a son who was born or adopted before the commencement of the Amendment Act of 2005. This also means that an adopted son is treated the same as a natural son under the Act and has all the rights given to him.

Class II heirs

The Class II heirs are categorized and are given the property in the following order:

Father
Son’s Daughter’s son
Son’s daughter’s daughter
Brother
Sister
Daughter’s son’s son, daughter’s son’s daughter, daughter’s daughter’s son, daughter’s daughter’s daughter
Brother’s son, sister’s son, brother’s daughter, sister’s daughter
Father’s father, father’s mother
Father’s widow, brother’s widow
Father’s brother, father’s sister
Mother’s father, mother’s mother
Mother’s brother, mother’s sister

If no one from the Class I heirs takes the property, then Class II heirs fall in line to get the property. In Kalyan Kumar Bhattacharjee v. Pratibha Chakraborty AIR 2010 (NOC) 646 (Gau), the property fell into the share of the defendant’s brother named Ranjit, who was unmarried. However, he became traceless and the property was divided amongst two other brothers in equal shares. The plaintiff’s brother called Jagadish then executed a will in favour of both the plaintiff and died afterward. However, the defendants then asked them to vacate the land, contending that inter alia that the land has been purchased in the name of three brothers; namely Jagadish, Ranjit and Kalyan, defendant number 1. It was held that when a Hindu male is unmarried and he dies, and is not survived by a Class I heir, the Class II heirs would get the property.

Similarly, when in heirs in Class III and IV are there, the property would only go to them if no one from Class II is present.

Class III heirs

This consists of the agnates of the deceased. Class III heirs only inherit the property when none from the earlier classes gets the property.

An agnate is a person who is related to the intestate only through male relatives. An agnate can be a male or a female.

Rules of preference among agnates

Each generation is referred to as a degree. The first degree is intestate.
Degrees of ascent mean ancestral or upwards directions.
Degrees of descent means in the descendants or downward direction.
Where an agnate has both ascent and descent degrees, each has to be considered separately.
An agnate having a descent degree will be preferred over the one having an ascent degree.
When two agnates have ascent and descent degrees, the one having a lesser number of ascent degrees will be preferred.

Class IV heirs

A cognate (Class IV) is someone who was related to the intestate through mixed relatives, in terms of sex. For example, an intestate’s paternal aunt’s son is his cognate, but his paternal uncle’s daughter will be an agnate.

Therefore, to sum up it can be said that the property of the Hindu male devolves in the following manner:

First, to the heirs in Class I.
Second, if there exists no heir of Class I, then it goes to Class II heirs.
Third, if none from the Class I or II exists, then it goes to the agnates (Class III).
Fourth, if no one from the earlier three classes exists, then it goes to the cognates (Class IV).

Persons disqualified from heirs

The Act abolished all disqualifications on the basis of physical deformities, mental capabilities, or morals and instead gave a new set of disqualifications. Prior to the amendment of 2005, remarriage was a ground of disqualification for:

Intestate’s predeceased son’s widow,
Widow of predeceased son of a predeceased son,
Widow of a brother of intestate.

However, after the amendment, disqualification of heirs has been classified as:

Disqualification due to murder
Disqualification due to conversion

Disqualification due to murder

Section 25 of the Act disqualifies a murderer from inheriting the property of the person whom he murdered. He is treated as non-existent and is not considered a part of the line of descent (Nirbhai Singh v. Financial Commissioner, Revenue, Punjab & Ors., 2017). A murderer under the Section also includes a person who aids or abets such a crime.

Disqualification due to conversion

Section 26 of the Act disqualifies a person or his children born after conversion, who converts from the Hindu religion to any other religion. The only condition upon which his descendants are eligible to inherit is that they must be Hindus at the time of succession. Section 27 further gives the effect of disqualification and mentions that in case of any disqualification, the property would be inherited considering that the person disqualified died before the intestate.

Changes brought by Succession Act 1956

The Act has brought some major changes in the rules of succession of the property. One of those is the manner of devolution of property. It has provided a uniform system of devolution of a coparcenary property and self-acquired or separate property. The other changes are discussed below.

Sapinda relationships are abolished

The present law has made several changes, and among those, it abolished the previous Sapinda relations that used to inherit property out of love and affection. It has now mentioned the list of heirs and divided them into four categories. People mentioned in such categories like Class I heirs, Class II heirs, agnates and cognates are entitled to inherit the property.

Changes with respect to the Hindu joint family

Earlier, coparceners did not have any right to make a will with respect to their share or property. This right has now been recognised under Section 30. The rule of survivorship has been replaced by uniform rules of succession that are different for males and females. The Act also recognised the rights of daughters as coparceners and they would now have the same rights as sons.

Removal of various disqualifications

The previous law disqualified the following people from inheriting a property:

Lunatics,
Idiots,
Unchaste widows,
Disqualifications based on physical deformities, etc.

However, such disqualifications have been abolished now, and the only 2 disqualifications under the Act are being a murderer or a converted person.

Succession in the separate property of a propositus

The right of succession in the separate property of propositus i.e. a person who died, was not recognised earlier, but now, it is well established that Class I heirs can inherit the property of propositus in equal proportion simultaneously with the succession in joint property. These Class I heirs are preferred over Class II heirs, and they cannot inherit if Class I heirs are present. Similarly, Class II heirs are preferred over agnates, cognates, and so on.

Changes with respect to illegitimate sons

An illegitimate son can only inherit his mother’s property but not his father’s property. He has not been given any rights in coparcenary property. His position was earlier chaotic due to the two schools and varied from caste to caste.

Changes in consanguine and uterine blood relations

Uterine blood relations were not recognised under the previous law and rules, but consanguinity had its recognition. Uterine relations are those where there is a common ancestress but different husbands. Under the present law, both relationships are recognised and given rights accordingly.

Other changes

The other changes are:

Women are absolute owners of their property rather than limited owners.
Earlier, the benefit of the doctrine of representation was given only to sons, grandsons, great-grandsons or pre-deceased sons. But it extends to daughters as well.
The Act abolished impartible estate and its succession.
It abolished the disqualification based on remarriage.
It is not applicable to people governed by the Special Marriage Act, 1954.
It has removed any kind of difference between male and female heirs.

Rules for ownership in the case of females

With the coming of The Hindu Succession Act, 1956, women are granted ownership of property, whether it was acquired before or after the commencement of the Act, thus abolishing their ‘limited owner’ status. But it was only in the Hindu Succession (Amendment) Act, 2005 that it was decided that daughters would be entitled to an equal share in the property as the son. Therefore, the 2005 Amendment serves as a defender for female rights.

The property in case of a female Hindu intestate dying will devolve through:

Firstly, through the sons and daughters, which would also include the children of a predeceased son or a predeceased daughter) and the husband.
Secondly, on the heirs of the husband.
Third, upon the mother or the father.
Fourth, on the father’s heirs.
Fifth, on the heirs of the mother.

In the case of any property being inherited by a female Hindu by her father or mother and there is no son or daughter of the deceased (including a child of predeceased son or daughter), then it shall devolve in favour of the heirs of the father.

Similarly, in the case of any property being inherited by a female Hindu by her husband or her father-in-law, and there is no son or daughter of the deceased (including the child of a predeceased son or daughter), it shall devolve in favour of the heirs of the husband.

Conclusion

This article explored some basic terms and definitions used in the Hindu Succession Act, 1956. There are four classes of heirs to which property devolves in case if a Hindu dies leaving behind a will, in which case he becomes intestate. This property devolves through these classes. If no one from the earlier class is present, then it devolves to the next class and so on. Lastly, this article also explored the 2005 Amendment to this Act, which brought much-needed protection to women’s rights regarding the property.

The Act has been successful in bringing uniformity to the succession of property among Hindus. It tried to rectify all the loopholes that existed by enacting the 2005 amendment. However, there is an ambiguity as to people to whom this act is not applicable. One of the major impacts of this Act is that it emphasises equality between males and females by recognising the rights of daughters as coparceners. Women now have the right to be a coparcener, inherit property, be absolute owners, etc. The Act also abolished disqualifications based on the physical deformity and mental depravity and instead disqualified murderers and converted persons, which is reasonable.

Frequently Asked Questions (FAQs)

What is the difference between per stirpes and per capita succession?

In per stirpes succession, many heirs who belong to different branches get the share of the property given to their branch as a whole, while in per capita succession, the share of the property is given equally to the people of a branch.

What happens when two or more heirs succeed together?

When two or more heirs succeed and inherit the property of an intestate together, they inherit the property as per capita and not per stirpes and as tenants in common. (Section 19).

What is presumed in case of simultaneous death?

According to Section 21, in cases where two people die simultaneously and there is ambiguity as to who survived whom, it is presumed that the younger person between the two survived the other.

References

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

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

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

Section 92 CPC

By

Rachit Garg

-

November 17, 2022

0

The article is written by Tushar Singh Samota, a law student from University Five Year Law College, Rajasthan University. It discusses Section 92 of the Civil Procedure Code,1908 along with its essentials and applicability. The discussion will be supported by various judicial pronouncements.

It has been published by Rachit Garg.

Table of Contents

Introduction

The Indian Trusts Act of 1882 mainly regulates private trusts in India. To protect the public’s interests in public trusts and charities, a particular type of litigation under Section 92 of the Civil Procedure Code, 1908 was developed. It grants civil courts the authority to hear representative lawsuits brought by the Advocate General or two or more trust beneficiaries. The Court is given broad powers, including the ability to change the initial purpose of the trusts in certain circumstances. This section replaces the provisions under The Religious Endowment Act of 1863 or other such legislation. The presence of a public trust with a religious or charitable purpose is a requirement for a suit under this provision of the CPC.

What is a public trust?

Religious or charitable public trusts are essential communitarian vehicles for the provision of public facilities, social services, and diverse cultural activities. They aid in vindicating human rights and implementing a strong social inclusion strategy. However, trusts are prone to a variety of issues, including mismanagement of cash and property, fraud, carelessness, apathy, and internal arguments among trustees. As a result, it is the legal system’s job to safeguard the sanctity of trusts to satisfy the expectations of both donors and the general public.

In the absence of comprehensive legislation in India on the issue of public trusts, Section 92 of the Civil Procedure Code, 1908 has taken on enormous relevance. As the present trend shows, civil court rulings are impacted by protection elements such as regulation and facilitation. As a result, courts have taken on the function of parens patriae (parent of the nation) for the sake of public confidence.

The rationale behind public trusts

The establishment and administration of public trusts are one-of-a-kind phenomena. It entails dedicating property or revenue to a public purpose, divesting that property right, placing trust in trustees, and eventually helping public beneficiaries. It is founded on the interaction between common law and equity. The donors’ and beneficiaries’ expectations, as well as the trusts’ socio-cultural significance, inspire their successful operation. Their functioning is built on the confidence of trustees, recipients, and contributors. After all, trust implies a willingness to accept the risks of failure while expecting such failures to be prevented or repaired, which can only be secured by a safety mechanism.

Essential of Section 92 CPC

Section 92 of the Code of Civil Procedure, 1908 deals with public charities and offers several ways to fix a public trust that isn’t working properly. Under this Section, the Court of the District Judge has the power to administer public charities. The following are the key components of the provision:

It allows the Advocate General or two or more other parties with an interest in the trust to file a lawsuit regarding a breach of the trust with the court’s permission for the reliefs specified therein.
The plaintiffs are merely acting as the beneficiaries’ representatives, and the action is brought on behalf of all.
It shields public trusts with charitable or religious purposes from being harassed by lawsuits brought against them.
Before the Advocate General files an action of this sort, prima facie evidence fulfilling breach of trust or any of the required factors for obtaining court orders must be present.
The litigation may be brought against people in possession of trust property who have a claim against the trust, or against trustees who have committed a breach of trust. For the court to rule on the issue, the defendants must show that the claims in the plaint are false and frivolous and that they were filed with the intent of harassing the trust.

When is Section 92 applicable?

Section 92 is a comprehensive Code in and of itself for claims based on an alleged breach of any express or constructive trust established for charitable or religious reasons. The requirements discussed above must be met for the Section to apply. The grant of leave to file a claim is a condition precedent, not a simple irregularity that may be remedied.

In that regard, the requirements of Section 92 are mandatory, and the defendant cannot relinquish that right and bestow jurisdiction on a court. The court is not required to make a reasoned order when granting leave to sue under this Section. It does not even have to give notice to the defendant of an application for leave to file as the order granting leave is administrative.

While granting leave under Section 92 of the Civil Procedure Code, the District Judge issues a court order. It should imply that the District Judge deliberated before issuing leave. However, as the rights of the parties are not impacted, it is not necessary to pass a detailed order but it would suffice if the order demonstrated that it has been passed by the District Judge after due application of mind.

In the case of Bishwanath v. Sri Thakur Radha Ballabhji, 1967 it was determined that to invoke Section 92 of the Code of Civil Procedure, three requirements must be met:

Firstly, the trust was established for charitable or public purposes,
Secondly, there was a breach of trust, and
Lastly, a court order was required to be followed in the administration of such a trust.

If any of the three elements mentioned in this case is not met, then the suit will fall beyond the purview of the aforementioned Section.

Representative actions are socially helpful since they bring individuals with similar issues together. A suit under this Section is one of a unique kind, brought to preserve public rights in trusts and charities and to respect an express or constructive trust based on an action alleging a breach of such trust or the need for instructions regarding its administration against a trustee to fall under the purview of the provisions of Section 92, CPC. However, since the right established is a personal right to act in a particular office, the clause does not apply if the lawsuit is between individuals who each individually claim a right to succeed to the office of trustee.

To maintain a suit under Section 92, it must be demonstrated that there is a trust for public purposes of a charitable or religious nature; that there is a breach of such trust; or that the court’s direction is required for the administration of the trust, and that the relief sought in the suit is one or more of the reliefs specified in the section. This Section would not apply to the claim if any of these elements were not met. As Section 92 deals with the concept of public charities so only public trusts are covered under this section.

So, to bring a suit under this Section, it must be demonstrated that the beneficial interest in the trust is vested in an indeterminate and fluctuating group of persons and that the trust is permanent. A religious endowment must thus be classified as private or public depending on whether the beneficiaries are specific individuals or the broader public or a subset thereof according to the circumstances accordingly.

Remedies under Section 92

The variety of remedies provided by Section 92 is fairly broad. By focusing on the welfare of the trust, the judiciary has, on the whole, increased the effectiveness of its work. The courts have shown restraint and tolerated modest carelessness or mistakes in record-keeping. They have also been forceful and have dismissed trustees where there has been flagrant abuse of power, fraud, or misappropriation. In several situations involving the appointment of new trustees, the courts have taken into consideration the founder’s desires, the organisation’s socio-historical significance, the person’s or family’s past affiliation with the institution, competency, and prior precedents.

The Judiciary has stressed respect for the institutional trust, avoiding interfering with the spiritual, ceremonial, or ethical code, and protecting the trust property and interests of the body of worshipers while formulating schemes under Section 92. By allowing for the diversity of schemes, it has also given room for future adaptation to changes. The requirements of this Section primarily address several flaws in how public trusts operate. The list of reliefs listed in Section 92 is not all-inclusive, nevertheless. The “Residuary powers” phrase in the Section gives civil courts the authority to provide whatever remedies that may be necessary for a given instance.

The Supreme Court noted in Prag Das Ji Guru Bhagwandasji v. Patel Ishwarlalbhai Narsibhai, (1952) that it cannot pronounce that the suit properties belong to the trust since such relief has not been envisioned under Section 92. Although this observation is not intended to diminish the court’s residuary jurisdiction under this section, it has had unforeseen implications. This is demonstrated in practice, where the categorization of remedies into certain headings has resulted in rigidity and the courts’ inability to deal with a variety of issues.

Judicial pronouncements

Ghat Talab Kaulan Wala v. Baba Gopal Das Chela Sruti Das, (2020)

The Court determined in this case of Ghat Talab Kaulan Wala v. Baba Gopal Das Chela Sruti Das, (2020) that Section 92 of the CPC allows for a claim against a Trust to be brought to dismiss any trustee, appointing a new trustee, or vesting any property in a trustee, among other things. Because the complaint, in this case, was brought by a Trust against a Sevadar, the method outlined in Section 92 of the Civil Procedure Code would not apply. It went on to say that Section 92 of the Code gives a person the ability to sue if there is an alleged breach of an explicit or constructive trust established for a charitable or religious purpose.

Bhupinder Singh v. Joginder Singh, (2019)

Referring to Section 92 of the Code, the Apex Court in this case of Bhupinder Singh v. Joginder Singh, (2019) stated that an action under the provision might be filed by the Advocate General or by two or more people with an interest in the trust who have secured leave of the Court. It was also said that no dispute granting leave is an essential prerequisite before an action under Section 92, CPC can be heard. Even though the Defendants have not raised any defences, the Court’s permission is required before filing an action under Section 92 of the Code.

However, it was also noted that the aforementioned leave is not necessarily obligatory and that in an emergency, the Court can grant leave even without providing notice to the opposing party, although the responder has the right to make an application for revocation of the granted leave.

Jamia Masjid v. K V Rudrappa, (2021)

In this case, Jamia Masjid v. K V Rudrappa, (2021) if the title is challenged, the Court may have to consider whether the Trust owns the plan for administration and management via a representative suit brought under Section 92 of the CPC. Furthermore, the parties involved would be prevented from filing a second suit on the same or nearly the same matter under the concept of Res Judicata.

Thus, the court stated that there was a prima facie conclusion that the suit property belonged to him. The concerns in the first complaint, which were for the administration and management of trust properties and funds, are separate from the ones in the current proceedings. The Supreme Court granted the appeal and reversed the HC’s decision.

Paramatmananda v. Ramji Tripathi, (1974)

It was decided in the case of Paramatmananda v. Ramji Tripathi (1974), that just the accusations in the plaint should be examined in the first instance to determine whether the complaint fits within the purview of Section 92. However, if the evidence is taken and it is discovered that the breach of trust alleged has not been established and that the prayer for the direction of the Court is vague and not based on any solid foundation in fact or reason, but is made solely to bring the suit under Section 92, then the suit must be dismissed.

Conclusion

As a result, we can conclude that a decision in a lawsuit brought under Section 92 of the CPC has a final effect against the entire world, either as a judgement in rem or by considering everyone as a party to the lawsuit. A lawsuit under Section 92 CPC may only be brought to a permanent public trust, and the judgement in such a lawsuit would be rendered in rem rather than in personam. When the District Judge rules that the property is a public trust and establishes a plan for its management, and no one objects to the public or permanent nature of the trust, no party can dispute the permanent nature of the trust.

It is not permissible for a third party to assert that the District Judge should not have appointed the person so appointed by him but rather should have appointed some others who had a better claim when there is a public trust and a person has been named as trustee in a suit brought against the then trustee. To that extent, a judgement issued according to Section 92 CPC binds not only the parties to the lawsuit but also third parties.

Frequently Asked Questions (FAQs)

Under Section 92 CPC, who may file a lawsuit?

Under Section 92 of CPC only public trusts, not private trusts may file a lawsuit.

What is the primary goal of Civil Procedure Code Section 92?

The fundamental goal of Section 92 is to shield public trusts with charitable or religious motives from being harassed by lawsuits brought against them.

Who may file on a trust’s behalf?

Without pleading with all of the trust’s trustees, a lawsuit against the entity cannot be maintained. Suits, however, may be brought by any one or more of the trustees with the consent of the other trustees.

Can a trust bring a claim in its name?

A trust is neither a juristic person nor a legal entity since a juristic person has its legal existence and can bring or receive legal action in a court of law.

References

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Canada minimum wage

By

Sneha Mahawar

-

November 17, 2022

0

This article was written by Mahesh P Sudhakaran pursuing BBA LLB in KLE Society’s Law College Bangalore. This article gives a brief overview of the minimum wage system in Canada.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

The debate on the role of the state is as old as aristocratic principles. After centuries of debate, a certain kind of consensus was arrived at which asserted that the state’s ultimate responsibility is to ensure the well-being of all its citizens, and with this came the idea of a welfare state. A welfare state is a state that is focused on providing basic social and economic security to its citizens by protecting them from inevitable societal risks such as old age, unemployment, accidents, and sickness. Its roots in Canada can be traced to the initial thirty years after Confederation. During this time, the function of government was under scrutiny. The idea of a welfare state gives rise to the need for social welfare legislation. As the welfare of citizens is the desired end, legislation is the means to such an end. One of the key forms of social legislation is the minimum wage legislation. The minimum wage is a key policy tool that acts as a catalyst for poverty reduction and social justice. This concept in itself was established in the fall of the 19th century in New Zealand and Australia, and within 30 years it created its formidable presence in Latin America and the Caribbean (LAC). The minimum wage was adopted as an effective social justice tool to ensure socially acceptable wages for workers. The underlying ideology behind minimum wages was accommodated by legislatures across the globe due to public demands for social justice among workers. The minimum wage system acts as a catalyst for social justice by dealing with key social issues like income inequality, poverty, and inflation.

What is minimum wage

The ILO defined minimum wages as “the minimum amount of remuneration that an employer is required to pay wage earners for the work performed during a given period, which cannot be reduced by collective agreement or an individual contract”. This definition in general talks about the binding nature of this concept. Minimum wages in general can be set by statute, a wage board, a wage council, a decision of a competent authority, or by industrial or labour courts or tribunals. Every social welfare legislation aims to curb a social evil, minimum wage seeks to protect workers against unreasonable and unduly low pay. It can also be deemed a policy decision with the prospect of fighting poverty and income inequality. It is pertinent to understand that minimum wages alone can’t be designated to solve these issues, they are corollary to various other policies and norms and complement various other social and employment policies. In simpler terms, the minimum wage is the lowest wage a worker may be paid as per law. It imposes legal accountability upon the employers, forcing them to pay wages not below the lawfully decided rate. It is the price ceiling below which labourers shouldn’t sell their labour. Originally the purpose of creating a minimum wage system was to deal with a social issue termed ‘sweating’, which means working at wages so low that they were inadequate to sustain or support the basic necessities of a family.

Origin of minimum wage in Canada

In Canada, the early 20th century marked the origin of the first minimum wage rate. It initially applied primarily to women and children. Manitoba and British Columbia were the first provinces to introduce minimum wage legislation in 1918, followed by Ontario, Quebec, Nova Scotia, and Saskatchewan, who followed suit in 1920. Prince Edward Island was the last province to adopt minimum wage legislation that accommodates both men and women in 1960. In Canada, the minimum wage is the lowest wage rate employers can legally pay an employee and is a key labour code standard.

Pre 1996 approach

After the establishment of part III of the code, the federal minimum wage was specified in the Code and later on in 1971, authority was conferred upon the Governor in Council to adjust these rates through regulation. It is important to note that, other than federal rates, there are provincial and territorial minimum wage rates as well. After the adoption of the concept, the federal minimum wage was set at $1.25 and later increased to $4.00 per hour. During the mid-90s, the federal rate took a dive below territorial and provincial rates, amounting to $5.95 hourly.

Post-1996 approach and current approach

Post the amendment the significant dive was addressed in order to accommodate the changes of the provincial and territorial rate automatically into the federal minimum wage rate in order to avoid another similar scenario, this was done with the view to ensure that the federal rate would adapt to the changes in economic and social conditions. It is important to note that the Canadian government does not set a maximum limit to the amount of wages that can be paid but only the minimum rate of wages to be paid. Mostly all workers are deemed eligible for minimum wage, irrespective of whether they work full-time, part-time or even casually.

Objectives

The following are the purposes for which minimum wage legislation was enacted in Canada:

Dealing with poverty

The minimum wage system is an effective means of poverty alleviation as it ensures basic pay to all, assisting in maintaining a balanced standard of living.

Keeping a check on wage inequality

The minimum wage system ensures equal pay for all people carrying out the same quotient of work, upholding the idea of wage equality and keeping a check on wage inequality.

Put a floor limit below which transactions are not allowed to occur

The minimum wage system provides a certain standard for transactions, giving an insight into the limit below which transactions aren’t supposed to take place.

Elimination of low-wage work and facilitate movement growth within the value-added chain

Since the beginning of time, people have been paid for their work disproportionately to the amount undertaken by them. The lack of balance between the work done and the payment of wages was significant. However, the minimum wage system prohibits the whole idea of low-wage work as it provides standards of wages that are to be compulsorily complied with.

Give incentives to leave income maintenance programs

The minimum wage system in itself entitles workers to a certain sum of wages; hence, reliance on other benefit programs can be withdrawn.

Facilitating the growth of aggregate demand with associated multiplier effects

As each person is guaranteed payment for the work carried out based on inflation and CPI, the purchasing power of an individual grows and, as a result, the same person’s capability to buy increases, causing an increase in the aggregate demand for goods and services.

Assistance in payment of rising tuition fees

The minimum wage system serves as an excellent tool for both domestic and international students, giving them an opportunity to earn part-time wages that are consistent and sufficient based on current inflation levels. This evidently helps students meet their day-to-day expenses and also tuition fees.

Taking care of the unprotected who have minimal individual or collective bargaining power

The minimum wage system is an equitable social reform that entitles workers to a certain sum of wages for their work, entitling them to wages based on the ever-varying prices of necessities. Such earnings enable the unprotected classes of society to be entitled to equitable compensation without any discrimination.

Reduction of low-wage competition

There is absolutely no room for low-wage competition as each worker is entitled to the same sum of wages for the same amount of work.

Limit the need for unions

The guarantee of minimum wages upholds the basic rights of labourers giving them access to necessities. This eliminates the need for unions to a certain extent as the basic rights of workers are already protected and recognised through labour standards.

Model of emulation for others

Being a welfare state and embodying social welfare legislation like the minimum wage is a step in the right direction and sets the right example in terms of good governance and the public good.

Calculation of minimum wage rate

The minimum wage is calculated and varies in various provinces and territories. Rates can be set and changes can be made according to regulations, rates of inflation, and social and other economic conditions. Yukon was the first jurisdiction to annually review the minimum wage when compared to the Consumer Price Index (CPI).

Types of minimum wage rates in Canada

Federal Minimum wage
Provincial minimum wage
Special minimum wage

Federal minimum wage

The federal minimum wage is the type of minimum wage applicable to workers in the federally regulated private sector. This includes the following- employees in federally regulated industries, federal Crown corporations and certain Indigenous government activities on First Nations reserves. Every employee working in a federally regulated business or industry has certain guaranteed protections related to the payment of wages and other amounts. As per fresh guidelines on December 29, 2021, the federal minimum wage is $15.00 per hour. Any federally employed person is entitled to the same. This also includes interns. On 1st of April every year, the federal minimum wage rate may change depending upon the rate of inflation. The increase is based on Canada’s Consumer Price Index for the previous year.

Employees under 17 years of age

The rule for persons under the age of 17 is as under:

Such person can work if-

The person is not required by provincial law to attend school
The work carried out by such person is not likely to endanger their health or safety.
They are not required to work underground in a mine or in employment prohibited for young workers under the following:

Explosives Regulations, 2013,
Nuclear Safety and Control Act and Regulations, or Canada Shipping Act, 2001, and
Such a person is not required to work between 11 p.m. on one day and 6 a.m. the next day.

The minimum wage also applies to a person under the age of 17. However, if that person’s respective province or territory fixes the minimum hourly rate based on age, then the minimum wage will be the highest of those rates among either territorial or provincial rates.

Part III of the Labour Code

Part III of the Canada Labour Code is concerned with federal labour standards. These set forth provisions for employment conditions, work hours, wages payment, leaves, vacation, holidays, and more. Section 178 of this Code talks about federal minimum wages. The current basis pertaining to the minimum wage has two key elements in virtue of Section 178 of Part III of the Code. It states that:

First, the federal minimum wage is set as the “minimum hourly rate fixed, from time to time, by or under an Act of the legislature of the province where the employee is usually employed and that is generally applicable regardless of occupation, status or work experience .”
Second, the Governor in Council has the authority, by order, to

a) replace the minimum hourly rate that has been fixed with respect to employment in a province with another rate;

b) fix a minimum hourly rate with respect to employment in a province if no such minimum hourly rate has been fixed.

When payment isn’t on an hourly basis

Section 178 also gives directions pertaining to scenarios wherein workers are paid on a basis other than an hourly rate, In such situations, workers are to be paid in an equivalent denomination as if they were paid hourly.

Reporting upon call

When workers arrive at work after being called by employers, they must be paid for not less than 3 hours at their regular rate of wages regardless of the amount of work done.

Exemptions

If work carried out by the person is under Provincial Apprenticeship Act then this rule is exempted.
account of the employer arranging food and accomodation, however wages can’t be reduced for more than 50 cents per meal and 60 cents per day for each day of accommodation.

Wage recovery system

There is a wage recovery system that assists federal employees. It empowers the labour program to collect sums for the recovery of wages. It can collect wages for hours worked, pay on vacation, severance, termination pay, etc. It helps in wage recovery for up to 24 weeks, and this system also helps workers to determine their own wages in circumstances wherein the employer does not provide payroll. This system also formulates a redressal system which comprises a review and appeal process.

Provincial minimum wages

A federal minimum wage applies to anyone working in federally regulated industries, and for workers who don’t work for these federally regulated industries, a provincial minimum wage applies. All of the nation’s 10 provinces and three territories have their own distinct rates of minimum wages. Provincial wage rates in each of the provinces and territories can be found here. Minimum wages vary in different ways within the nation as they are set forth by the labour legislation of each province and territory. There are certain provinces, like Saskatchewan, Manitoba and New Brunswick, that change or modify their minimum wages as per their provincial cpi, which tracks the changes in consumer prices or inflation, on the other hand, the Northwest Territories’ minimum wage is scrutinized every two years by a special Minimum Wage Committee to deliberate on whether or not the rate should be increased.

Special minimum wage

Another type of minimum wage system in Canada is the special minimum wage. Federal or provincial minimum wage rates apply throughout the country generally, but there are certain provinces wherein certain special wage rates operate. These kinds of special minimum wage rates apply on the basis of different parameters applied in Ontario, Quebec, and British Columbia. These parameters maybe:

Special rate for students
Special rate for homeworkers
Hunting, fishing and wilderness guides special rate
Special rates for raspberry pickers
Special rate for strawberry pickers
Special rate for live-in domestic workers

Live-in camp leaders’ special rate deductions

The employer is entitled to make certain deductions from the wages being paid, these include:

Deductions mandated by law

Tax deductions
Insurance premiums
Deductions ordered by the court orders for child support
Trade union dues
Overpaid salaries or wages

Deductions voluntarily requested by workers

Donations for the purpose of charity
Savings deposits or plans
Medical funds or premiums(including dental)
Life insurance
Retirement a.k.a pension plans

It is important to note that any such voluntary request or authorization for deduction must be in writing and must consist of the specific amount and the purpose for deductions (Including frequency of deductions as well).

How can you supplement your minimum wage income

Sometimes it may become necessary to derive other means of supplementing minimum wage income. The rampant growth of technology also paved the way to modern and innovative modes of supplementing one’s income in Canada. These modes include:

Start a profitable blog
Participate in Market research
Becoming a proofreader
Rent out a car to deliver goods
Freelance work
Babysitting
Freelance work

Conclusion

The Constitution of Canada imposes a duty upon the state to safeguard the well-being of its citizens. The state, in order to fulfil its role as a welfare state, needs to adopt social welfare legislation that directly benefits the common man for the sustenance of life with dignity, minimum wage is one such social legislation. Canada provides assurance and access to minimum wage at federal, provincial, and other special levels based on regulations, inflation and Consumer Price Index. Part III of the Canadian labour code lays down labour standards which is concerned with protecting the interest of the federal workforce providing them legally enforceable minimum wages, absolutely entitling the workers to a particular minimum wage rate.

Frequently Asked Questions (FAQs)

What is the Minimum Wage provided to International Students who work in Canada while pursuing education?

An international student pursuing education in Canada at a Designated Learning Institution (DLI) is eligible to work part-time up to 20 hours per week while school within session and when it comes to full-time up to 40 hours a week during scheduled school breaks and holidays. This includes spring break, winter break, or summer holidays. Approximately on average, an international student engaging in part-time work can earn between $800 CAD to $1,500 CAD every month and students working full-time may earn between $1,600 CAD to $3,000 CAD per month.

What is the basic salary or pay in Canada?

Canadian salary for employees across the country at an average based on data as per January 2020 was $1,050.59/week. This implies that the yearly average wage for persons working full-time is just above $54,630 per year.

References

Books

Minimum wages by David Neumark and William L. Wascher
Minimum wages in Canada: Theory, evidence and policy by Morley Gunderson

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Section 190 CrPC

By

Rachit Garg

-

November 16, 2022

0

This article is written by Kishita Gupta, a Unitedworld School of Law, Karnavati University, Gandhinagar, graduate. The article discusses Section 190 of the Criminal Procedure Code, 1973.

It has been published by Rachit Garg.

Table of Contents

Introduction

Have you ever wondered what would happen if the process of arrest had not been properly defined in the law books? Well, I believe it would only lead to chaos in the criminal justice system. Thus, in India, the Criminal Procedure Code defines all the procedures to be followed in cases of criminal justice. One of these procedures involves the magistrate having the authority to take cognizance of criminal cases under Section 190 of the Criminal Procedure Code, 1973. In this article, the author will be discussing Section 190 of the CrPC.

What is meant by taking cognizance

The CrPC and other Acts do not define or explain what is meant when a competent magistrate “taking cognizance” of an offence. However, through well-established legal declarations, the phrase has come to have a clear connotation.

When referring to a court or a judge, the phrase “taking cognizance” actually means “become aware of,” but it also means “to take notice of judicially.” The phrase has no esoteric meaning in criminal law. In actuality, “taking cognizance” refers to being informed of an offence in order to begin legal action under Section 190 of the Criminal Procedure Code.

The term “cognizance” refers to the moment the court first takes judicial notice of an offence by not only considering the information in the police report or complaint but also moving forward, as further described in Chapter XIV of the Criminal Procedure Code. Taking cognizance is either taking action to determine whether there is cause to start a legal process or having the magistrate start a legal process against an offender.

Taking cognizance happens when a magistrate examines the alleged commission of an offence with a critical eye in order to take further action under Sections 200, 202, or 204 of the CrPC toward an investigation and trial. However, the magistrate’s use of judgement in order to take any other action, such as ordering a police investigation or issuing a search warrant, cannot be interpreted as taking cognizance of the offence.

Simply put, taking judicial notice of the offence for an investigation or trial is known as “cognizance.” There is no formal activity involved in taking cognizance.

For a trial to be legitimate, taking cognizance is a requirement or condition prior. An offence is taken into cognizance, not an offender. So, according to Section 190 of the Criminal Procedure Code, the magistrate is considered to have “taken cognizance” whenever he becomes fully informed of the charges presented therein and decides to move forward with the investigation or trial of the offence.

What is Section 190 CrPC

Section 190 discusses the cognizance of offences by magistrates.

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence–

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the Second Class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

Who takes the arrest decision

In accordance with the Code of Criminal Procedure, 1973, there are two different types of arrests: those performed with an arrest warrant and those made without one. A warrant of arrest is a written document that a magistrate issues and signs. It is addressed to a police officer or another person specifically identified and instructs him to make an arrest of the individual mentioned therein, who is charged with a crime.

Thus, it will become clear that the Code’s proposed arrest judgments are made either by court officers or by others. Added Wayne R. LaFave:

In a criminal justice system, it is typically thought that judicial involvement in decision-making is desirable to ensure a fair balance between the interests of society and the individual. It is believed that a “disinterested determination” made by a “neutral and detached” judicial office will best serve this balancing of interests.

At the time of the arrest, it is frequently believed that the police should provide the evidence to the magistrate, who is not involved in the competitive process of locating criminals and ordering their arrest if there is no immediate need for action.

The law as it stands today does not allow a judicial magistrate to issue a warrant of arrest in situations where an immediate arrest is not required and there is sufficient time for the police to approach the judicial magistrate for a warrant of arrest, regardless of how proper and desirable it may be to have the arrest decision made by a judicial magistrate. Only after taking cognizance of an offence can the magistrate issue a process, such as a summons or an arrest warrant.

Only after receiving a complaint of the facts constituting an offence, receiving a police report of those facts, receiving information from a source other than a police officer, and having knowledge of the offence himself are any of these grounds for taking cognizance of an offence.

Therefore, it is evident that a judicial judge is not permitted to issue an arrest warrant while conducting an investigation or prior to declaring an offence to have occurred.

The Law Commission of India’s opinion in its 37th Report, which was given in this regard, is quite relevant. The Commission made a note that, prior to issuing a warrant, an offence must be taken into cognizance. Contrary provisions, which are typically found in special statutes, may exist. However, in the absence of such unique provisions, the Code’s structure appears to envision cognizance as a step before the magistrate issues a warrant.

In one of its cases, the Court observed that it regretted that, with the utmost respect, it was unable to agree with the position that a magistrate could issue a warrant [for the arrest of the person who could be detained without a warrant under Section 41] without taking cognizance. It is aware that there is a ruling to the contrary [Ram Narain Singh v. A. Sen (1958)].

Furthermore, although Section 41′s language, “Any police officer may arrest any person without an order from a magistrate and without a warrant,” suggests that a police officer has some discretion in deciding whether to make an arrest in cases covered by Section 41, this discretion is illusory when one considers Sections 23 and 29 of the Police Act of 1861.

It would be unreasonable to expect a police officer to approach a minister to acquire an arrest warrant prior to making an arrest for any of the offences listed in Section 41 in these circumstances. Therefore, it is recommended that the Code of Criminal Procedure be amended to include a clear provision allowing judicial magistrates to issue arrest warrants prior to taking cognizance of an offence and in circumstances covered by Section 41. As part of this clause, police officers should be instructed not to make an arrest without a warrant unless it is absolutely required due to the circumstances.

Analysis of the magistrate’s power under Section 190 CrPC

The modes of taking cognizance are outlined in Section 190(1) a, b, and c of the CrPC.

The Magistrate has taken cognizance of the offence upon receiving a complaint pursuant to Section 190(1)(a) of the CrPC when he applies his mind for the purposes of proceeding under Section 200 and the subsequent Sections of the CrPC.

Similarly to this, it is acceptable to presume that the Magistrate has taken cognizance when, after receiving a complaint, the complainant is examined to see whether the claims mentioned in the complaint are true or sufficient, or whether further action has to be taken.

However, the purpose of the inquiry or investigation allowed under Section 202 of the CrPC is solely to allow the magistrate to ascertain if the claim contained in the complaint is true or false in order to decide whether or not the process should be issued. This investigation or trial happens after the stage of cognizance.

The Magistrate may immediately issue process if, after reading the complaint, he determines that the accusations therein show a cognizable offence. He may order an investigation under Section 156(3) of the CrPC if he does not immediately take note of the offence. By taking such a step, the Magistrate is spared from spending his valuable time by looking into a subject. A magistrate can therefore choose to order a police inquiry as an alternative to taking cognizance of the offence.

If he requests a police investigation, he is not required to have the complainant put under oath. This is due to the fact that he will not recognise the offence within. After receiving the police report, which contains further crucial case details, the magistrate may very well decide to take cognizance.

He cannot be regarded as having taken cognizance of the offence if he is directing a police investigation under Section 156(3) CrPC. In such a case, the magistrate will only take cognizance after reviewing the police report. The magistrate may use the forthwith issue process and take cognizance of the offence under Section 190(1)(b) upon receiving the police report following the conclusion of the inquiry. According to Section 190 (1)(b), a magistrate may issue a summons even if the police report is a refer report, which signifies that the report contains no evidence supporting the case. In this situation, he is not required to follow the process outlined in Sections 200 and 202.

According to Section 190(1)(c), the magistrate may declare any offence to have occurred upon learning of it from a source other than a police officer (even if that source is not personally affected by the offence) or from his own knowledge. This clause gives a magistrate the authority to prosecute an offence if he is aware of it, even if there is no complaint or police report in front of him.

Depending on the specifics of the case, the magistrate may or may not have taken cognizance of the offence. It comprises the method of starting the case and the type of initial steps the magistrate undertook.

Taking cognizance is optional

Even though the facts asserted in the complaint reveal the commission of an offence, a magistrate is not required to take cognizance when he receives the complaint. The phrase “may take cognizance” makes this obvious. The term “may” allows the magistrate considerable latitude to decide how to proceed.

When the magistrate applies his judicial judgement to the details in a complaint, a police report, or information obtained from any individual reporting an offence, cognizance is taken.

The court will then properly analyse the materials presented to it before issuing any necessary orders. It occurs when the magistrate decides to press charges against the criminal against whom a strong case has been produced in the first instance. The issuance of the process only occurs after taking notice of the offence; taking cognizance of an offence does not equate to the issuance of the process. A magistrate must be considered to have taken cognizance of the offences listed in the complaint when he exercises his discretion to issue a process.

The magistrate may order the police to register an FIR in accordance with the law in order to allow the police to begin an investigation. If the complaint reveals a cognizable offence, the officer in charge of the police station must nonetheless file the FIR, even if the magistrate does not direct them to. The police officer might take additional actions that are planned for in Chapter XII of the Code after filing an FIR.

Power on receiving a police report

Upon receiving a complaint or a police report, the magistrate has the authority to:

Reject the police report and request an investigation under Section 202 of the CrPC before taking any further action under Section 203 of the CrPC.
If he disagrees with the police report, immediately take cognizance under Section 190.
Submit an enquiry as per Section 200 of the CrPC.
To proceed with recording the statements made under oath by the complainant and the present witnesses in accordance with Section 200 of the CrPC and to take cognizance of the offence based on the complaint that was filed against him.

In other words, the Magistrate’s ability to take proceedings under Sections 200, 203, and 204 of the CrPC based on the initial complaint itself is unaffected by the fact that he ordered an inquiry and received a police report. The poor police investigation or the report therefrom cannot impede a magistrate’s ability to take cognizance. If a magistrate is satisfied with the pertinent evidence presented before him regarding the offence, he may take cognizance.

Various judicial pronouncements on Section 190 CrPC

Mehmood Ul Rehman v. Khazir Mohammad Tunda (2015)

In this case, the Supreme Court observed that the magistrate benefits from a police report under Section 190(1)(b) of the Criminal Procedure Code, and he has knowledge of the commission of an offence under Section 190(1)(c). However, he simply has a complaint before him per Section 190(1)(a) of the CrPC. As a result, the Code states that the magistrate may exercise his or her authority to take cognizance after receiving “a complaint of circumstances which constitute such offence.” Therefore, the Magistrate shall not take cognizance under Section 190(1)(a) of the Cr.P.C. if the complaint does not appear to indicate the commission of any offence. The complaint should be flatly dismissed.

State of Manipur v. Miss Ranjana Manohermayum (2022)

It was observed by the Manipur High Court in the case of State of Manipur v. Miss Ranjana Manohermayum (2022) that according to Section 190 of the Criminal Procedure Code, a magistrate may take cognizance of any offence either after receiving a complaint describing the facts that constitute the offence, after receiving a police report of those facts, after receiving information from a source other than a police officer, or after having knowledge that the offence has been committed. The “police report” mentioned in this clause is the “final report” that the police would produce following their investigation in accordance with Section 173(2) of the Cr.P.C.

Nahar Singh v. State of Uttar Pradesh (2022)

With regard to Section 190(1)(b) CrPC, in the case of Nahar Singh v. State of Uttar Pradesh (2022), the issue before the Supreme Court was whether a magistrate has the authority to take cognizance of an offence based on a police report and then summon someone who is not named as an accused in the FIR or police report. The Supreme Court ruled that Section 190 of the Code of Criminal Procedure, 1973 (CrPC) gives a magistrate the authority to issue summonses against individuals who have not been named as suspects in the chargesheet or charged in the First Information Report (FIR).

It just grants the magistrate the power to take cognizance of the offence, and then it gives the magistrate the power to look for and summon any more accused parties than the ones specified in the FIR and chargesheet.

The Court also observed that upon taking cognizance of an offence, the Magistrate must review the evidence at his disposal to determine whether any more parties to the offence, in addition to those sent up by the police, need to be summoned. These details don’t have to be limited to the F.I.R., charge sheet, or police record. A statement made in accordance with Section 164 of the Code might also be taken into account.

V. Lakshmi v. The Government of Tamil Nadu (2011)

In this case, the Madras High Court observed that when a report is submitted to a qualified criminal court by the investigating authority in a case involving a police investigation, which is a legal executive duty, the investigation process is complete. Once the criminal complaint investigation is finished and a complaint, information, or report is filed with the magistrate, the court, in accordance with Section 190 of the Code of Criminal Procedure, 1973, takes cognizance of the offence based on a preliminary finding that an offence has been committed. Process is then issued to the accused, followed by the beginning of the procedures before the magistrate, the framing of the court’s accusations, and the start of the trial, which eventually results in the decision.

Conclusion

The term “taking cognizance” is not defined under the CrPC. In reality, taking cognizance does not require any formal action on the part of the court or magistrate because cognizance can be deemed to have been taken as soon as a magistrate applies his thoughts to the alleged conduct of an offence for the purpose of taking further action under CrPC. Under Sections 195 to 199 of the CrPC, the magistrate’s authority to take cognizance has been subject to some restrictions. He has the authority to declare an offence committed, but he cannot look into or try the matter. Therefore, the phase of taking cognizance is crucial to the rule of law and serves as a key ‘judicial check’ on the authority of the police.

Frequently Asked Question (FAQs)

What is the difference between Section 190 and Section 200 of CrPC?

In the grand scheme of things under the Cr.P.C., while the right to take cognizance falls under Section 190 of the Cr.P.C., the power to question the complainant under oath (and, if applicable, additional witnesses) for the purpose of verifying the complaint is spelled forth in Section 200 of the Cr.P.C. Therefore, both of these parts are related for the purposes of a complaint case. They outline various phases or steps for a complaint case. As a result, Sections 190 and 200 of the CrPC are both pertinent in the context of a complaint matter.

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Criminal intimidation

By

Rachit Garg

-

November 16, 2022

0

This article is written by Shraddha Jain, a student of the Institute of Law, Nirma University, Ahmedabad. This article seeks to elucidate the concept of criminal intimidation as mentioned under Section 503 IPC. The article covers essential ingredients, analysis, punishment and various judgements on the topic of criminal intimidation and summarises all the related concepts like anonymous criminal intimidation, insult to cause the breach of the peace, the object of divine displeasure, the difference between extortion and criminal intimidation, etc.

It has been published by Rachit Garg.

Table of Contents

Introduction

Many of you might have faced a situation where you committed an act that you were not legally bound to do. You only did that act because someone threatened you to do otherwise he or she will cause harm to your reputation, body, or property. But how many of you know that this act of threatening is an offence under the Indian Penal Code, 1860 (IPC)? Yes! You have heard it right. This is an offence of criminal intimidation that is provided under Section 503 of the IPC. According to this Section, criminal intimidation occurs when an accused threatens the victim with damage to his reputation, body, or property, or another individual in whom he has a vested interest. The punishment for the offence is outlined in Section 506 of the IPC.

The goal of the accused in committing this crime is to force the victim to perform something illegal for the profit or advantage of the accused. We’ll learn more details about this offence later in the article. We will be dealing with the essential ingredients required for the commission of this offence, various provisions of punishment for the commission of such an offence; different judgements, etc.

What is criminal intimidation

According to the Oxford dictionary, the literal definition of intimidation is “to intimidate someone in order that the other person acts as we desire.”

Criminal intimidation is defined in Section 503 of the IPC as an offence committed in which an individual endangers or threatens another with harm to his person, reputation, or property in order to compel the other individual to do an act that he is not bound by law to perform. The intimidator is the person who endangers the other.

The accused may use words or gestures to intimidate and harm the victim’s body, property, reputation, or other members of the family.

Illustration: A threatens to burn down B’s house in order to persuade him not to file a civil suit. A has committed the offence of criminal intimidation. In this situation, A has threatened B that he will cause damage to the property of B and subsequently asked him to omit to do the certain act (to file a civil suit) which he is legally bound to do therefore A will be guilty of the offence of criminal intimidation.

Essentials of criminal intimidation

The landmark case of Narender Kumar & Ors v. State (2012) established the following elements as necessary to constitute an offence of criminal intimidation:

The threat of injury to the victim

Section 44 of the IPC defines injury as any damage whatsoever unlawfully induced to any individual, in body, mind, reputation, or property.

Threatening can be done in the following ways:

to cause injury to a person;
to cause injury to his reputation;
to cause injury to his property;
to cause injury to another person or the reputation of anybody in whom the victim is interested.

Intimidation to cause bodily harm to another

Criminal intimidation refers to any threat or danger that would cause bodily harm to an individual. Physical damage alone must be taken into account for this Section, and mental or emotional trauma must be avoided. Moreover, the danger has to be specific in nature and clearly communicated to the opposing party.

Intimidation to cause damage to his reputation

The term ‘reputation’ has been used in the context of goodwill because it will diminish a person’s value in the eyes of the community. As a result, any effort or danger to cause harm to goodwill falls under the purview of criminal intimidation.

Threatens to cause harm to his property

The property or wealth of an individual is the outcome of his tireless hard work and is extremely valuable to him. Therefore, any danger or warning that could cause significant damage to his property is also regarded as an offence under Section 503 of the IPC. The word ‘property’ encompasses both physical and intangible property. Joint-holding properties can also come under the ambit of this Section.

Threatening to inflict harm to any other individual or his reputation in which the original person’s interest is involved

The definition of criminal intimidation is broadened by this provision. This provision broadened the definition of criminal intimidation. This provision makes threats or warnings of threats an offence if they are intended to harm someone in whom they have a personal interest. In layman’s terms, it refers to any warning or threat given to his son, daughter, wife, or any other close family member. Moreover, the explanation mentioned in Section 503 asserts that a threat to harm a dead person’s reputation is also protected by this Section.

Intention at the time of the threat

The threat should be made with the intention of:

causing alerts to an individual; or
causing an individual to perform an act that he is not legally required to perform in order to prevent the implementation of such a threat; or
causing an individual to omit to perform any act which that individual is legally assigned to do in order to prevent the implementation of such a threat.

Supreme Court of India defined the nature of criminal intimidation in the leading case of Romesh Chandra Arora v. State ❲1960❳. The Court concluded that criminal intimidation is said to be committed not only when a threat has been imposed but also when that threat causes a mere warning to an individual.

Threatening to cause alarm to an individual

This provision requires that there be an intent to cause alarm to an individual who is threatened. The word ‘alarm’ was established in the case of Amulya Kumar Behera v. Nabaghana Behera Alias Nabina (1995), in which the Orissa High Court determined that it is similar to words such as ‘fear’ or ‘distress’.

Threatening someone to do something he is not legally obligated to do

According to this clause, if a person endangers someone with force to do something that he does not want to do lawfully, he will be charged with criminal intimidation.

In the case of Nand Kishore v. Emperor (1927), a butcher was threatened by some people that if he engaged in the trading of beef, he would be sent to prison, and it would be difficult for him to live in society. During that time, the trading of beef was legal. Therefore, the Allahabad High Court ruled that this threat would be construed as criminal intimidation.

Threatening an individual to omit to perform any act that he is lawfully required to do

If anyone knowingly and willingly threatens or attempts to threaten anyone to refrain from performing any act that he is legally permitted to perform, he will be charged with criminal intimidation.

An analysis of criminal intimidation

As we have seen, the main components of Section 503 are threats and the intent to cause harm. The threat must be communicated to the victim. The threat can be communicated verbally, in writing, or even through expressions. Besides that, if there isn’t any intent to cause harm, the threat is insufficient. This requirement of criminal intimidation might even be met if the threat frightens the complainant. As a result, a threat to induce actual physical real physical harm is unnecessary.

An intentional insult intended to cause a breach of peace

Section 504 of the IPC allows for another type of intimidation. Unlike Section 503, in this provision, no purpose of causing damage is required, and no threat is required.

Section 504 applies when someone intentionally insults and instigates him (for example, by using offensive language). The offender must be aware that his instigation may induce the victim to disrupt public order or commit an offence.

For example, if the accused abused the victim in a way that seriously impacted the modesty of his mother or sister, such conduct is punishable under IPC Section 504.

This is punishable by imprisonment for up to two years, with or without a fine.

Punishment for criminal intimidation

Under Section 506 of the IPC, the punishments for the offence of criminal intimidation are as follows:

Simple criminal intimidation

The first part of this Section provides that if a person is convicted of the offence of criminal intimidation, then their penalty would be up to two years of imprisonment, a fine, or both. The offence that falls under this part is non-cognizable, bailable, compoundable, and triable by any magistrate.

Hurt, grievous hurt or death of the person

The second part of this Section provides that if the threat of the intimidator causes hurt, grievous hurt, or death to the person who is threatened, or damage to any property by fire, he or she will have to face a maximum of seven years imprisonment, a fine, or both. The offences under this part are non-compoundable and can be tried by a magistrate of the first class.

The threat is to impute chastity to women

When a person threatens a woman with unchastity, the punishment has to be either imprisonment of any kind for a term that can last up to seven years, or a fine, or both.

Is probation available for those charged under Section 506 IPC

The Supreme Court has given two different responses to the question of whether an individual charged with criminal intimidation and punished under Section 506 of the IPC, is entitled to probation.

In Ramnaresh Pandey v. State of Madhya Pradesh (1973), the accused was charged with intimidating a female doctor, for which he was punished by the trial court under Section 506 of Part II of the IPC and sentenced to one year on probation (under Section 4 of the Probation of Offenders Act 1958). The learned Additional Session Judge reversed the trial judge’s judgement. This sentence was upheld by the High Court. The Supreme Court, on the other hand, asserted that the appellate court shouldn’t have reversed the trial court’s order of probation. The Supreme Court overturned the appellate court’s order because neither the appellate court nor the High Court provided any justification for overturning the trial court’s order of probation based on good behaviour.

In complete contradiction, in Siyasaran v. State of Madhya Pradesh (2019), the Supreme Court ruled that the accused, who had previously been found guilty of attacking a doctor by punching him in the face, causing a misplaced tooth, shouldn’t have had his act tolerated. The trial court convicted him under Sections 333 and 506 (Part II) of the IPC and sentenced him to three and two years in prison, respectively, which the High Court upheld. The Supreme Court denied the accused’s request for probation on the basis of good behaviour. However, the court ruled that crimes against doctors and staff in healthcare facilities are not allowed because it would harm the self-esteem of all doctors. As a result, the conviction was upheld by the court.

Commission of criminal intimidation by an anonymous communication

This is a more serious or agitated type of criminal intimidation, punishable under Section 507 of the IPC. Except for one element, the rest of the elements of criminal intimidation are exactly the same under this offence. The distinguishing feature of this offence is that the criminal intimidator commits the offence anonymously without revealing his identity. This offence is punishable by imprisonment for a term of up to two years, a fine, or both. It should be noted that this imprisonment is in addition to the usual punishment for criminal intimidation, which is provided under Section 506 of the IPC.

The nature of the offence under Section 507 of the IPC is bailable, non-cognizable, and non-compoundable, triable by a first-class magistrate.

For example, suppose the daughter of a person named Ram is abducted by certain goons. The goons called Mr. Ram and demanded a ransom of Rs 25 lakh without revealing their identities. They also threatened Mr. Ram that they would kill his daughter if he did not make a payment on time. This is an offence covered by this Section.

Act caused by inducing a person to believe that he will be rendered an object of divine displeasure

According to Section 508 of the IPC, when an accused person voluntarily causes or attempts to cause any person to do something that he is not legally bound to do or to omit to do something that he is legally entitled to do, and the accused person induces such a person to believe that he or any person in whom he is interested will become an object of divine displeasure if he does not do a particular thing, the accused person is guilty.

If a person violates the law in a specific way, he or she faces a maximum of one year in prison, a fine, or both.

Furthermore, the offence under this Section can be categorised as non-cognizable, bailable, and compoundable by the individual against whom the offence was committed, and triable by any magistrate.

Difference between extortion and criminal intimidation

Extortion and criminal intimidation are frequently confused in common usage. The distinction was outlined in the case of Romesh Chandra Arora v. State ❲1960❳.

In this case, the appellant was found guilty of criminal intimidation under Section 506 on the grounds that he took indecent images of a girl and was claiming that he loved her. He also threatened her father with the publication of the pictures and letters written to him with the intention of extracting money from him. The accused was found guilty under Section 506 of the IPC by both the trial and appellate courts. The appellant contended that his conviction for criminal intimidation under Section 506 of the IPC was incorrect. Rather, the appellant might have been found guilty of extortion under Sections 384 and 511 of the IPC. The Supreme Court rejected his appeal. The Court stated that although the accused’s main objective was not only to cause alarm but also to get her father to grant him a ‘ransom amount’ to make sure that he did not carry through on his threat to make the damaging pictures public. Therefore, the crime committed might be classified as extortion under Section 383 of the IPC. But the court said that in this case, two courts agreed that the offence was constituted as criminal intimidation. As a result, the Supreme Court declined to overturn the judgement and determined that no bias had been caused towards the accused. The Court also held that when two separate elements of an act are treated separately, a specific action might be said to fall under two broad definitions of an offence.

Some basic differences between extortion and criminal intimidation are as follows:

Points of differences	Extortion	Criminal intimidation
Sections of IPC	It is defined in Section 383 of the IPC.	It is defined in Section 503 of the IPC.
Definition	Extortion means that an individual places another individual in a state of apprehension or threat to injure him or dishonestly persuade him so that he can deliver the property or any other valuable security to another person.	This offence is committed when someone poses a threat to another with harm to his person, property, or reputation, and the other person is forced to perform or omit something he is not legally required to do or omit.
Purpose	The main purpose of extortion is to obtain money or any other valuable security.	The main purpose of criminal intimidation is to threaten someone to do any act that he is not bound to do or to induce someone not to do anything that he is legally bound to do.
Force used	In extortion, both actual and constructive force are used.	In criminal intimidation, only constructive force is used.
Delivery of the property	Delivery of the property is essential under this offence.	There is no delivery of property, money, or valuable security in criminal intimidation.
Punishment for the offence	The maximum punishment for extortion is 3 years.	The maximum punishment for criminal intimidation is 2 years.

Social media : a new platform for criminal intimidation

Social media has created a new world order. When an individual might not say anything in person, he may say something through the veils of online platforms. With the emergence of social media sites, offenders now have a new system to intimidate and threaten someone. They no longer have to intimidate their victims physically; they can accomplish this with a single click. Furthermore, such threats can be forwarded anonymously, providing the perpetrators with an advantage.

Section 503 of the IPC also addresses criminal intimidation in instances in which the offender conveys his threat via an online platform. And thus, Section 503 of the IPC requires that the danger should be conveyed to the individual intimidated, irrespective of the medium, and thus, even if a threat is produced through social sites, it should also be considered criminal intimidation within the scope of Section 503, and when the offender transmits the threat anonymously or attempts to conceal his identity while transmitting the threat, he will also be liable under Section 507 of the IPC. However, there is a potential problem in applying Section 503 in instances in which the threat was made online. Section 503 requires that the threat be formed with the aim of communicating it to the individual intimidated. However, on social media platforms, communication meant for a small group of people can reach a large number. So, whenever the threat reaches the person threatened but the accused has no intention of communicating the threat to the threatened person, the statute no longer perceives it as criminal intimidation.

Threats and intimidation are all too frequent on social media. It is shocking to note that such threats have even prompted people to attempt or commit suicide. There have been instances where the accused in criminal proceedings have threatened victims into withdrawing their complaints using online mediums. These incidents endanger not only the victims of the crime but also the very objectives of the criminal justice system. Given the gravity of the circumstance, it is critical that the law prevent this from becoming the new normal.

Judicial pronouncements on criminal intimidation

Doraswamy Iyer v. King-Emperor (1924)

In the case of Doraswamy Ayyar v. King-Emperor (1924), the Madras High Court held that the nature of a threat should be realistic in order to perform or cause harm to the victim. It was observed that the threat of divine punishment would not be taken into account under Section 503 of the IPC.

Rajinder Datt v. State of Haryana (1992)

In the case of Rajinder Datt v. State of Haryana (1992), it was stated that mere outbursts of the accused during the attack indicating that he intended to kill the victim were insufficient to hold that the act would fall under the ambit of Section 506 of the IPC because it could not be said that he was involved in criminal intimidation of the victim with the intent to cause death or grievous harm. This is especially applicable in situations where the damages are not severe and do not affect any vital parts of the victim’s body.

Shri Vasant Waman Pradhan v. Dattatraya Vithal Salvi (2004)

The Bombay High Court declared in the case of Shri Vasant Waman Pradhan v. Dattatraya Vithal Salvi (2004) that mens rea is the core of criminal intimidation. Mens rea refers to malafide intentions to do something. The intention must be determined based on the facts and situations associated with the incident.

Manik Taneja & Anr v. State of Karnataka (2015)

In the case of Manik Taneja & Anr v. State of Karnataka (2015), the appellant was involved in a car accident with an auto-rickshaw. The appellant paid the compensation for the treatment of the passenger of the auto-rickshaw after learning that he had been wounded; the passenger was later taken to a hospital, and no complaint was filed.

Even after that, the woman was summoned to the police station and allegedly threatened by officers. Feeling incensed, she complained on the Bangalore traffic police’s Facebook page regarding the cruel treatment and abusive behaviour of the police. The police lodged an FIR and registered a lawsuit against the appellant under Section 506 of the IPC. The Bench determined that there had been no evidence of criminal intimidation in this case. The Supreme Court ruled that posting written statements about unfair police treatment of an individual on their Facebook page did not constitute criminal intimidation.

Vikram Johar v. State of Uttar Pradesh (2019)

In the case of Vikram Johar v. State of Uttar Pradesh (2019), the respondent reached the plaintiff’s residence with 2-3 other random people, among whom one was carrying a pistol, and abused the plaintiff in filthy language and tried to attack him; when some neighbours reached, the respondent and the other people surrounding him ran away.

The Supreme Court determined that the aforementioned accusation, if taken at face value, does not meet the requirements of Section 504 and Section 506 of the IPC. The deliberate insult should be severe enough to cause an individual to break the public peace or commit another crime. The mere act of abusing someone in filthy or dirty language does not meet the requirements for the offence of criminal intimidation under Section 503 of the IPC.

Limitation of the provision of criminal intimidation

Chapter XXII of the IPC, which contains the provision of criminal intimidation, lags far behind societal needs. With a changing and developing society, the law must also evolve. The notion of criminal intimidation is extremely broad. There is no explicit provision for being intimidated to commit suicide as a result of a threat, and there is no specific provision for intimidation through online platforms. As a result, it must be acknowledged that there is an immediate requirement for more inclusive provisions, as well as punishments that have societal value for criminal intimidation.

Conclusion

The primary goal of the IPC is to establish a legal framework for cases to be tried and punishments to be imposed. It guarantees that justice is served. It is frequently used to describe various offences known to humanity. One of the pillars of the IPC is the crime of criminal intimidation. It is a type of preventive punishment in which the accused is penalised for intimidating rather than committing the crime. It makes no difference whether or not the actual crime happened.

A mere threat, on the other hand, does not constitute criminal intimidation; it must be made with the intent of alarming the individual threatened. It is irrelevant whether it has frightened the recipient of the threat; what is needed is the accused’s purpose to do so.

Frequently Asked Questions (FAQs)

How is criminal intimidation established?

If the accused uses threats to alarm the victim, this proves criminal intimidation.

Can an accused be arrested for the offence of criminal intimidation?

Yes, criminal intimidation is an arrestable offence.

What exactly is a legal threat?

A legal threat is a declaration made by one party that it intends to take legal proceedings against another party, usually followed by a demand that the opposing party take the action demanded by the first party or stop doing or continuing behaviour that the demanding party objects to.

References

https://www.nbcnews.com/news/us-news/social-media-contributing-rising-teen-suicide-rate-n812426
https://articles.manupatra.com/article-details/Social-Media-Criminal-Intimidation-and-the-need-for-Change
https://blog.ipleaders.in/criminal-intimidation-insult-and-annoyance-under-the-indian-penal-code-1860/
https://www.toppr.com/guides/legal-aptitude/indian-penal-code/criminal-intimidation-insult-and-annoyance/
https://www.livelaw.in/top-stories/abusing-a-person-is-not-criminal-intimidation-144562?infinitescroll=1
Gaur, K. D. Textbook on the Indian Penal Code. Universal Law Publishers, 9th edition.
Pillai, PSA Criminal law. Lexis Nexis Publishers, 12th edition.

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iPleaders

Section 309 CrPC

Introduction

What does Section 309 CrPC say

Section 309(1) CrPC

Illegality of detention order

Section 309(2) CrPC

Explanation of Section 309

Scope and objective of Section 309 CrPC

Applicability of the section

Adjournment of cases for petty reasons

A procedure that did not guarantee a reasonably quick trial would violate Article 21

Meaning of the word remand and its relevance here

Difference between Section 167 and 309 CrPC

Key judicial pronouncements on Section 309 CrPC

Vinod Kumar v. State of Punjab (2015)

Akil @ Javed v. State of NCT of Delhi (2013)

Mohammad Daud Alias Mohd. Saleem v. Superintendent of District Jail (1992)

Landmark judgments

Conclusion

References

Section 205 CrPC, 1973

Introduction

Provisions under which the accused can seek exemption from personal appearance

Difference between Section 205 and 317 CrPC

Tabular representation of difference between Section 205 and 317 of the CrPC

Section 205 CrPC: a detailed analysis

Scope and object of Section 205 CrPC

Scope of Section 205 CrPC

Object of Section 205 CrPC

Is the presence of the accused at the time of application under 205 CrPC mandatory

Can an accused be granted exemption from personal appearance under Section 205 CrPC

Conditions imposed for grant of exemption under Section 205

Factors considered by the court for grant of exemptions

Situations where a magistrate may implement Section 205

Precautions need to be taken by the magistrate while granting exemption under Section 205 CrPC

Approaches to exemption under Section 205 CrPC

Liberal or generous approach to exemption

Strict approach

Judicial pronouncements of Section 205 CrPC

Conclusion

FAQs on Section 205, CrPC

Can exemption from personal appearance under Section 205 be termed as ‘total exemption’ from the whole trial?

What happens if the accused fails to appear during the trial in person if needed?

References

National Food Security Act, 2013

Introduction

Concept and evolution of food security

Dimensions of food security

Food security in India

Food security and governance

Public distribution system

Integrated Child Development Scheme (ICDS)

Food for work

International recognition of the right to food

Right to food in India

The National Food Security Act, 2013 : an overview

Transformation of welfare benefits into legal entitlements

Right to receive food grains

Nutritional support for women and children

Food security allowance

Identification of eligible households by state governments

Reforms in the targeted public distribution system

Monitoring bodies

Penalties

Major issues in implementation

Problems in targeting

Inadequate storage capacity

Poor infrastructure of Anganwadi centers

Corruption

Conclusion

FAQs

What are the NFSA’s entitlements for food grains?

What are the prices for the food grains that will be provided to the eligible beneficiaries?

How does the National Food Security Act empower women?

References

Place of Worship Act, 1991

Introduction

History of the Place of Worship Act

Features of the Place of Worship Act