Medical Termination of Pregnancy Act, 1971(MTP Act)
It allows medical termination of pregnancy for women. In other words, it allows abortion. It was passed to make the process of abortion safer and legal. Earlier, the medical termination of pregnancy was allowed up to 20 weeks, only for married women in case of failure of contraceptive method or device. However, now, under the Medical Termination of Pregnancy Amendment Act,2021 unmarried women are also covered. Moreover, 20 weeks period is extended to 24 weeks but only for special categories of women –
Survivors of sexual assault or rape or incest
Minors
Differently-abled women
Mentally ill women
Change of marital status during pregnancy
Women with pregnancy in humanitarian settings or disaster or emergency
How does termination take place under the Medical Termination of Pregnancy Amendment Act, 2021?
The opinion of one Registered Medical Practitioner is required for the termination of pregnancy up to 20 weeks of the gestation period (Gestation is the foetal development period from the time of conception till birth.)
In case of termination of pregnancy at 20-24 weeks of gestation, the opinion of two Registered Medical practitioners is required.
The Act does not allow medical termination of pregnancy beyond 24 weeks of gestation. It only allows it in case the Medical Board (consisting of a Gynaecologist, a Paediatrician, a Radiologist, and other members notified by the State Government or Union Territories) diagnoses substantial foetal abnormalities.
Rationale behind the Medical Termination of Pregnancy Act
There is a direct nexus of this Act with Article 21 and Article 14 of The Constitution of India. Article 21 provides for the right to life and personal liberty which is subject to the procedure established by law which has to be reasonable, just, fair, and non-arbitrary. Right to privacy was recognized as an implied fundamental right by the Hon’ble Supreme Court of India in Justice K.S Puttaswamy (Retd.) V. Union of India and Others (2017) under Article 21 which includes individual autonomy, and reproductive choice of women. It is the woman who has to carry a child in her womb for 9 months and also has the responsibility to raise the child. Moreover, there are other societal imputed responsibilities on a woman being a mother. It is expected that it is only a mother who should take the responsibility of taking care of the child be it his/her food, bathing etc. A woman is not a chattel of her husband or any other person for that matter as stated by the Hon’ble Supreme Court in Joseph Shine V. Union of India. She can take rational decisions on her own and does not require anyone else to take decisions on her behalf. This Act specifically provides that if a woman is 18 years or above, her consent is required for termination of pregnancy and if she is below 18 years then the consent of her guardian is required. Hence, the mischief of this Act is very much in line with essential constitutional principles, that is, constitutional morality, equity, justice, a good conscience, reasonableness, non-arbitrariness etc.
This Act aims for a better and progressive society by uplifting and giving confidence to the vulnerable section of society, that is, women. A country can progress only when all the vulnerable sections of society are taken care of and provided with equal rights and opportunities. This Act also ensures the mental and physical health of women by providing safe abortion by a Registered Medical Practitioner.
Why are women still facing hardships when there is a law in favour of them
Section 3(2C) of the Medical Termination Amendment Act,2021 requires every State Government or Union Territory to constitute a Medical Board as discussed above. When a pregnancy exceeds 24 weeks in the case of the Medical Board diagnoses substantial foetal abnormalities, then only there can be medical termination of pregnancy. But, if the State Government or Union Territory has not constituted a Medical Board, in that case, the only recourse a pregnant woman has is to file a writ petition. Why push a pregnant woman from pillar to post? There must not be a delay in case of termination of pregnancy, as it may cause complications. The procedure before termination must be done as soon as possible so that there won’t be any delay and no threat to a woman’s life.
Though the rights have been given to women if there is an obstruction in the enforcement of rights then what is the point of having rights in the first place when they cannot take the benefits of such rights?
Recently, In the case, Xxxxxxxxxx V. Xxxxxxxxxx, Bombay High Court, Division Bench, thirty years old woman(petitioner) who was 25 weeks pregnant moved the Bombay High Court seeking medical termination of pregnancy due to foetal abnormalities. In her sonography reports, it was recorded that the foetus suffers from microcephaly. Microcephaly is a condition where the head is smaller than normal. People with this disorder generally have intellectual disabilities, abnormal facial expressions, poor speech, seizures, and dwarfism. As a result of the Hon’ble High Court’s decision, the Dean of J. J. Hospitals, Mumbai was ordered to form a Medical Board, which would consist of the Dean of the hospital, Head of Gynaecology, Professor, Head of Paediatric/Cardiac Surgeon, Professor and Head of Radiology Department, Professor and Head of Psychology Department, Professor and Head of Neurological Department, as well as any other expert in the field as the Dean deems appropriate to examine the petitioner.
The Maharashtra Government had not constituted a medical board, which is mandatory under MTP Amendment Act,2021. And the Court observed that not constituting a medical board causes hardship to a pregnant woman as it only leaves her with one choice of moving Court. This affects the mental health of the woman and causes a delay in the termination of pregnancy which may create complications in the process as in such cases pregnancy is already exceeding 24 weeks. Therefore, the Hon’ble High Court directed Maharashtra Government to forthwith constitute Medical Boards based on the Amended Act as it also increases the number of petitions filed for such purposes.
Moreover, the Act only extends medical termination of pregnancy up to 24 weeks in some special cases as mentioned above, women who do not fall under that special category still cannot get their pregnancy terminated beyond 20 weeks, so the only option they have is to file a writ petition in either High Court or the Supreme Court.
Recently, in the case, X vs The Principal Secretary, Health & Family Welfare Department Government of NCT of Delhi, the petitioner who was unmarried and 23 weeks pregnant sought interim order in her favour for the grant of termination of pregnancy during the pendency of the writ petition. Her partner refused to marry her, thus, she wanted to terminate the pregnancy as she was non-working, and it would have caused her mental agony by giving birth to a child out of wedlock. But the Delhi High Court refused to grant interim relief as granting interim relief would have amounted to allowing the writ petition itself. Court also stated that it cannot go beyond the statute as the statute only allows termination of pregnancy up to 20 weeks if women do not fall in the special category. An unmarried woman is not specified in the categories of women who are eligible to terminate their pregnancy up to 24 weeks. Therefore, the High Court dismissed the application.
The petitioner moved the Supreme Court seeking termination of her pregnancy as the Delhi High Court dismissed her application. The Supreme Court adopted a purposive interpretation of the MTP Act, it said that after the 2021 amendment the word “married woman” is substituted with “any woman” and the word “husband” with “partner”, this shows clear intent of the parliament to cover unmarried women also. The court also stated that there is a gap in the law, which means a gap between section 3 of the Act and Rule 3B of the MTP Rules. Section 3 also covers unmarried women, whereas Rule 3B excludes them from the special categories of women (including minors, divorcees, widows, rape and sexual assault victims, disabled women, and mentally ill women). There is no basis to deny unmarried women the right to terminate the pregnancy beyond 20 weeks as the distinction between married and unmarried women does not bear a nexus to the basic purpose and object of the Act sought to be achieved by the parliament. When an unmarried woman is denied the right to terminate her pregnancy it results in the violation of her autonomy and right to live a dignified life. The court also stated that the woman’s right to reproductive choice cannot be separated as it is an inseparable part of her liberty. By considering all the above points the Supreme Court granted an interim order allowing the petitioner to terminate her pregnancy.
In this case, only the Supreme Court suggested how they could bring unmarried women at parity with married women under the Act. The court pointed out that by striking down the words “for the purpose of clause a” from Explanation 1 of section 3(2) of the Act, the termination of the pregnancy on grounds of mental anguish can be made applicable to all.
Rule 3B of the MTP Act is violative of Article 14 insofar as it excludes unmarried women and married women who are neither divorcees nor widows. A woman should not be denied medical termination because the right to safe abortion is part of her personal autonomy.
Why obstruct the way of an unmarried woman who wants the termination of her pregnancy by fixing the period to 20 weeks? This will only cause her more mental agony and trauma because it is not easy for a woman to give birth to a child out of wedlock as the whole society look down on her. Indian society is still not enlightened enough to accept an unmarried woman with a child.
Minor girls and abortion
The need of the hour of the state is to protect the right to safe abortion for minor girls. Mature adolescents especially 16 years above having consensual sex must be kept out of criminal liability.
The aim of the MTP Act is access to safe abortion but there is a need to bring harmony between provisions of the Protection of Children from Sexual Offences Act,2012 (POCSO) and the MTP, Act. On the one hand, MTP, Act mandates non-disclosure of the identity of the women and on the other hand, POCSO creates a mandate on doctors to report sexual offences committed against minors otherwise they would attract criminal liability. But teenagers who consensually get into sexual relationships must be protected as it affects their mental and physical health which may result in long-term mental health issues, and which would eventually affect their careers and lives.
These kinds of regulations have led minor pregnant girls to undergo unsafe abortions. The doctors must not get confused between reporting it to the police and conducting medical termination, which means doctors may report it to the police but still can conduct medical termination. POCSO is just making it mandatory to report the sexual assault if takes place with a minor and is not prohibiting the medical termination of pregnancy in such cases.
Moreover, minor girls who are rape victims or want to terminate their pregnancy but whose gestation period is exceeding 24 weeks are not eligible for termination of pregnancy under the MTP Act. This is another drawback of this Act, the only recourse they have is to file a writ petition.
And courts in such cases are allowing medical termination as becoming a mother as a teenager would cause irreparable injury to the mental health of the minor.
Recently, Hon’ble Mr Justice Yashwant Varma in the case of, MS X THROUGH HER LEGAL GUARDIAN v. GOVERNMENT OF NCT OF DELHI & ANR., passed an order allowing a minor sexual assault victim to terminate her pregnancy of 25 weeks. He noted that the Court by invoking extraordinary powers in exceptional cases can allow termination beyond 24 weeks even when the statute does not sanction the same. He further stated “This Court is of the firm opinion that if the petitioner was forced to go through with the pregnancy despite the same having been caused on account of the incident of sexual assault, it would permanently scar her psyche and cause grave and irreparable injury to her mental health. The Court cannot visualize a more egregious invasion of her right to life as guaranteed by Article 21 of the Constitution.” In this case, the medical board did not proceed with the medical termination of pregnancy as the pregnancy was beyond 24 weeks and the MTP Act does not allow the same.
But the court in this case allowed the petition and granted termination of pregnancy to the minor who appeared through her father (her legal guardian). Not allowing the termination of pregnancy to rape victims, especially those who happen to be minors, would not be justified.
Last year in the case of, XXX and Others V. State of Kerala and Others, the Kerala High Court allowed medical termination of pregnancy to a minor girl aged 15, a victim of sexual assault, who was 26 weeks pregnant keeping in mind the various judgments of the Supreme Court where it repeatedly upheld the medical termination of pregnancy where it was found that there existed a threat of grave mental injury to the woman if the child was to be born.
The court also noted that the girl was not at all prepared to deliver the child both mentally as well as physically, therefore, directed the constitution of a medical board. Moreover, the court also directed doctors that if in case the child is born alive despite the attempt at the termination of pregnancy the doctors shall do everything so that he/she develops into a healthy child. And if the family of the petitioner or petitioner is unwilling to take responsibility for the child then the state shall assume full responsibility for the child.
Does making law suffice?
It is obvious that just making a law is not sufficient, yes, it is very much required but it only solves 50% of the problem. What is important is to ensure its implementation. All three organs of the Government must be proactive. Legislature has made the law, now it is the duty of the State Governments and Union territories to ensure the implementation of the law. State Government should be proactive in the implementation of the law so that the beneficiaries can take proper benefit of the law.
The Government should not make women, who are already vulnerable to abuse, suffer as a result of not implementing laws that exist in their favour and that too by the Governments which are their protectors. Lethargy is not expected from the protector and representative of the people. Moreover, the law must not be ambiguous, it must cover all the possibilities and must be in line with the purpose of the Act for which it is being enacted. The MTP Act has still left many issues unanswered which is why many petitions are being filed in various High Courts and the Supreme Court.
Making a half-baked law does not solve any problem but creates more problems which ultimately results in overburdening of courts with lots and lots of petitions. And the hardship which it causes women is beyond imagination.
Though unmarried women are now included under the Act still they are facing many problems when they approach doctors for termination of pregnancy. The doctors ask them to bring their parents or partner with them for the procedure or even deny the abortion on moral grounds. In September 2020, IndiaSpend reported that abortion remains stigmatised in India, even within the medical fraternity. There is a need to educate doctors also, so they won’t deny termination on moral grounds which ultimately causes women more mental agony. And even the amended law gives the final say to doctors and not women. When you hold a professional position like a doctor, a lawyer, or a judge you must not let your preconceived notions come in the way of your duty, you must perform your functions as the holder of such position as per the constitutional principles.
Moreover, the termination can only be done by Registered Medical Practitioners (RMPs) and in rural areas, there is a 70% shortage of Gynaecologists and Obstetricians. Therefore, women in rural areas are still being denied their reproductive as well as statutory rights provided under the MTP Act. There is a need to develop proper medical infrastructure in rural areas too so that women of rural areas can take benefit from their rights. And also the government must be proactive and spread awareness among the women living in rural areas about their rights under the Act.
Conclusion
There is no doubt that the Medical Termination of Pregnancy Act,1971 and the Medical Termination of Pregnancy Amendment Act,2021 aim for better health and safe abortion for both married and unmarried women and are very much in line with the essential spirit of the Constitution. What is required is its proper implementation by the State Governments and Union Territories by constituting medical boards which is mandatory under the Act and will prevent hardship to pregnant women and increasing petitions in the Court.
The Act requires expansion in the scope of the term “woman,” so every woman must be allowed to have an abortion. Though the Hon’ble Supreme Court stated that reproductive right is guaranteed to women under Article 21 which is the implied fundamental right of women is still tied to state-sanctioned conditionalities.
The 20 weeks period given to married and unmarried women in case of failure of contraceptive measures taken by her and her partner still creates a barrier to women’s reproductive rights. Only sex-selective abortions should be prevented, and women should be given full autonomy to whether go with the pregnancy or terminate it notwithstanding the period of pregnancy, only then the reproductive rights of women would truly be ensured.
Even if the life of a woman is at risk if she undergoes the procedure of termination of pregnancy, it should be her choice if she is ready to take the risk then no one has any say. They say must be of the woman and not of the doctor. When we go for Scooba diving or sky diving or other such activities for that matter, there we are made to sign a consent form declaring that we are doing such activity at our own risk and no one else will be responsible for the same if something happens to us. When the right to abort is an integral part of a woman’s autonomy why are we giving the reins to the doctors here? It is the woman who shall decide whether to go with the pregnancy or terminate it and no one else.
There is a need to bring a balance between provisions of POCSO and the MTP Act also, to ensure safe abortion and the physical and mental health of teenage girls.
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This article is written by Kishita Gupta, a Unitedworld School of Law, Karnavati University, Gandhinagar, graduate. This article discusses the aspects related to the legality of homosexuality in India. The discussion will be supported by various judicial rulings and legislation in India.
It has been published by Rachit Garg.
Table of Contents
Introduction
Is homosexuality legal in India? Well, a pretty straightforward answer to this question would be, “Yes, homosexuality is legal in India.” But the struggle to get it was not as easy as it sounds. From a position of complete lack of rights, the Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex (hereinafter referred to as the LGBTQI) community has waged numerous societal wars to achieve freedom and treatment as equal citizens or human beings. Over the ages, social reform movements centred on LGBTQI rights have earned this persecuted group of people close to equal and equal rights in many jurisdictions, and the reformation movements are currently going on around the world. The movement has begun to capture the imagination of decriminalisation of homosexuality, the right to family, and, in some countries, even the right to adoption, ranging from basic dwelling rights, to access to public employment, to the right to self-determination of one’s own sexual identity. Most civilisations’ religions, customs, and cultures fought reform initiatives for LGBTQI with the stereotypes they are always armed with.
In this article, the author has tried to discuss various aspects that led to the legality of homosexuality in India by discussing its origins in criminalisation, legislation, and various judicial decisions. The article will also touch upon a brief discussion of the legality of same-sex marriages in India.
History of homosexuality in India
Let us begin our discussion on the legality of homosexuality in India by going through its history first. It is said that homosexuality has been recognised in India since ancient times. In fact, there are traces of homosexuals being respected in society in mythology as well. According to the legislative history of the issue of homosexuality, the Fleta, written in 1290, and the Britton, written in 1300, are the first records of sodomy (anal sexual behaviour with another person) as a crime in the Common Law of England.
Both scriptures advocated for the burning to death of sodomites. The Buggery Act of 1533, which Queen Elizabeth I reenacted in 1563 and which ultimately served as the foundation for the eventual criminalization of sodomy in the British Colonies, later made sodomic acts punishable by hanging. Later, in 1817, oral-genital sex was dropped from the concept of buggery. And in England and Wales, the death sentence for buggery was officially abolished in 1861. It was believed that intercourse could only be done for the purpose of conception and anything done beyond that would be a crime.
In India, Lord Macaulay drafted the Indian Penal Code (IPC), which was first implemented in British India in 1861. Chapter XVI of the IPC, “Of Offences Affecting the Human Body,” incorporates Section 377 of the IPC. Section 377 IPC is included in this Chapter under the sub-chapter “Of Unnatural Offenses.” This is how homosexuality got penalised in India by the Britishers.
It’s noteworthy that Lord Macaulay’s draft of Section 377 differed significantly from the final version of Section 377. Lord Macaulay’s decision to punish touching another person for the purpose of satisfying ‘unnatural lust’ without their “free and intelligent consent” with a term of imprisonment extendable to life (but not less than seven years) is noteworthy for the era in which he lived, as opposed to his decision to punish the same offence when consensual, which would result in a maximum sentence of fourteen years in prison (but not less than two years). Even in this most conservative era in English history, Lord Macaulay understood that ‘unnatural lust’ might be punished with a lighter penalty if it was done with consent.
Given that the Indian Penal Code has been in existence for more than 150 years, it is shocking that only a few changes have been made to it. Early in the history of this nation, the 42nd Law Commission Report (1971) did not suggest that Section 377 be changed or repealed. However, revisions made to the preceding sections, which made it plain that anal intercourse between consenting adults, whether same-sex or otherwise, would not be punished, led B.P. Jeevan Reddy, J.’s Law Commission Report of the year 2000 (the 172nd Report) to suggest its elimination. But thanks to the transformative constitutionalism policy followed by our Indian judiciary, there has been a great development with regard to the rights of homosexuals in the country. Now let us discuss them further in the article.
What is Section 377 of the Indian Penal Code
As noted above, Chapter XVI of the IPC, “Of Offences Affecting the Human Body,” incorporates Section 377 of the IPC. Section 377 reads as follows:
Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
Development through judicial pronouncements
Naz Foundation v. Government of NCT of Delhi (2009)
The case of Naz Foundation v. Government of NCT of Delhi (2009) is one of the most influential decisions made by the Delhi High Court, comprising the bench of Chief Justice Ajit Prakash Shah and Justice S. Muralidhar, as it addressed a number of issues pertaining to the existence of Section 377 of the IPC in today’s time. The Court tested the impugned provision’s compliance with Articles 14, 15, 19, and 21 of the Indian Constitution in addition to determining whether it is constitutionally valid.
The Court observed that to ensure that the purpose of the Constitution’s rights is met, the constitution must be interpreted in a dynamic and progressive manner. Such an interpretation necessitates prioritising the constitutional commitment to provide all constitutional rights to all people, including LGBT people.
The Court also ruled that sexual preferences are protected by the individual’s right to dignity and privacy since Section 377 directly infringes on the aforementioned right, it breaches the core of Article 21. In order to address the question of whether Article 14 had been violated, the Court conducted the tests outlined by the Supreme Court in State of West Bengal v. Anwar Ali Sarkar (1952). In its ruling, the Court noted that the contested statute created an irrational differentia and that there was no necessary connection between preventing child sexual abuse or enhancing public health and criminalising consenting adult sexual relationships.
The Court then went on to define the term ‘intercourse’ in Article 15 to have a considerably larger circumference in addition to ‘sexual orientation,’ going beyond just indicating gender. The Court went on to conclude that Section 377 is prima facie discriminatory towards sexual minorities and is consequently in violation of Article 15 based solely on this view. The Court considered it unnecessary to consider whether Article 19 was violated because the disputed statute also violated Articles 21 and 14.
The Court also reflected concerns about the earlier days of Section 377 because of its stigmatising consequences of attaching the identity of hijra to criminality. The Court discussed the criminalisation of identity merely because they belonged to a particular community under the Criminal Tribes Act of 1871, after citing evidence that Section 377 was used to assault and harass a person. Although the Court did not invalidate Section 377 in its entirety, the Section was swiftly ruled unlawful as it made adult consensual sexual actions in private illegal. The Court stated in the decision that the ruling might stand until Parliament decided to change the law.
Suresh Kumar Koushal v. Naz Foundation (2013)
This case was heard in the Supreme Court of India in an appeal against the decision made by the Delhi High Court in Naz Foundation v. GOI. Surprisingly, in this case, the Supreme Court struck down the ruling given by the Delhi High Court.
The petitioners contended that Section 377 does not appear to mention or categorise any specific group or gender and is therefore not in violation of Articles 14 and 15 and 21. The Court agreed with their arguments and decided that Section 377 does not violate Articles 14, 15, or 21 and that carnal intercourse, as the petitioners meant and defined it to mean, should be penalised.
According to Justice Singhvi, Statute 377 is pre-constitutional legislation and had it violated any of the rights protected by Part III, Parliament would have long ago recognised this and removed this Section. This justification led him to declare the clause to be constitutionally legitimate. The Delhi High Court’s decision to read down the Section in the aforementioned case was incorrect because no part of the Section can be severed without affecting the Section as a whole, and that Section also happens to be the only law that governs cases of paedophilia and tyke sexual abuse and assault. He also claimed that the doctrine of severability and the practice of reading down a particular Section flowed from the presumption of constitutionality. Therefore, the Supreme Court determined that Section 377 of the Indian Penal Code does not have any constitutional flaws and leaves it up to the appropriate legislative body to decide whether it would be desirable and legitimate to remove the Section from the statute book or adjust it to permit private consensual sexual activity between two adults of the same sex.
National Legal Services Authority v. Union of India (2014)
In 2014, the Supreme Court in this landmark case gave legal recognition to the ‘third gender.’ The Court observed that for the purpose of preserving the rights under Part III of our Constitution and the regulations passed by Parliament and the state legislature, ‘Hijras’ and ‘Eunuchs’ should be considered as ‘third gender’ in addition to binary gender. The right of transgender people to choose their own gender is also respected, and the Central and state governments were asked by the Supreme Court to recognise transgender people’s gender identities, whether they identify as male, female, or as a third gender.
The Central and the state governments were directed by the Supreme Court to take action to treat them as socially and educationally disadvantaged classes of citizens and to consider all forms of racial and ethnic discrimination when considering them for admission to educational institutions and positions in the public sector. Further, the Court observed that the challenges that Hijras/Transgender people encounter, such as fear, embarrassment, gender dysphoria, societal pressure, depression, suicidal thoughts, and social stigma, should be taken seriously by the Central and state governments.
K.S. Puttaswamy v. Union of India & Ors. (2017)
In K.S. Puttaswamy v. Union of India & Ors. (2017), a 9-judge Bench of the Hon’ble Supreme Court concluded that the dignity of an individual, human equality, and the search for liberty are the foundational pillars of the Indian Constitution. The Supreme Court went on to say that dignity is a constitutional ideal enshrined in the Preamble. The right to privacy, self-determination and autonomy are all facets of the right to dignity protected by the Indian Constitution. The Court also stated that family, marriage, procreation, and sexual orientation are all important aspects of an individual’s dignity.
We also need to emphasise the lack of substance in the contention that privacy is a luxury for the few, as quoted by J. Chandrachud, speaking for the majority in Justice K.S. Puttaswamy v. Union of India. He emphasised that everyone in society, regardless of social class or economic condition, has the right to privacy, which preserves intimacy and autonomy. It is privacy, as a fundamental and core characteristic of life and human liberty, that allows a person to resist a forced sterilisation programme. However, if the state were to establish mandatory drug trials of non-consenting men or women, privacy would be a powerful guarantee. The sanctity of marriage, the freedom of procreation, the choice of family life, and the dignity of being are all issues that affect everyone, regardless of social class or economic status. The pursuit of happiness is based on self-determination and dignity. Both are crucial aspects of privacy that make no distinction between an individual’s birthmarks.
The right to privacy guaranteed by Article 21 includes privacy in family life. The right to marry queer or non-heterosexual people, which is recognised by law in the United States, was also cited in this Hon’ble Supreme Court decision, where the decision to marry someone is part of the foundation of the family and thus falls within the right to privacy in family matters.
This case is important to be mentioned here because even though it did not legalise homosexuality in the country per se, it was the first judgement ever to state that sexual orientation is an inclusive part of the right to privacy and thus protected by the Indian Constitution.
Navtej Singh Johar v. Union of India (2018)
September 6, 2018, is a historic day for India as it is on this day that the Supreme Court gave legal recognition to the LGBTQI community by legalising consensual sexual intercourse between individuals of the same sex through the judgement of Navtej Singh Johar v. Union of India (2018). Let’s understand the ruling in this case briefly:
Facts of case
As noted above, the Supreme Court’s judgement in Suresh Kaushal reversed the Delhi High Court’s judgement in Naz Foundation. The Supreme Court’s decision was contested in a number of curative petitions. While the curative petitions against Suresh Koushal were still pending, five members of the LGBTQ community — a well-known Bharatnatyam dancer, Navtej Singh Johar; restaurateurs Ritu Dalmia and Ayesha Kapur; hotelier Aman Nath; and media personality Sunil Mehra, filed a new writ petition calling for the repeal of Section 377 of the IPC insofar as it criminalised consensual sex.
Even though the curative petitions were still pending, the Supreme Court on January 5th, 2018, constituted a Constitution Bench to hear the challenge against Section 377 in its entirety. This might be a result of the findings reached in the nine-judge decision in Puttuswamy’s case, which suggested that the rationale and judgement in Suresh Koushal’s case were fundamentally flawed. This case was heard by a five-judge panel consisting of Chief Justice Dipak Misra, Justices A.M. Khanwilkar, D.Y. Chandrachud, R.F. Nariman, and Indu Malhotra beginning on July 10, 2018.
Key issues
Whether Section 377 of the Indian Penal Code violates Article 19(1)(a) by violating the fundamental right to expression as it criminalises the basic right to express the sexual orientation of persons belonging to the LGBTQI+ community?
Was the rationale given by the Supreme Court in its own judgement in the Suresh Kaushal case correct?
Whether Section 377 is violative of Articles 14 and 15 as it allows discrimination against LGBTQI on the basis of their “sexual orientation” and “gender identity”?
Whether Section 377 violates the right to autonomy and dignity of LGBTQI people provided under Article 21 by penalising private consensual acts between same-sex persons?
Important observations by the Supreme Court
Transformative power of the Constitution and constitutional morality
The Court observed that there exists a right to love a person of one’s choice. It is a desire for everyone to realise their constitutional, human, and humane rights as well as their equal citizenship and just, humane, and caring existence. Regarding the issue of the constitutionality of Section 377, the Court held that its effects extend far beyond the absorption of gays into the LGBT community or anybody else in a similar situation as fully equal citizens. It also includes inter-caste and inter-community interactions, which society aims to prevent. In addition to providing a minority group with their proper place within the constitutional framework, the preservation of LGBT people’s rights and those of anybody else in a similar situation also speaks to the kind of nation we want to live in and what that means for the majority.
Section 377 of the IPC is based on moral principles that are incompatible with a constitutional system where liberty must triumph over prejudice and the mainstreaming of culture. Above all else, our Constitution is a reflection on accepting diversity and was created with the goal of fostering an inclusive society that accepts a variety of lifestyles. The order of nature that Section 377 refers to includes intimate conduct that the social order regards as unpleasant as well as non-procreative sex. What ties LGBT people to couples that value one another regardless of caste or community is the fact that each of them is challenging established societal hierarchies while exercising their right to love at great personal peril. Since the constraints imposed by systems like gender, caste, class, religion, and community are seen as part of the order of nature rather than just the prohibition of non-procreative sex, the right to love becomes a fight for everyone, not only for LGBT people.
The Court further held that the effects of Section 377 go well beyond just decriminalising some behaviours that were forbidden by colonial law; they also affect people’s very identities, existence, and right to equal and full citizenship.
Availability of various rights enshrined under the Indian Constitution
In accordance with Articles 14, 15, 19 and 21 the rights to sexual identity, sexual orientation, freedom, sexual autonomy, sexual privacy, sexual expression, choice of partner/sexual partner, and sexual health are recognised as fundamental rights. The Court ruled that understanding contemporary ideas of sexuality and sexual identity requires understanding the shift from reproductive/procreative instinct to erotic desire and emotional intimacy. This is due to the blurry lines between homosexuality and heterosexuality, which may even be an old myth or creation given how fluid sexual identities are today.
According to the Court, homosexuality is neither a mental illness nor a disorder. It is an accepted and common form of human sexuality.
Difference between Section 375 and Section 377 of IPC, 1860
The element of consent is where Section 375 and Section 377 differ most. While Section 377, on the one hand, criminalises all sex between two adults, whether heterosexual or gay, regardless of consent, on the other hand, Section 375 recognises that the absence of deliberate and informed consent qualifies a heterosexual act as rape. Therefore, consensual heterosexual relationships between adults are not illegal under Section 375, but consensual carnal relationships between adults who identify as LGBT are illegal under Section 377.
The Court observed that Section 377 declares all forms of non-procreative sexual behaviour to be unlawful and treats them as unnatural without taking consent or harm into account. It makes a distinction between homosexuals and heterosexuals. It is saddening to see that even though the LGBT community also has the same human, fundamental, and constitutional rights as other people, it is treated unfairly and as a different class of individuals. When other penal statutes like Section 375 IPC and the Protection of Children Against Sexual Offences (POCSO) Act, 2012 punish non-consensual carnal intercourse, the classification selected by Section 377 has no rational relationship to the goal it aims to achieve.
Judgement of the Supreme Court
In this judgement, Section 377 of the IPC was found to be unconstitutional by the Supreme Court of India because it criminalises adults’ consensual sexual acts, regardless of whether they are heterosexual, homosexual, members of the lesbian, gay, bisexual, or transgender (LGBT) community, or anyone else in a similar situation. The Section was held to violate Articles 21, 14, 15, and 19 of the Indian Constitution. According to the Court, the LGBT community and those in comparable situations are entitled to the same human, constitutional, and fundamental rights as everyone else. However, the Court held that any act listed in Section 377 that is performed between two people without one of them having given consent, or any type of sexual interaction with an animal, would be a criminal offence. Lastly, it was held that the two-judge Supreme Court bench ruling in Suresh Kumar Koushal (2014) is overturned.
Development post decriminalisation of homosexuality
The Transgender Persons (Protection of Rights) Act, 2019
In the aftermath of the two landmark rulings, the NALSA judgement(2014) and the Navtej Singh Johar judgement (2018), in 2019, Parliament passed a law called the Transgender Persons (Protection of Rights) Act, 2019. This is the first law established by the Parliament to protect transgender people’s rights and eliminate all types of discrimination against them in the country. Let us go through a few key provisions of this Act:
Transgender definition
Section 2(k) of the Act recognises a transgender person as someone whose gender does not correspond to the gender assigned at birth. It encompasses those who identify as transgender, intersex, genderqueer, and with socio-cultural identities like kinnar and hijra.
Prohibition against discrimination
Section 3 of the Act prohibits all persons and corporations from discriminating against a transgender person on the below-mentioned grounds:
Discrimination in educational establishments.
Discrimination in employment.
Discrimination in healthcare services.
Discrimination with regard to access to and enjoyment of goods, facilities, services, etc. that are available for the public.
Denial of the right to movement.
Denial of the right to reside, rent, or otherwise occupy any property.
Discriminating an opportunity to hold public or private officers.
The denial of admission to a public or private facility where a transgender person may be in charge or custody.
Obligations on the government for welfare measures
The Act imposes certain obligations on the government to ensure due welfare measures are being taken. It states that the appropriate government will take action to ensure transgender people’s full inclusion and engagement in society. Additionally, it must implement programmes that are transgender-sensitive, rescue and rehabilitate them, provide them with self-employment and vocational training, and encourage their participation in cultural events.
The National Council for Transgender Persons (NCT)
Section 16 of the Act states that a National Council for Transgender Persons (NCT) shall be constituted by the Central Government through notification. On the other hand, Section 17 states the functions of the Council. The Council is supposed to provide advice to the central government and keep a watch on the results of transgender-related projects, laws, and regulations. Additionally, it will also have to address the complaints of transgender people.
Offences and penalties
Section 18 of the Act imposes six-month imprisonment, which may be extendable to two years or with a fine. The following are the offences recognised by the Act:
Any act of forced or bonded labour.
Any kind of denial to a transgender person of the use of public place.
Forceful removal of a transgender person from their household or village.
Any kind of physical, mental or emotional abuse caused to the transgenders.
Arun Kumar and Sreeja vs. The Inspector General of Registration, Chennai (2019)
It was decided in the case ofArunkumar v. Inspector General of Registration (2019) that transgender people have the right to marry under Article 21 of the Indian Constitution and that the term ‘bride’ under the Hindu Marriage Act, 1955, includes transgender persons who identify themselves as women. The Madurai Bench of the High Court of Madras held that a marriage between a man and a transwoman, both professing the Hindu religion, was valid under the Hindu Marriage Act, 1955. The Court upheld Ms. Sreeja’s self-identification as a woman and acknowledged her right to do so, as well as the rights of other intersex and transgender people who identify as women, to be included in the term ‘bride.’ It was observed that the state’s refusal to register her marriage constituted a breach of her fundamental rights.
Ms. S. Sushma & Anr. vs. Commissioner of Police, Greater Chennai Police 2021
This 2021 case by the Madras High Court is a landmark decision which shows the positive impact of the Navtej judgement. This is a first of its kind case where the judge himself went for a counselling session to understand same-sex relationships. The judge said that he needs to be fully ‘woke’ on this aspect for the judgement to come out from his heart rather than his head. The Court passed various guidelines in this judgement to ensure that there is a rightful implementation of the Navtej judgement.
The Union and state governments have been ordered by the Madras High Court to take action to prevent attempts by medical and healthcare professionals to ‘cure’ or alter the sexual orientation of members of the LGBTQIA+ community. The Court has further ordered that appropriate measures, including the revocation of the professional’s licence to practise, be taken against anyone involved in conversion ‘treatment’ in any way.
If the police receive a complaint against a girl, woman, or man, and if an additional inquiry reveals that the individual against whom the complaint is filed is a consenting adult who belongs to the LGBTQI community, the police must immediately close the complaint without harassing the individual in any way.
Further, these listed NGOs are required to maintain confidentiality and to submit aggregate annual reports to the Ministry.
The LGBTQI community’s problems shall be addressed by offering financial assistance, counselling, or legal assistance with the aid of DLSA or any other support. The assistance of law enforcement agencies is available for resolving issues encountered by community members and for crimes perpetrated against members of the LGBQTIA+ community.
It is necessary to make appropriate arrangements to handle the accommodation issue. According to the Court, the existing housing options (stay homes, Anganwadi shelters, and Garima Greh) were only able to offer shelter, food, medical care, and recreational amenities; however, the Court ordered that following the issuance of this order, such homes must also support the LGBQTIA+ community’s capacity building and skill development.
Further any other initiatives and policies necessary to end prejudice against LGBQTIA+ people must be adopted, and they must be developed with the assistance of other ministries and departments as well as the Union and state governments.
The Hon’ble Court recommended a number of awareness campaigns for various groups, including parents of LGBQTIA+ community members, DLSA and SLSA, the court, physical and mental health experts, educational institutions, and healthcare staff.
It is important to note that this is just a suggestion, and thus the list is merely illustrative and not comprehensive.
Queerala & Anr. v. State of Kerala & Ors (2021)
The Kerala High Court recently ordered the State administration to create regulations against the allegedly forced conversion therapy given to members of the LGBTQI+ community by State-licensed medical professionals. The State government was ordered by the Court to investigate the situation and, if required, form an expert committee to research it. Based on this study report, the State had five months to draft guidelines and submit them to the Court.
The decision was made in response to a petition filed in Kerala by a recognised LGBTQI community organisation and a transman who claimed to have been the victim of coerced conversion therapy.
After the Navtej Singh Johar judgement, various high courts recognised the legitimacy of non-heterosexual relationships and marriage partners and granted them habeas corpus protection.
The following is an illustrative list of such cases:
National Medical Commission ban on conversion therapy
With the National Medical Commission (NMC) designating conversion therapy as “professional misconduct” on August 25, 2022, and authorising State Medical Councils to take disciplinary action if the guideline is broken, another layer of prejudice against the LGBTQIA+ population is being eliminated. Particularly when they are young, members of the LGBTQI community or people of any other orientation are frequently forced to modify their sexual orientation or gender identity through conversion or “reparative” therapy. Therapy can take many different forms, including exorcism, electroshock therapy, psychosomatic drug use, and psychiatric care. Trauma from this can result in drug addiction, sadness, anxiety, and even suicide.
The Madras High Court had ordered the NMC to publish an official notification classifying conversion treatment as wrong under the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. If the Supreme Court’s repeal of Section 377 of the Indian Penal Code in 2018 was the first step toward decriminalising homosexuality, the NMC’s notice is also a modest step in that direction. But much more work needs to be done if we want the LGBTQAI+ community to feel safer.
There should be clarity regarding what action would be taken against quacks, psychiatrists, and doctors accused of providing reparative treatment and the penalties they will face, taking a cue from nations like Canada, which has outlawed conversion therapy. Education needs to lay the foundation. In addition to legislation that is more suited to the demands of a varied community than the Transgender Persons (Protection of Rights) Act, 2019, the transformation must occur on a societal level.
Karnataka government’s decision on reservation for transgenders
The Karnataka Government has determined that among the transgender applicants in each category of General Merit, SC, ST, and in each of the OBC categories, 1 percent of the vacancies to be filled in any services or posts by the State government will be provided.
The memo was submitted by the government during the hearing of a petition from Sangama, an organisation that works to advance sexual minorities, sex workers, and HIV-positive individuals.
The petitioners argued that the state only identifies ‘Men’ and ‘Women’ as the genders that can apply for the openings in its appointment circular, calling for filling out the vacancies, citing the Supreme Court’s decision in the case of NALSA v. Union of India (2014). The age, weight and other data are only provided for ‘Men’ and ‘Women’ separately in the contested notification, with complete disregard for the ‘Third Gender.’
Is same-sex marriage legal in India
As we have discussed above, there has been a great development in India with regard to LGBTQI rights. As a result, in an honest effort to induce legislative reform, a series of petitions have been submitted in different High Courts of the nation, questioning the non-inclusion of marriage rights for LGBTQ+ couples in various statutes, ranging from the Hindu Marriage Act of 1955 to the Foreign Marriage Act of 1969.
The Special Marriage Act of 1954, as well as its regulations, are determined to be discriminatory because they only recognise marriages between people of the opposite sex. Though the Act’s text does not specifically forbid homosexual partnerships, its terminology in Section 4 and Schedules 2 – 4 has a heterosexual undertone, as they depict marriage as a practice between a man and a woman or between a bride and a groom. This is especially true because of the Forms mentioned in the bare Act to Schedule Nos. 2 – 4 of the Act, which specify the format of the “Notice of Intention to Marry,” the declarations to be made by the parties to the marriage, and the marriage certificate, all employ heterosexual terminology. As a result, a homosexual cannot file for marriage solemnisation or registration under the law.
The institution of marriage confers particular rights and privileges on those who are married in society, and because of the aforementioned exclusion, homosexual couples are denied the same rights and privileges. Being married gives you the right to maintenance, inheritance, joint bank accounts, lockers, and the ability to name each other as a nominee in insurance, pension, and gratuity papers, among other things. Due to their exclusion from the institution of marriage, all of these are inaccessible to the LGBTQ community, making the exclusion even more discriminatory.
Non-recognition of same-sex marriages violates the same-sex couples’ right to dignity as LGBT people and as a same-sex couple as guaranteed in the Puttuswamy and Navtej Singh Johar judgements.
Non-recognition of same-sex marriages is against the integral rights guaranteed under Article 21.
Non-recognition of same-sex marriages is against the institution of marriage as per the Constitution as affirmed in the judgement of Joseph Shine v. Union of India (2019).
Violation of Article 19 of the Constitution of India
Denial of the institution of marriage to couples and refusal of the state to recognise and acknowledge homosexual marital unions are both criminal and constitutional violations of their right to freedom of expression protected by Article 19(1)(a) of the Indian Constitution as affirmed in the cases of Vikas Yadav v. State of UP (2016) and Asha Ranjan v. the State of Bihar (2017).
The challenged laws infringe on same-sex couples’ fundamental rights under Article 19(1)(c) of the Constitution by excluding them from the protection and recognition of the law when it comes to marital relationships.
Violation of Article 14 and Article 15 of the Constitution
The idea that a law that is manifestly arbitrary violates Article 14 of the Indian Constitution is well established by Shayara Bano v. Union of India (2017).
Discrimination under Article 15(1) occurs when non-heterosexuals are denied the right to marry. Discrimination against nonheterosexuals includes both gender or sex discrimination and discrimination based on sexual orientation.
Classifying the two groups of people, namely same-sex married couples and opposite-sex married couples, based on the partners’ sexual orientation amounts to treating equals as un-equals and violates Article 14 of the Indian Constitution.
Queer people are refused entry to business enterprises and public spaces without formal acknowledgement of their marriage, which is a violation of their Article 15(2) rights. They do not have the same rights as a married partner when it comes to privately accessed necessities and activities such as insurance, hospitalisation, and hotel booking.
Violation of Article 25 of the Constitution
The failure of Indian marriage laws to recognise same-sex marriages violates same-sex spouses’ freedom of conscience. Article 25 of the Indian Constitution recognises freedom of conscience as a basic right that is not limited to religious considerations.
Violation of the Directive Principles of State Policy
Part IV of the Constitution imposes a duty on the state to follow certain governance principles, and many of these principles, when interpreted in the context of bringing equality and welfare to LGBTQI people, impose an obligation on the government to abolish discrimination against them. The state has a positive obligation under Article 38(2) of the Constitution to remove inequalities in status, facilities, and opportunities for its citizens. Article 39(a) requires the government to treat all citizens equally, whereas Article 44 encourages the government to create a standard civil code for all citizens.
When the state’s mandated duties under Part IV of the Constitution are compared to the justiciable rights under Part III of the Constitution, it is clear that the State is powerless to deny homosexuals and other sexual minorities access to matrimony and that the State has a positive duty to protect these individuals from all forms of discrimination based on their sexual orientation or gender.
Conclusion
Though homosexuality was decriminalised in 2018 as a result of a Supreme Court verdict, other civil rights and liberties such as marriage, adoption, and insurance are still unavailable to both gays and transgender people. Usually, the way forward is the way ahead. However, more than four years after homosexuality was decriminalised, India’s government’s response to establishing LGBTQIA+ dignity has been a standstill, if not an attempt to go backwards, by pursuing dismissals of petitions seeking recognition of same-sex marriages under existing laws. Times are changing, and public morality is changing as well. Marriage should no longer be defined in terms of a man-woman relationship; instead, it should be regarded in broader terms as the civil status, state, or relationship of two people united in law for life. It’s past time to acknowledge that same-sex couples have the same constitutional right to marry and enjoy all the rights of a married couple as everyone else.
Frequently Asked Questions (FAQs)
Can two men marry in India?
Indian laws do not per se allow a marriage union between two persons of the same sex. Thus, India still has to make same-sex marriage unions legal in the country. There are several petitions filed in different High Courts of the nation, demanding the legalisation of same-sex marriages in India.
Is Section 377 of the IPC scrapped in India?
No, Section 377 IPC is not entirely scrapped. It is declared unconstitutional to the extent that it restricts consensual sexual intercourse between two persons of the same sex. The remaining part of the Section continues to be a law.
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The dictionary meaning of ‘eyewash’ is words that are not true or sincere. In today’s world, international laws have become an eyewash and bear no meaning. The reason for that is the manner in which permanent members of the United Nations Security Council (UNSC) behave in the international community. The way in which the main powerful members of UNSC, the USA, China, and Russia treat international laws is depressing.
The USA has been imposing trade sanctions on Russia and China. That is to say that the permanent members are imposing sanctions and restrictions on each other. Instead of controlling rogue nations to follow world order to make such rogue nations respect the international laws, the permanent members are divided among themselves over territorial and border issues and they themselves have become a great threat to international peace. It seems that the world war has gotten extended into a new form of war that we are witnessing today. A threat war is a new type of war, whereby every country in the world threatens its neighbours, so there is a great deal of uncertainty about the war, resulting in a fearful atmosphere. Instead of de-escalating this conflict, NATO and the UN are somehow fueling it by moving out of the way and promoting their interests, specifically those of the USA. UN peacekeeping forces include military personnel from nearly the entire civilised world, but when the time comes to act, UN peacekeeping forces are conspicuously absent. This becomes an example of glimmering failure like in the case of Afghanistan.
The UN has now become a pot of failures which is evident in the present scenario, and it can be proved by a few glaring examples of its failure like the ongoing Somalian civil war since 1991, the Sudan conflict since 2003, and the Syrian civil war since 2011, amongst others.
What is an international law
In layman’s terms, International law can be defined as a law that all the nations of the world abide by and follow while dealing with each other over territorial matters, matters of Prisoners of war, international trade and transactions etc. The Academy of Science of U.S.S.R. defines international law in the following manner: “International law is composed of the rules that govern relations between states in conflicts and cooperation in order to safeguard their coexistence, express the will of the ruling class and defend states when they need to apply coercion individually or collectively”. Thus international laws are a set of rules which prevail among all the states governing their behaviour with the other nations during conflicts, war and times of peace. International laws are rules for bringing order to the mutual relationships of the states.
In short, international law can be summarised as follows:
It is a set of rules;
It must be followed by all the nations;
It exists to facilitate smooth relationships among the states;
It is a medium of exchange of ideas to be done according to standards widely acclaimed by other nations;
It is a catalogue of Dos and Don’ts to be followed by the family of nations while interacting among themselves.
Objective of international law
The aim of International law is to do justice among the nations. By establishing justice among the states related to their disputes, international law aims to bring order among the states and the international community particularly in terms of economic developments and peace by achieving friendly trade relations for mutual benefits. States in the family of nations can not make themselves aloof from international dealings and must adhere to the laws followed by their neighbours and other nations for maintaining good relations and for their development which has become more realistic after the establishment of the world trade order.
The South-China Sea disputation and the failure of UNCLOS
South-china Sea, as the name suggests, is in the south of China. It is a portion of the Western Pacific ocean. It is the region where almost one-third of global trade passes and it also connects two of the major water bodies the Indian Ocean and the Pacific Ocean with each other through the Strait of Malacca. China is belligerent here as it has been building many artificial islands in the region for the purpose of armed ventures. The reason for dispute in the region is the claim over three islands namely Scarborough shoal [claimed by Philippines, China, and Taiwan], partly islands [claimed by Philippines, China, Taiwan and Brunei] and the Paracel islands [claimed by China, Vietnam and Taiwan]. The basis of claim over these groups of islands is based on the belief in the presence of natural gas and oil deposits.
China claims that the USA violated its claim over the territorial waters of Paracel islands by moving one of its warships there, and on the other hand, the USA counters China’s allegations by saying such exercise was in line with international law.
The issue was taken by the Philippines to the arbitral tribunal constituted under Annexure-VII of UNCLOS to solve the issue and the ruling of the arbitral tribunal went in the favour of the Philippines which said China’s claims over the nine-dash lines has no legal backing and China’s activities within EEZ of Philippines is violating Philippine’s rights, but China rejected the ruling and acquired a hard-line stance.
UNCLOS is an international convention which provides a framework for jurisdiction in matters of maritime disputes. It was adopted in 1982 and came into effect in 1994. China has rejected the tribunal’s ruling and often asserts its historic claim over the nine-dashed lines jointly claimed by Brunei, Malaysia, Taiwan and the Philippines. China uses its naval power to intimidate its maritime neighbours mentioned above and does not honour the verdict of the arbitral tribunal. Thus, here UNCLOS failed to impose international law of the seas as it has now ceased to have a force.
Economic sanctions
It is an alternative to military action for punishing a country jointly or individually by withdrawing financial and trade relations from the rogue nation. In other words, economic sanctions are penalties imposed on a nation for its uncalled-for actions like a war. In the modern world, economic sanctions are a better option as compared to armed action against the receiving state. Benefits of economic sanctions:
There is no loss of lives: as there is no war between the nations. No loss of life includes the lives of soldiers and civilians of the nations that might have gone to war with each other for realizing their interests.
Saving money: The amount of money that might get spent in case of a full-scale war is huge and puts immense pressure on the nations at war. Economic sanctions prevent such losses of money which may be used for greater purposes like the development of the health sector, education and electricity generation.
It works as a threat: economic sanctions work as a threat to the rogue nation and it can weigh the costs of non-compliance with the conditions of the sanctioning nation.
But in recent years, the effectiveness of economic sanctions has been slowly diminishing. As a result of Iran’s non-compliance with the Joint Comprehensive Plan Of Action (JCPOA), also known as the Iran nuclear deal, the US imposed sanctions on Iran. The agreement, which was reached by the USA, UK, Russia, Germany, and China in 2015, also prohibited Iran from enriching its nuclear fuel and opening its gates to international inspectors But in 2018 USA alleged Iran of non-compliance with the conditions of the nuclear deal and pulled out of JCPOA and imposed sanctions on Iran. This sanction dented the economy of Iran but did more damage to its import bill of India. After Iraq and Saudi Arabia Iran is the largest supplier of oil to India, but having sanctions imposed on Iran the oil prices soared internationally.
Refugees and international refugee law
A refugee is an individual who is ‘forced’ to flee their home because of instability. Refugees face many challenges; they must leave their homes and look for shelter, food, water, employment, respect, dignity, care, happiness, protection, medical facilities, financial and social security, hope, freedom, and a place to live. And that is all in a foreign country. Is it possible to remove the scar left behind by being forced to flee for one’s life even if one gets all of this detailed above?
All the damages can be undone but the emotional damage cannot be undone. A refugee is someone who is never the same person who fled from his own home. The refugee crisis is a huge problem and there are millions of refugees in this world who have fled their homes to save their lives. The worst affected region by the refugee crisis is the African region. The people of the Central African Republic, Sudan, Eritrea, Syria, the Democratic Republic of Congo Somalia, South Sudan, Afghanistan etc all have left their homes because of war, civil war, sectarian conflicts, climate change-related violence, regional conflicts etc.
In 1951, the world became aware of the refugee issue and created a framework to safeguard refugees, which became known as the UN convention on refugees. The convention has granted some rights to a refugee. A few of them are:
Right to not be punished
Right to be issued important documents for travel and identity
Right to housing, education, work
Right to not be expelled (conditional). The countries hosts of the refugees who have ratified the UN refugee convention also face a greater number of problems while settling the refugees which can be enumerated as follows:
Economic cost: The host countries face a huge economic burden when they come face to face with the influx of refugees from neighbouring countries. They have to take a portion of their expenses which was set aside for the development and benefit of their citizens and spend them on the welfare of refugees.
Lack of international assistance: In the wake of the refugee crisis the host nations face a shortage of assistance from the international community to help them in settling the refugees. This is either due to unwillingness towards the cause on the part of the international community or they are themselves facing problems.
Increase in crime: With the coming of refugees the host country’s citizens see a refuge as a competitor. They think that now they have to share everything with the refugees as their nation has ratified the UN convention. This leads to the development of hatred of the host communities towards the refugees and results in further instances of crime toward refugees
In the wake of the Covid crisis, there are restrictions on the movement of people internationally. This increases the problem faced by the host nations as the desperate refugees to save their lives and in the hope of better conditions or treatment may try to get into the host nation illegally and by doing so may spread the pandemic even more.
Failure of international laws and UNO
UN made different laws and devised charters but in totality, the UN has failed to control wars, this can be seen in the following examples:
Syrian Civil War: Earlier UN tried to resolve the Syrian crisis but it failed as the permanent members of the UNSC are directly or indirectly involved in the Syrian Civil War.
The US war on Iraq: US in violation of Article 2(4) of the UN Charter invaded Iraq as it had apprehensions that Iraq was developing weapons of mass destruction.
UN’s dependence on P5 Nations: It is true that UNO depends on the veto of P5 nations. One glaring example is the use of veto by Russia to protect the Assad regime in Syria.
Angary and neutrality-
Neutrality means the impartial behaviour of a third state towards the belligerents in case of a war. Neutral states are formed in case of a war, whose status is recognized and respected by the states at war with each other. In simple terms, neutrality is the way by which a state conducts its activities with the nations at war by keeping itself out of war.
Angary, on the other hand, means the right of a belligerent state to, ‘use, occupy, destroy the property of a neutral state within the territory under its jurisdiction. Angary is the direct violation of the right of a neutral state like immunity from hostility i.e. it has the right to protect its territory and property from the use and destruction by belligerent states.
An example of a violation of neutrality can be viewed in the disaster of the MH17 aircraft in Malaysia. Malaysia has a neutral stance over Ukraine and Russia conflict but Western countries blame Russia for taking down the flight, however, such claims are absolutely denied by Russia. Whatever may be the truth, the neutrality right of Malaysia got violated by the incident.
One more example may be the use of anti-satellite weapons which if used by two warring states against each other may destroy or damage life and property in a neutral state. Satellites destroyed by anti-satellite weapons become directionless and uncontrollable and may fall on neutral state territory, violating its neutrality.
Conclusion
The existing international legislative system is incapable of bringing order to the world. Rather than protecting the world order, the United Nations is failing, NATO failed to defend Ukraine, and the USA fled Afghanistan. Making a small nation which is underdeveloped and facing internal problems is not expected to follow international rules but nations that have been developed for 300 years or who have recently reached economic developments are expected to follow the international laws and if international laws fail to make them comply with the given set of rules then in the present scenario the international laws have failed.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
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This article is written by Tarini Kalra, a BBA-LL.B. student from Fairfield Institute of Management and Technology, affiliated with Guru Gobind Singh Indraprastha University, New Delhi. The article examines the concept of anticipatory bail with the help of various case laws.
Consider a scenario where ‘A’ has committed a non-bailable offence and he is aware that he can get bail before he gets arrested. The Indian criminal law system provides an individual under Chapter XXXIII of the Code of Criminal Procedure, 1973, three kinds of bail: regular, interim, and anticipatory. Therefore, if ‘A’ wants to seek bail before getting detained, then ‘A’ may invoke one of the most significant defences of personal liberty defined under Section 438 of the Code of Criminal Procedure, that is, anticipatory bail. If a person believes they are likely to be arrested on non-bailable charges, they can move to the Court of Session or the High Court for anticipatory bail. Anticipatory bail is a type of pre-arrest bail, and the court’s authority to grant anticipatory bail is discretionary.
Section 438 is a procedural provision that addresses the right to personal liberty and the presumption of innocence. The present article provides a detailed study on the provision of anticipatory bail under Indian criminal law. It attempts to present the recent developments in anticipatory bail along with a critical analysis of the judgments of the respective courts.
The scope of anticipatory bail under Section 438 CrPC
Section 438 primarily addresses pre-arrest bail for non-bailable offences. A person apprehended for arrest may apply to the Court of Session or High Court for a direction to be released on bail. The power to grant anticipatory bail is ultra vires for the lower courts. Section 438(1A) of the Criminal Procedure (Amendment) Act, 2005 deals with the following factors that the court considers before granting anticipatory bail:
The nature and gravity of the accusations.
The charge levelled against the applicant intends to harm or humiliate him by having him detained.
The applicant’s record, including whether he has previously been imprisoned or sentenced by a court for any cognizable offence.
The potential of the applicant to defy justice.
If the High Court or Court of Session has not issued an interim order or has rejected the application for anticipatory bail, an officer in charge of a police station may arrest the applicant without a warrant based on the accusation included in the application. When a court provides an interim order, the applicant is required to submit a seven-day notice to the public prosecutor, and the application is only approved or refused after addressing it.
According to Section 438(1B), the applicant for anticipatory bail is obligatory when the court adjudicates the case and issues a final hearing of the application or passing of final order by the court. Upon the public prosecutor’s plea, if the court determines that such attendance is required in the interest of justice, then the applicant must appear in court.
Development of law on anticipatory bail in India
Under the Code of Criminal Procedure (1898), there was no provision related to anticipatory bail. Anticipatory bail evolved as a result of judicial decisions interpreting Sections 496, 497, and 498 of the Code of Criminal Procedure, 1898. Section 496 dealt with circumstances when bail is to be granted. Section 497 dealt with circumstances when bail may be taken in the case of non-bailable offences. Section 498 dealt with the power of the High Court or the Court of Session to direct admission to bail or reduction of bail. The notion arose from the Law Commission’s suggestions, which considered it a helpful addition to the protection of a person’s rights. The concept was first mentioned in the 41st Law Commission Report of 1969 in paragraph 39.9.
The Law Commission observed:
“The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or
for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase.”
Section 497A was inserted after the report of 1969, which dealt with the direction to grant bail to a person apprehended for arrest for committing a non-bailable offence. Such an individual could apply to the High Court or the Court of Session, which has discretionary power to grant bail. A magistrate taking cognizance of an offence must comply with Section 204(1), which deals with the process of the issue before the magistrate. When a person was arrested without a warrant by an officer in charge of a non-bailable offence and who expressed a willingness to be provided with bail at the time of the arrest or at any other time while in the officer’s custody, they must be released on bail.
The Law Commission of India stated that anticipatory bail was coherent with the 41st Law Commission’s recommendations in paragraph 31 of its 48th Report (1972). While agreeing with the provision, the Commission emphasised that such power should only be exercised in exceptional instances. To prevent fraudulent petitioners from misusing the provision, the final decision granting anticipatory bail should be granted only after giving notice to the public prosecutor, and the initial order should be transitory. The Commission further added that the Section should specifically state that such an order can only be made after justification and if the court is convinced that doing so is necessary for the “interest of justice”. Section 447 of the Code of Criminal Procedure Bill, 1970, was modified slightly to become the legal provision for the granting of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973.
In the case of Amir Chand v. Crown (1949), the Punjab-Haryana High Court remarked that if a person who has been issued an arrest warrant but is not already in custody can appear in court and surrender himself, bail may be granted.
In the case of State v. Jagan Singh (1952), the Madhya Pradesh High Court acknowledged the idea that bail might be granted in anticipation to a person who surrenders before the court out of fear of being detained by the police for any cognizable offence.
The case of Balachand v. State of Madhya Pradesh (1976) was a landmark anticipatory bail case. It addressed several vital principles related to anticipatory bail. The Hon’ble Supreme Court imposed two conditions on the granting of anticipatory bail. The first condition was that the prosecution was allowed to object to the application for release, and the second condition was that the court must be satisfied that there were reasonable grounds to believe that the defendant was not guilty of any violation of any provision of the rules or orders made by the Central Government or the State Government. The Supreme Court ruled that Rule 184 only seeks to limit the exercise of the power to grant bail by stating that the court shall not release a person on bail unless the aforementioned two conditions are fulfilled. Section 438 of the Code contains the requirements set out in Section 437(1). It was followed because Section 438 immediately follows Section 437, and if these conditions were not implied in Section 438, a person accused of any non-bailable offence may get away under Section 438 by obtaining an order of anticipatory bail without establishing that he had reasonable grounds to believe that he was not guilty of any punishable offence.
Breakdown of the meaning of anticipatory bail under Section 438 CrPC
In accordance with Section 438, a person who anticipates being arrested may be granted anticipatory bail for non-bailable offences prior to a First Information Report (FIR) being lodged. When an individual is arrested, they must apply for regular bail or interim bail, depending on the situation. Anticipatory bail is the direction to release a person on bail even before arrest.
Conditions that may be imposed by the court while granting anticipatory bail
That individual makes himself accessible for questioning by a police officer when required.
That individual must provide the local police station with their current residence address, native address, and phone number.
That the individual will not offer any inducement, threat, or assurance to any person familiar with the facts of the case, directly or indirectly, to prevent him from disclosing such information to the court or any police officer.
That the individual will not leave the territory of India without prior authorization from the court.
Any other additional condition under Section 437(3) may be imposed as if the bail was granted under that Section.
In a landmark judgement, Gurbaksh Singh Sibbia & Ors. v. State of Punjab (1980), the Hon’ble Supreme Court ruled that an individual must have reasonable grounds to apply for anticipatory bail to apprehend the arrest and that “reason to believe” means the apprehension must be established on reasonable grounds and not just a mere “belief” or “fear”.
Power vested to the courts for granting bail for non-bailable offences under Section 437 CrPC
Section 437 addresses the circumstances under which bail may be granted in the case of a non-bailable offence. An accused or suspected person may be released on bail if they are charged with a non-bailable offence, are arrested or held without a warrant by a police officer, or appear in court before a court other than the High Court or Court of Session subject to the following conditions:
Such a person should not be released if there are substantial reasons to believe that he has committed an offence punishable by death or life imprisonment.
If the offence is a cognizable offence and he has previously been convicted of an offence punishable with death, life imprisonment, or imprisonment for seven years or more, or he has previously been convicted on two or more occasions of a non-bailable and cognizable offence, the court may direct that such a person be released on bail.
If the person is under the age of sixteen years, is a woman, is sick, or is infirm.
If a person is to be released on bail, it is determined that it is proper to do so for any other reason.
That the witness may be called upon to identify the accused individual during an inquiry and it should not be a sufficient basis for refusing to grant bail if he is otherwise eligible for bail and offers an assurance to comply with any orders made by the court.
At any point during the investigation, inquiry, trial, or as the case may be, if it appears that the accused has committed a non-bailable offence but there are adequate grounds for additional questioning by any officer or court into his guilt, or there are no reasonable grounds for believing, the accused shall be subjected to the provisions of Section 446A and, till the pending of such inquiry, the court or officer may decide to release the accused without sureties or on bail, depending on the circumstances.
A person may be granted bail under subsection (1) of Section 437 if the accused is suspected of committing an offence punishable by imprisonment for up to seven years or more, an offence under Chapter VI, Chapter XVI, or Chapter XVII of the Indian Penal Code, 1860 or by conspiring to commit, or abetting in the commission of, any offence. The court may impose any conditions as follows:
To ensure that such a person attends in accordance with the terms of the bond issued.
To guarantee that such a person does not conduct an act similar to the offence for which he is accused or suspected of committing.
In the interest of justice
When an officer or a court releases a person on bail under subsection (1) or subsection (2), they must record in writing the exceptional reasons for doing so.
Any court that has released a person on bail under sub-section (1) or (2) may, if it deems it appropriate, order that such person be arrested and confined into custody.
When the trial of a person accused of any non-bailable offence triable by a Magistrate is not addressed within sixty days of the first date fixed for taking evidence in the case, such person shall, if he is in custody during the entire period, be released on bail to the satisfaction of the Magistrate, with reasons to be recorded in writing or unless the Magistrate directs otherwise.
If the court believes that there are reasonable grounds to believe that the accused is not guilty of any offence at any time after the conclusion of a person’s trial for a non-bailable offence but before judgement is delivered, it shall release the accused, if he is in custody, upon his execution of a bond without sureties for his appearance to hear judgement delivered.
Cancellation of anticipatory bail under Section 439 CrPC
Section 439 deals with the extraordinary powers of the High Court or Court of Session regarding bail. A High Court or Court of Session has the power to order the arrest and custody of any individual who has been granted bail under Section 439(2). A High Court or Court of Session may order-
Any accused person of an offence who is in custody must be released on bail if the nature of the offence is stated in Section 437(3), or may impose any condition that it deems necessary for the purposes listed in that subsection.
(b) Any restriction that a magistrate imposed on a person’s release on bail may be lifted or changed, on the condition that the High Court or Court of Session notifies the Public Prosecutor of the application for bail and provides written notice of the reasons for doing so before releasing an accused on bail who can only be tried by the Court of Session or carries a sentence of life imprisonment.
In the case of Charu Soneja v. State (Nct Of Delhi) (2022), the Delhi High Court defined the difference between a dismissal of a bail application and a cancellation of bail. The Court has opined that it is within its discretion to dismiss a bail order for non-bailable offences. It can be rejected simply because of the nature of the offence and the possibility that the accused will abuse his or her liberty if granted. In the case of cancellation of the bail application, the court has the authority to rescind the previously granted liberty. The Court justified its conclusion by citing the case of Delhi Admn. v. Sanjay Gandhi (1978) and stating:
“The power conferred under Section 439(2) CrPC has to be exercised in a discreet fashion, without dwelling on the merits of whether bail should have been granted or not and only upon viewing the subsequent conduct of an accused. The power is coupled with the reserve and caution, akin to the usage of the High Court’s inherent powers given under Section 482 CrPC.”
Circumstances when anticipatory bail cannot be filed
In the case of Ramesh v. State (2022), the Karnataka High Court ruled that an accused person who appears in court, whether through a lawyer or in person, cannot seek anticipatory bail.
An individual who commits an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 cannot apply for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 as per the provision of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018, incorporated Section 18A, which clarified that it is not necessary to conduct a preliminary investigation before filing a First Information Report against a person, and the provision of Section 438 shall not be applicable under this Act unless any court passes any judgement, order, or direction. However, the Chhattisgarh High Court in the case of Jawed Khan v. the State of Chhattisgarh (2022) ruled that if the offence seems to be an abuse of the law, anticipatory bail can be granted. The Kerala High Court held in the case of K. M. Basheer v. Rajani K.T & Ors and Connected Cases (2022), that only the Special Court or the Exclusive Special Court established under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, can entertain applications for anticipatory bail. It further ruled that the High Court lacks both concurrent and original jurisdiction under Sections 438 and 482 of the Criminal Procedure Code to grant bail for offences under the aforementioned Act. The High Court’s appeal authority under Section 14A will apply to the decision of whether to grant or deny anticipatory bail.
Except in cases when the court is immediately persuaded that the charge against the defendant appears to be false or groundless, Section 438 discretion cannot be applied to offences with the punishment of death or life imprisonment.
How is anticipatory bail related to Article 21 of the Indian Constitution
Article 21 of the Indian Constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” It safeguards an individual’s freedom and liberty against unjustified detention and arrest, regardless of whether the person is an “accused,” thus upholding the principle of innocence until proven guilty. Anticipatory bail is a statutory right. Rights that are legislated, ordained, or bestowed by legislation are known as statutory rights. Anticipatory bail is the obligation to uphold the fundamental right to personal liberty in the event of false charges while adhering to the legal concept of “innocent until proven guilty”. The concept of anticipatory bail is one of the most significant defences of personal liberty.
In the case of Sangeeta Bhatia v. State Of Nct Of Delhi(2022), the Delhi High Court ruled that anticipatory bail has its roots in Article 21 of the Indian Constitution and that Section 438 of the Criminal Procedure Code establishes it as a statutory right.
In the case of Bhadresh Bipinbhai Sheth v. State Of Gujarat & Anr (2015), the Supreme Court determined that the provision of anticipatory bail is included in Section 438 of the Code of Criminal Procedure and is conceptualised under Article 21 of the Constitution, which pertains to personal liberty. Thus, Section 438 of the Code must be interpreted broadly in accordance with Article 21 of the Constitution.
In the case of Gurbaksh Singh Sibbia & Ors. v. State of Punjab (1980), the Hon’ble Supreme Court ruled that the legality of Section 438 must be assessed by the standard of fairness, which is inherent in Article 21.
Important case laws
In the case of Ankit Bharti v. State of Uttar Pradesh (2020), the Allahabad High Court held that although the High Court and Court of Session have concurrent authority, it is conventional to approach the Court of Session first and subsequently the High Court if the application is denied. Applications can be submitted directly to the High Court when the reasoning is solid, logical, and compelling.
In the case of Sushila Aggarwal v. State of NCT of Delhi (2020), the Supreme Court ruled that no time restriction may be placed while granting anticipatory bail and that it can last till the completion of the trial.
A Gujarat High Court Bench in the case of Shree Vikas Co.Op. Bank Ltd. v. State Of Gujarat (2022) outlined the law pertaining to the revocation of anticipatory bail has been presented in an illustrative and not comprehensive manner. The Court ruled that bail can be revoked if
The accused abuses his liberty by engaging in similar criminal activity.
Hampers the process of the investigation.
Attempts to interlope with evidence or witnesses.
Threatens witnesses or engages in similar activities that would impede a smooth investigation.
There is a risk of him fleeing to another country, or
Attempts to make himself scarce.
The Gujarat High Court asserted in the case of Mansi Jimit Sanghavi v. State of Gujarat (2022) that a person facing arrest can seek “transit anticipatory bail” in order to obtain time to approach the competent court with territorial jurisdiction in the matter, even though no FIR has been lodged.
The Allahabad High Court ruled in the case ofManish Yadav v. State of Uttar Pradesh(2022) that an anticipatory bail plea is permissible if a proclamation under Sections 82 and Section 83 of the Code of Criminal Procedure, 1973 is made against the accused after the plea is filed.
The Punjab and Haryana High Court stated in the case of Deen Mohd. v. State of Haryana (2022) that it is well-established law where a process is “ex debito justitiae,” which means “by reason of an obligation of justice”, the Court can dismiss an anticipatory bail based only on the insinuation that the defendant attempted to deceive the Court by withholding information.
In the case of Vijay Babu v. State of Kerala & Anr (2022), the Kerala High Court ruled that anticipatory bail applications can be allowed even if the accused is in another country.
Conclusion
The Hon’ble Supreme Court held in the case of State of Rajasthan, Jaipur v. Balchand @ Baliay (1977) that “Bail is a rule and jail is an exception“. Anticipatory bail has been used as a defence against unfair detention for persons wrongfully accused of crimes. The power of anticipatory bail must be exercised in exceptional instances when the courts consider the petitioner is being falsely charged. Furthermore, in addition to safeguarding the interests of the accused, anticipatory bail as a legal measure forbids the accused from abusing his freedom or evading justice.
Frequently Asked Questions(FAQs)
What is the distinction between bail and anticipatory bail?
A bail is issued upon an arrest, resulting in the release from police custody, whereas anticipatory bail is provided to a person apprehending or anticipating arrest. Anticipatory bail may be granted after lodging an FIR, but only before arrest.
When can an anticipatory bail petition be filed?
Anticipatory bail can be filed by an individual at the time of apprehension of arrest for the alleged commission of a non-bailable offence.
What is the time period of anticipatory bail?
Anticipatory bail will be issued until the trial is completed.
Who has the authority to grant anticipatory bail?
The power to grant anticipatory bail is vested to the Court of Sessions or the High Court under Section 437 of the Code of Criminal Procedure, 1973.
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This article is written by Rashmita Das, working as the legal editor with QuickCompany.in and has completed LL.M. in Business and Corporate Law from Symbiosis Law School, Pune.
It has been published by Rachit Garg.
Table of Contents
Introduction
The number of domestic patent filings surpassed the number of international patent filings in India during January- March 2022. Piyush goyal appreciated the efforts by the DPIIT for strengthening the patent system in India including the increase of patent filing by 50% in the last 7 years and five times increase in the patent granting during the same period.
The journey of the Indian patent system has its record since the pre-independence period in India – it started when the first patent law was passed in India the Indian Patents and Designs Act 1911. Replacing this Act, the Patents Act, of 1970 was passed in 1972. The Act was amended complying with the guidelines issued by the Paris Convention and the Patent Cooperation Treaty on 07th December 1998 and Budapest Treaty 2005 to introduce several developments including product patents in the pharmaceuticals and chemical industries.
What are the objectives of Patent Law in India
A patent is basically the right granted to an inventor or company in regard to a new invention, for its manufacture, sale, marketing and development. Indian Patent system allows registration when it complies with the following attributes:
Novelty of the Patent Subject
The primary goal of the patent law is to promote scientific studies, economic development and innovative technology. The most important consideration for the patent subject is to determine whether the invention relates to patentable subject matter which should be novel and unique in nature. Anything is patentable if it is not mentioned under sections 3 and 4 of the Patents Act 1970. The main patentability criteria are as follows: (a) Total Novelty: An absolute new invention which has no public disclosure yet in any country, or on any platform, is eligible for total novelty. (b) Value-Adding Invention: The invention should have an absolutely new value-adding attribute toward humanity and technology.
Inventive steps to ensure clarity
Section 2(j)of the Act defines the inventive step that the concerned invention should be unique and new even to the person skilled in the same field. To ensure the uniqueness of the invention, the patent search plays a pivotal role – is a procedure of determining if any similar or identical patent application has been filed, or already patented. The patent search in India is free of cost, and the result is obtained by entering either the title, description, applicant name, inventor name or application ID of the patent application and get the list of relevant patents along with their status, application ID, application year and invention field.
Filing for Patent application
The process of patent registration in India is filed using Form 1 attaching the required document, and information and authorizing the documents with the applicant’s signature. Next in Form 2, explain the nature and status of your invention, whether it is totally developed or partially. Through Form 2, the applicant obtains a provisional or complete patent based on its status, but if the provisional application is obtained, a time period of 12 months is granted to complete the invention and provide a final specification. If it is not completed on time, the patent application may get cancelled.
If the patent application is filed in any other country as well, the declaration should be made by using Form 3.
What are the amendments introduced tao the Patents Act, 1970
Year
Amendment
1972
Introduction of Patents Act 1970
1999
First Amendment introduced chapter IVA, granting exclusive marketing rights to the patent holder. In compliance with the TRIPS commitments, India has developed the policy of Exclusive Marketing Rights (EMR) under chapter IVA of the Act and maintains a mailbox system for five years or till the result of the application is published – accepted or rejected, whichever is earlier.Moreover, the provision of “pipeline protection” was introduced, which shall grant the applicant EMR on applying on and after 1st January 1995 in any of the countries that have been the signatory of the Paris Convention. If the applicant is eligible, the Patents Law in India shall grant EMR for five years or till the application is rejected or accepted, whichever is earlier.
2021
The Patents (Amendment) Rules, 2021 brought multiple changes in the process and manner of regulating the patent registration journey and rights involved in regard to the patent owner.The individuals working in an educational institution – students, teachers or professors, who discovered any patentable product during the course of their employment, shall enjoy a benefit of an 80% reduction on the patent fee. However, to enjoy such a benefit, the patent has to be applied in the name of the institution.
The number of categories of the patent is increased – Small and Medium Enterprises, Government Departments, Female applicants, Institutions established by a Central, Provisional or State Act, Government companies, Government aided company and applicants under the Patents Prosecution Highway
Another concept of Patent Prosecution Highway is initiated to accelerate the process of patent prosecution by sharing information between some patent offices.
The concept of compulsory licensing grants permission of using, manufacturing, importing and selling any patent invention. Such permission is granted by the Government authorities, not the patent owners. This license can be obtained only under extreme conditions such as a national emergency, or other circumstances of extreme urgency and anti-competitive practices.
What are the benefits of new development in Patent Law
Till April 2022, the Indian Patent Office received a total of 19,796 patent registration applications filed in 2022 alone, out of which 10,706 were filed by domestic applicants. The Union Ministry of Commerce and Industry, Consumer Affairs, Public Distribution and Textiles recognises this growth as the result of the efforts by the Intellectual Property Office and DPIIT for spreading awareness regarding the benefits of IP registration.
Not only towards citizens but the change is also brought towards the working procedure of the patent officials as well. The pendency of the patent application has also been reduced during the same period. Previously, the time for patent examination was around 72 months, which has been reduced to 5-23 months.
In the financial year 2021-22, the IP office granted 30,074 patents, which was previously 5978 in the financial year 2014-15.
India’s ranking in the Global Innovation Index has also improved to 46th rank in 2021 compared to 66th rank in 2020.
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This article is written by Shraddha Jain, a law student at the Institute of Law, Nirma University, Ahmedabad. This article seeks to cover various aspects of Section 306 IPC. The main focus of the article is to discuss various landmark and recent cases on abetment of suicide under Section 306 IPC.
It has been published by Rachit Garg.
Table of Contents
Introduction
An abetment is a process where there is a mental advancement towards inciting or deliberately assisting an individual in performing a specific act. Section 306 of the Indian Penal Code, 1860 (IPC) talks about the concept of abetment to suicide. Section 306 of the IPC provides punishment for an individual who has abetted, aided or instigated any person to commit suicide. According to this Section, the punishment for such an offence would be for a maximum period of ten years or a fine or both.
In order to convict an individual under Section 306 of the IPC, there must be a clear mens rea (motive) to commit the offence of abetment. Offences under Section 306 of the IPC are cognizable, non-bailable, non-compoundable, and triable by the court of sessions. There are various other concepts under this Section that courts have interpreted through various judgements. In this article, we will be dealing with those cases and their interpretation.
What is Section 306 IPC
Section 306 of the IPC talks about the abetment of suicide. Section 306 of the IPC says, “If any person commits suicide, then whoever aids and abets such suicide will be punished by imprisonment of either description for a period not to exceed ten years, and shall also be liable to a fine.”
Ingredients of Section 306 IPC
According to this interpretation of the Section, three main requirements must be met in order to convict (and penalise) an individual for aiding and abetting suicide under Section 306 of the IPC. These three prerequisites are as follows:
Commission of suicide
The deceased must have committed suicide, that is, they should have taken their own life (and not murdered by any other individual). In order to hold the accused guilty under this Section, there must be a commission of suicide. An unaccomplished attempt to commit suicide is not punishable under Section 306 of the IPC.
Instigation or abetment of such suicide
The accused should have encouraged or provoked the deceased to commit such suicide.
The Supreme Court clarified the term instigation in the case of Ramesh Kumar v. State of Chhattisgarh (2001), stating that “instigation is to encourage, ask forward, stimulate, invoke, or prompt to do a demonstration.”
In the case ofVijay Kumar v. State of Rajasthan (2018), it was determined that the term instigation means “to advise or make a decent effort to persuade someone to do something and to end up making an individual move all the more quickly or in a particular way.” To establish abetment, it must be demonstrated that the accused proceeded to encourage or irritate the deceased through words or insults until the deceased responded. Furthermore, the accused intended to incite, request, or urge the deceased to end it all while acting in the manner described above. The existence of mens rea is indisputably very important.
It was determined in the case of M.Mohan v. State Tr.Dy.Supdt.of Police (2011) that abetment contains a psychological interaction of provocation or intentionally assisting a person in doing something. The conviction cannot be backed up unless there is a favourable follow-up on the part of the convicted to stimulate or assist in ending the individual’s life.
Direct nexus
There must be a direct connection between the incitement and the committal of suicide. For example, in the case of Amalendu Pal @ Jhantu v. State of West Bengal (2009)It should also be noted that in cases of alleged suicide abetment, there needs to be evidence of either direct or indirect acts of incitement to the commission of suicide. Conviction under Section 306 of the IPC is not viable based solely on the accusation of harassment without any positive action on the part of the accused close to the time of the occurrence that led or forced the individual to commit suicide.
Scope of Section 306 IPC
Abetment is the mental evolution of purposefully inciting or assisting someone to perform an act. For convicting an individual under Section 306 of the IPC, there needs to be a clear motive to commit the offence of abetment. There should also be a direct act that prompted the deceased to commit suicide.
The Supreme Court ruled in M.Mohan v. State Tr.Dy.Supdt.of Police (2001) that there must be a close connection between the alleged person’s act and the deceased person’s choice to commit suicide. In the absence of a connection, it will be difficult to prove that the accused person stimulated the deceased person to commit suicide. As a result, abetment by a person occurs when the accused instigates or generates situations that force the deceased to commit suicide.
With the enactment of the Mental Healthcare Act, 2017, there have been several speculations that Section 309 of the IPC has been forced into oblivion or has been abolished or decriminalised already. However, this legislation does not repeal Section 309 of the IPC, instead, it narrows the scope of its application. Section 115 of the Act explicitly specifies that if a person tries to commit suicide, it will be assumed that he or she was under tremendous stress and that he or she would not be prosecuted or punished under Section 309 of the IPC.
Punishment for abetment of suicide under Section 306 IPC
According to Section 306 of the IPC, if any individual commits suicide, the person found to have aided in the commission of such suicide shall be punishable with imprisonment for a term that may extend to ten years or a fine or both. Section 306 of the IPC provides that offences are cognizable, non-bailable, non-compoundable, and triable by the court of sessions.
The word ‘suicide’
The term ‘suicide’ is not defined in the IPC. The Supreme Court stated in the case of M.Mohan v. State Tr.Dy.Supdt.of Police (2011) that the term ‘suicide’ stands for self-killing, i.e., ‘sui’ means ‘self’ and ‘cide’ means ‘killing.’ It is an act of ‘self-killing’ or ‘taking one’s own life,’ so an individual committing suicide must do so by himself, regardless of the methods he uses to accomplish his goal of killing himself. While suicide is not an offence in our country because the successful ‘offender’ goes outside the reach of the law, attempting to commit suicide is a crime under Section 309 of the IPC, though its scope has been severely restricted by the Mental Healthcare Act, 2017.
Abetment requires a high level of cruelty
The Delhi High Court observed in the case of Kaushal Kishore v. State of NCT of Delhi (2019) that the extent of cruelty required to establish abetment under Section 306 of the IPC would be greater than the extent of harassment and cruelty required to establish an offence under Section 498A of the IPC. It cannot be held that since an accused has been released from an offence under Section 306 of the IPC, the offence is automatically discharged under Section 498A of the IPC.
Mens rea under Section 306 IPC
The Bombay High Court stated in the case of Pramod Shriram Telgote v. State of Maharashtra (2018) that in order to convict an individual under Section 306 of the IPC, there must be a definite mens rea to commit the crime. It also necessitates an active or direct action that caused the deceased to have no other option but to commit suicide, and also that conduct should have been aimed at placing the deceased in such a situation that he committed suicide. The mens rea to commit the offence is a sine qua non for convicting an individual under Section 306 of the IPC.
Gian Kaur and her husband, Harbans Singh, were charged with aiding the suicide of their daughter-in-law. The trial court convicted both of them under Section 306 of the IPC and sentenced them to rigorous imprisonment for six years, with a fine of Rs. 2,000. If they were unable to pay the fine on time, they would be sentenced to a further 9 months of imprisonment. The matter went to the High Court of Punjab, which reaffirmed the trial court’s decision and lowered the sentence from six to three years in prison.
Issue of the case
The main issue raised in this case was: Whether Section 306 of the IPC is constitutionally valid or not.
Decision of the Court
The Supreme Court ruled that the right to life under Article 21 of the Constitution of India does not include the right to die. Sections 306 and 309 of the IPC are constitutionally valid. Abetment of suicide or attempted suicide is a separate offence that is observed even in nations where attempted suicide is not subject to punishment. Section 306 of the IPC can exist independently of Section 309 of the IPC because it creates a distinct offence. There is no reason to believe that Section 309 of the IPC is unconstitutional. The Court ruled that anyone who aids and abets another person in committing a crime will be held liable and penalised with rigorous imprisonment for up to ten years, a fine, or both.
In this case, during a conflict between the married couple, the husband told his wife, “You are independent to do what you want and go anywhere you want.” As an outcome of this comment, the wife committed suicide by pouring kerosene on herself and setting herself on fire.
Issue of the case
The main issue that was raised in this case was: Whether the act of the accused or the statement made by him encouraged the woman to commit suicide.
Decision of the Court
The Supreme Court determined that there was no evidence or material on record to support a conclusion that the accused instigated the deceased’s suicide. The entire circumstances addressed in this case, particularly the dying declaration and the suicide notes left by the deceased herself, fall for the evaluation under the expression “all the other circumstances of the case” mentioned in Section 113A of the Indian Evidence Act, 1872 and do not allow the assumption thereunder to be brought up against the accused. As a result, the accused deserved to be acquitted of the accusation under Section 306 of the IPC.
The Court analysed the term ‘instigation’ and asserted that in order to fulfil the requirement of instigation, although the exact words can be used for such a result, a rational surety to instigate the consequence must be spelt correctly out. A word uttered out of frustration or sentiment cannot be termed as an ‘instigation.’
The deceased in this case committed suicide by shooting himself using his licenced pistol. It was asserted that the deceased was a partner with the appellant in this appeal, as well as two other individuals, Jahuruddin and Mahavir Prasad, who were all involved in the business of real estate. The deceased committed suicide as a result of the issues caused by these three individuals; the deceased left behind one suicide letter mentioning that there were some financial transactions between them, and therefore, these three individuals aided the deceased in his suicide. The trial court was convinced that there was enough evidence in the documentation to charge all three defendants. The appellant filed a revision petition with the High Court of Delhi after being dissatisfied with the phrasing of the charge. As previously stated, the High Court refused to intervene in the order establishing the charge.
Issue of the case
The main issue that was raised in this case was: Whether mental torture aids in the commission of suicide under Section 306 of the IPC.
Decision of the Court
The Supreme Court determined that the appellant had mentally tormented the deceased and aided him in committing suicide by the stated act of psychological torture and therefore had committed an offence punishable under Section 306 of the IPC.
The Court held that the accused must have intended to instigate, incite, or promote the commission of an offence. Each person’s tendency to commit suicide is distinct, as is each person’s concept of self-esteem and self-respect. Furthermore, there is no straightforward method for dealing with suicidal situations, and each case must be evaluated based on its particular facts and circumstances.
If the offender’s activities or persistent course of conduct generate such conditions that the deceased person is left with no other choice than to commit suicide, then the accused will be liable under Section 306 of the IPC. To verify that the accused aided the commission of suicide by an individual, it must be established that:
The accused continued to frustrate or harass the deceased with words, actions, or deliberate omissions or behaviour.
That the accused wanted to boost the deceased’s desire to commit suicide by behaving in the manner described above is, undoubtedly, mens rea, a required component of incitement.
Amalendu Pal @ Jhantu v. State of West Bengal (2009)
The judgement of Amalendu Pal @ Jhantu v. State of West Bengal (2009) is as follows:
Facts of the case
The appellant, Amalendu Pal, and the deceased, Dipika, married in 1977. Two sons were born from the marriage. The appellant was living in Kolkata because of his employment and earnings. During his time in Kolkata, the appellant had an extramarital affair with a lady named Anita. The deceased became aware of the appellant’s contact with Anita, and the deceased opposed such illegitimate relationship. The appellant requested permission from the deceased to marry Anita, which the deceased declined. As a result, the appellant began tormenting the deceased both emotionally and physically. The deceased was allegedly induced by the appellant to end her life by taking poison.
Issue of the case
The main issue that was raised in this case was: Whether the harassment caused to the victim had induced her to commit suicide and end her life.
Decision of the Court
The Supreme Court held that there must be evidence of either direct or indirect actions of instigation to the conduct of suicide in situations of alleged abetment of suicide. Conviction under Section 306 of the IPC is not feasible based solely on an accusation of abusive behaviour without any positive action on the part of the accused at the time of the incident that prompted or forced the individual to commit suicide.
To bring an action under Section 306 of the IPC, there needs to be a case of suicide and in the commission of the suicide, the person who is alleged to have supported and encouraged the commission of suicide should have taken an active part through the conduct of provocation or by performing a specific act to assist the commission of that offence.
The appellant was married to the deceased and the couple had a son (around 2 years) and a daughter (8/9 months). Based on the prosecution case, the deceased was mistreated after marriage because she did not bring an adequate dowry. Even though no charge of aiding and abetting was filed against the husband, the trial court ruled that he could be found guilty of instigating his wife’s suicide under Section 306 of the IPC.
Issue of the case
The main issue that was raised in this case was: Whether the appellant is responsible for creating an environment in the marital home that led to the deceased’s suicide.
Decision of the Court
The Supreme Court stated that neither the Trial Court nor the High Court considered whether the appellant had mens rea to commit the offence for which he was found guilty. They predicated the conviction on the principle that a young woman with two small children decided to commit suicide as a result of abusive behaviour in a matrimonial home, which was not backed by the evidence presented in the case. To convict a person under Section 306 of the IPC, there must be a clear mens rea to commit the offence.
In the case of Amalendu Pal alias Jhantu v. State of West Bengal (2009), it was held that a conviction under Section 306 of the IPC is not feasible based on a simple accusation of abuse without substantiation of favourable conduct proximate to the time when it occurred on the part of the accused that led to the person who has committed suicide.
The Supreme Court overturned the Trial Court’s and Punjab and Haryana High Court’s verdicts, holding that the result that the deceased was pushed to commit suicide by the instances or environment in the marital home was merely an implication, lacking any material support, and could not be used to maintain the appellant’s conviction under Section 306 of the IPC.
A class 9 child was under intense mental stress since the appellant (the GEO, PTI sir) had tormented and humiliated him in front of everyone therefore he refused to attend school on April 25, 2018 but was convinced to do so by his family. The boy was notified that his parents had been called to school the next day, which added to his stress and anxiety. On April 26, 2018, the child committed suicide.
Issue of the case
The main issue that was raised in this case was: Whether the scolding of the teacher is regarded as an abetment to suicide.
Decision of the Court
The Supreme Court said the disciplinary actions accepted by a professor or other school administration reprimanding a student for his misconduct would not amount to inciting a student to attempt suicide. Unless there are frequent accusations of abusive behaviour and insults without any reasonable motive or cause.
As a result, if a student is merely reprimanded by a professor for just misconduct or misbehaviour and that act of indiscipline is brought to the notice of the principal of the school, who communicates to the student’s parents for school discipline and tries to correct a child and any student who is extremely emotional or sentimental decides to commit suicide, the said professor cannot be held responsible for the same and cannot be charged and tried for the offence of abetment of suicide under Section 306 of the IPC.
To constitute an accusation of abetment of suicide under Section 306 of the IPC, there needs to be an accusation of either a direct or indirect act of incitement in the commission of the crime of suicide. The simple accusation of harassment of the deceased by another individual cannot be adequate in itself unless there are accusations of such actions on the part of the accused that forced the commission of suicide.
Roshan Bee, the wife of the deceased, went back to her parent’s home one day due to a marital dispute. After 12 days, the deceased poisoned himself and left four suicide letters at his house because the accused, the parents of the wife, refused to send his wife and daughter with him, and as a consequence, they are to be held responsible for his death. Shabbir Hussain, the deceased’s brother, filed a complaint against the respondent under Section 306 of the IPC.
Issue of the case
The main issue that was raised in this case was: The fundamental question, in this case, was whether simple harassment amounted to aiding suicide under Section 306 of the IPC.
Decision of the Court
The Supreme Court ruled that simple harassment does not constitute an abetment of suicide charge under Section 306 of the IPC. The Court continued by stating in the case of Chitresh Kumar Chopra v State (Government of NCT of Delhi) (2009) that abetment occurs when one individual incites someone else to do something and that the incitement can be implied when the accused has established circumstances where the deceased has had no option but to commit suicide as a consequence of his or her acts or omissions.
The Court rejected the appeal, observing that the claim made was that the deceased had been harassed by the accused, but there was no other information on record to show abetment.
The petitioner lived in the United States of America. The petitioner contacted M/s Palli Motors, which was owned by the deceased, through email and expressed a sincere desire to acquire a vintage motorcycle. The deceased responded to the email with a price quote for the motorcycle. It was claimed by the applicant that, despite having transferred the entire purchase price of the vintage motorcycle to the deceased, the deceased failed to hand over ownership of the vintage motorcycle to the petitioner. After around two years of making the payment, the petitioner travelled to India and filed a case. After that, the petitioner returned to the United States. After three to four days, the deceased committed suicide, leaving behind a letter that blamed the petitioner in this matter for his decision to end his life.
Issue of the case
The main issue that was raised in this case was: Whether the petitioner’s issuing of a legal notice and lodging of a complaint constituted an ‘abetment to commit suicide’ punishable under Section 306 of the IPC.
Decision of the Court
According to the Delhi High Court, in order to acknowledge any of the petitioner’s acts as an abetment, there must be a significant correlation as well as the proximity of his actions to the deceased who committed suicide. The Court concluded that it may be possible that the deceased may have felt annoyed and therefore committed suicide after considering the facts and circumstances of this case. The petitioner cannot be held liable for aiding the deceased in committing suicide. The petitioner had the legal right to issue a legal notice and register a complaint, as instructed by his counsel. As a result, the petitioner’s filing of a criminal complaint against the deceased cannot be deemed as an act of mens rea to provoke or cause the deceased to commit suicide.
The accused were charged with defrauding the deceased of Rs. 2,35,73,200 and, as a result, the deceased, who was in severe financial distress, was forced to commit suicide. In a petition brought by the accused under Section 482 of the Code of Criminal Procedure (CrPC) 1973, the Gujarat High Court quashed an FIR under Section 306 of the IPC submitted against the accused in light of a settlement between the accused named in the FIR and the complainant- a cousin of the deceased. The application made by the wife of the deceased to have the judgement recalled was also denied.
Issue of the case
The main issue raised in this case was: Whether the High Court has power under Section 482 of the CrPC to quash the FIR filed under Section 306 of the IPC on the basis of settlement.
Decision of the Court
The Supreme Court ruled that an FIR under Section 306 of the IPC (abetment to suicide) cannot be quashed under Section 482 of the CrPC on the grounds of a settlement. Grave or heinous crimes that are not private in nature and have a significant effect on society cannot be quashed through a settlement between the accused and the complainant and/or the victim itself. The Bench began by noting that the crime of aiding and abetting to commit suicide under Section 306 of the IPC is a serious, non-compoundable offence.
Conclusion
Abetment of suicide under Section 306 of the IPC occurs when someone commits suicide after being prompted or aided to do so by someone else. The applicability of this provision is limited to only three main categories i.e., the commission of suicide, instigation or abetment of such suicide and direct connection between the incitement and the committal of suicide. The accused are often seen to easily avoid the penal rules relating to such offences. As a consequence, the rules associated with the allegation of abetment must be revised so that offenders are unable to dodge the laws, modify cases to fit their own interests, and escape punishment.
Frequently Asked Questions (FAQs)
What is the nature of the offence under Section 306 IPC?
The nature of the offence under Section 306 of the IPC is as follows:
Cognizable offence;
Non-bailable offence;
Triable by the court of session;
Non-compoundable.
What are the essential elements of Section 306 IPC?
the accused’s intention to assist, incite, or abet the deceased’s suicide.
Can we get bail under Section 306 IPC?
Section 306 of the IPC is the abetment of suicide and is a non-bailable offence. Therefore the accused cannot seek bail as a matter of right under this section. It is at the discretion of the court. According to Section 437 of the CrPC, the court will examine some factors prior to granting bail such as the essence and gravity of the offence, the nature of the evidence, circumstances, reasonable suspicion of witness tampering, the general public’s interest, etc. You can also file a petition in the sessions court for anticipatory bail and if the court refuses such a plea, you can then file a petition in the High Court for anticipatory bail.
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This article has been written by Raksha Yadav, studying BBA.LL.B at ISBR Law College, Bangalore. The article describes Article 50 of the Indian Constitution in detail, which deals with the separation of the judiciary from the executive in public services.
India is a democratic country, and democracy has three organs, i.e., the legislative, executive, and judiciary. Every organ has its own powers and functions to perform. The legislature drafts the laws and ordinances, the executive implements those laws and ordinances, and the judiciary protects the laws and safeguards the rights of individuals. To have smooth and efficient functioning of the nations, it is required that each organ functions according to its authority. The Indian Constitution provides provisions under Article 50 on the separation of powers. It states that the state must take the necessary steps to separate the judiciary from the executive in the public services of the state. It will restrict the authorities’ unfair use of their power or positions and promote the democratic form of government. Article 50 is a part of the Directive Principles of State Policy (DPSPs) under Part IV of the Constitution. It states that no government organ interferes or intervenes with the functions and core powers of the other organs.
Background of separation of powers under the Indian Constitution
Nowadays, the democratic setup is based on the doctrine of the separation of powers. But earlier, there used to be kings who ruled over their kingdoms and had all the powers vested in them. The concept of separation of power was discussed by Aristotle in his book ‘Politics’. According to this, every Constitution must include three organs of the government: deliberative, public officials, and judicial departments. The Roman Republic Government also adopted the principle of checks and balances in the country.
In the 17th century, after the advent of the English Parliament, a British politician, John Locke, also stated three forms of organs in his book ‘Two Treatises of Government’ from a different perspective. He explained in his book that all three organs do not have independent authority or power. According to him, legislation has the supreme authority, and the executive or federative functions are exercised by the monarch. John Locke did not consider all three branches equal.
In the 18th century, a French lawyer named Baron de Montesquieu meticulously theorised the word “trias politica” or the idea of separation of powers. He emphasised the judicial branch’s independence more than most philosophers. He explained that the judiciary must have an actual nature rather than being ostensible and that no one organ or person should execute the functions of every other organ to protect personal freedom.
A point must be noted that this theory was first propounded by Montesquieu as early as 1747 via his book, namely ‘Esprit des Lois’ (The Spirit of the Laws). Montesquieu observed that if all the power is concentrated in the hands of an individual or a group of people, it results in a tyrannical form of government.
Meaning of separation of powers
The term ‘separation of powers” describes the form of government in which the executive, judiciary, and legislative have separate domains of power and authority. Every democratic country follows the doctrine of separation of power. It distributes the powers and functions between the three organs of the government. According to this doctrine, each organ performs its functions without interference from other organs. It is a kind of system of checks and balances that means legislation makes the laws, the executive implements the law, and the judiciary reviews the law. Thus, the legalisation cannot review the laws, the executive cannot make the laws, and the judiciary cannot implement the laws. To ensure that each organ works independently, the doctrine of separation of power was implemented. Not every country follows the doctrine strictly, like the United Kingdom (UK). The UK Constitution (mostly unwritten and uncodified document) includes a provision for the separation of powers to maintain checks and balances between the three organs of government. However, there is still some interfering behaviour on the part of one branch of government with the other.
The countries that have written Constitutions, like India and the United States of America (USA), implement the doctrine in a rigid manner rather than a strict manner. The United States has a presidential system of government, and the doctrine of separation of powers is the foundation of the US Constitution.
The constitutional status of the separation of powers
In India, the doctrine of separation of powers is not applied strictly. Apart from Article 50, the other provisions that substantiate separation of powers are as follows:
Article 123 of the Constitution states that the President can exercise his executive powers under certain conditions.
Article 121 and Article 211 of the Constitution provide provisions for the separation of legislation from the judiciary. It states that legislation cannot discuss the conduct of judges of the Supreme Court and high courts.
Article 122 and Article 212 of the Constitution say that the courts can not inquire about the proceedings of the legislature.
Article 361(4) of the Constitution separates the judiciary from the executive. It states that no court may hold the President or any governor of any state responsible for actions or misconduct committed while carrying out or exercising their official duties.
Significance of separation of powers
The separation of powers is required to protect against putting the power into one hand, which might create nepotism, maladministration, or corruption. This is the mechanism to divide the core functions and powers among the legislature, executive, and judiciary. It is essential in a democratic country. The primary purposes of the separation of powers are as follows:
It protects against excess and abuse of power by an individual or an authority.
It will protect society from the state’s arbitrary, illogical, and dictatorial powers.
All people have their freedoms preserved, and each work is given to the proper government agencies to carry out its related duties effectively.
Each organ of government has its functions and duties granted by the Indian Constitution, and they are expected to carry out their duties within their limits.
The separation of power among the organs of government prevents any one branch from becoming excessively centralised and subject to arbitrary decision-making.
It maintains the balance among all the organs of the government.
It aims to enhance the effectiveness of the government and allows it to perform its core functions independently.
Elements of separation of power
One organ cannot hold all the authorities and functions necessary for the nation’s functions to be carried out effectively. As a result, each organ must carry out its duty in a systematic manner. Legislative, executive, and judicial organs each have their own set of duties and responsibilities. Below is a detailed explanation of each organ.
Legislation
Every country needs laws and regulations to govern itself efficiently. The legislation is the organ of the government which enacts or makes the laws and frames policies for the nation or state. It is also called the rule-making body. Under the Indian Constitution, the legislation includes the Parliament and the State Assembly. The Indian Parliament has two houses: Lok Sabha (the lower house) and Rajya Sabha (the upper house); whereas, the state assembly has Vidhan Parishad (the upper house) and Vidhan Sabha (the lower house). The executive and judicial organs cannot function in implementing and reviewing the law unless and until the legislature frames the law. It is the body composed of the elected representatives of the people, and it represents public power and opinion throughout the nation. It also has the authority to amend or repeal existing laws and regulations. The judiciary functions as an advisory body for legislation, therefore it can make recommendations to the legislature about the formation of new laws and the amendment of existing laws, but it cannot carry out those recommendations. Apart from enacting laws for the nation, it also controls the budgets, executive, or council of ministers. The legislation elects the President, Vice-President, and can impeach the President of the country.
Executive
Another important organ of the government is the executive body. The executive is responsible for implementing and enforcing the laws of the state and country after they have been passed by the legislative branch of the government. The President, the Prime Minister, and the state governors are part of the executive. In the parliamentary form of government, there are nominal executives and real executives. The President is the nominal executive and has executive power granted by the Constitution. But the President is bound to take the advice from the Council of Ministers, and these powers are exercised by the Ministers. Hence, the real executive is the Prime Minister and the Council of Ministers.
The executive includes the political executive and the permanent executive. The political executive or ministers are the heads of the state and executive departments. The ministers are elected by the people of the country for a tenure of five years and are responsible for their actions toward the public. These political executives are temporary as they are appointed for a certain period. It is replaced in every election. Ministers must run for reelection after serving one term. Only when their party returns to power as the majority party will they be able to serve as ministers once more.
The permanent executives (non-political executives) are the civil servants who do not belong to any political executive. They work for governmental departments and are responsible for the day-to-day activities of the government and maintaining peace and order in the state. These executives serve their services till the age of their retirement. They are organised hierarchically into higher and lower relationships and get regular, fixed salaries.
The executive performs the functions of implementing the laws or policies in the state and makes such appointments as the President appointing the Chief Justice of India and the judges of Supreme or High Courts. The executives are also responsible for defending and preserving the integrity and unity of the country.
Judiciary
The judiciary is the branch that reviews the laws enacted by the legislature. It protects the rights of every citizen of the country, administers justice, and settles disputes. The judiciary comprises the Supreme Court, high courts, district courts, and all other lower and subordinate courts. The decisions made by the Supreme Court or High Courts are binding on all the subordinate courts. The judiciary only interprets and applies current laws, it does not make new laws.
The judiciary is the only body that has the power to intervene and provide a decision in cases of conflict between the Centre and the state, between the state and its citizens, or between the states. All governmental and private bodies are bound to comply with the decisions passed by the judiciary. The Indian judiciary defends the Constitution, protects human rights, and promotes unity and peace. It acts as a check and balance on the government’s legislative and executive organs.
The main functions of the judiciary are to review and administer the laws, protect against the infringement of fundamental rights and violations of the Constitution, and the higher court supervises the decisions passed by its subordinate courts. The Supreme Court in India also serves as an advisory body. On constitutional issues, it may offer its expert advice as per the provision of Article 143 of the Constitution. In certain cases when there is no specific law or precedent for the disputes, the judge, based on their experience and common sense, makes decisions that are called judge-made laws. This is referred to as the doctrine of ‘stare decisis’, meaning ‘stand by the decision’. It makes courts follow previously settled cases to decide the current issue.
Relationship between the organs of the government
The organs of the government have their own functions and powers to run the government, and no organ is allowed to interfere in the functions of others. But the organs have relationships among themselves, which are discussed below:
Relationship between the legislature and the judiciary
In the parliamentary form of government, the legislation makes and enacts the law for the nations, and the judiciary interprets the law and safeguards the rights of the citizens of the nations. The judiciary has the power to declare any law unconstitutional. The legislation can oppose judicial activism and frame the law to overrule certain decisions.
Relationship between the legislature and the executive
Under the parliamentary system, the legislation monitors the functions of the executive, and the executive is the branch of the state that is collectively responsible for the legislation. If the executive loses the confidence of the legislature, it will be dismissed before its tenure is up. The legislature makes the laws and the executive implements those laws in the nations. In the presidential form of the government, the executive is not answerable to the legislature.
Relationship between the executive and the judiciary
The judiciary is an independent body in a democratic government. The executive appoints the judges, and there is an indirect link between the executive and the judiciary. The President and Governor have the power to pardon and reprieve the punishment. The judiciary can review the actions of the executive and can also declare them unconstitutional if they are void.
Judicial overreach
The term ‘judicial overreach’ means the interference of the judiciary in the domain of other organs of the government. The judiciary’s interference in the functions and powers of the legislature and executive is against the doctrine of separation of powers, and it is the practice of misusing the power granted by the Constitution. It creates conflicts between the organs of the government.
Impact of the doctrine of separation of power
The main aim of the separation of powers is to maintain the check and balance system among all three organs of the government. History demonstrates how a monarchy can be established by a central power while the rulers or leaders control the people. Therefore, it is preferable to divide the powers among the authorities by their areas of responsibility rather than centralising the power. According to Lord Action, “Power corrupts, and absolute power tends to completely corrupt.”
The doctrine of separation of powers eliminates monarchy or tyranny and holds the government accountable to the people for its acts. It guarantees justice and safeguards human rights. The operations of each government entity are monitored by the others while staying separate from one another.
Landmark cases related to the separation of power
Gurdial Singh S/O Jagat Singh v. The State (1956)
In this case, it was observed that Article 50 provides provisions that the state shall take necessary steps to ensure that the executive and judicial bodies are kept separate in the state’s public services.
Kesavananda Bharati v. the State of Kerala and Anr (1973)
It was held that the Parliament can not amend the basic structure of the Constitution. The Supreme Court observed in this case that the Indian Constitution does not incorporate the doctrine of separation of powers in its rigidity, as it does in the United Nations Constitution, but it does anticipate some degree of such separation. One of the elements upon which the system of checks and balances rests is the judicial review expressly granted under Article 226 and Article 32 of the Constitution.
Indira Nehru Gandhi v. Shri Raj Narain & Anr. (1975)
In this case, it was said that the Constitution’s basic structure or core element is the separation of powers and that the judiciary must decide any dispute concerning the adjudication of legal rights.
Union of India v. Sankal Chand Himatlal Sheth (1977)
The Supreme Court in this case said that Article 50 is the directive principle of state policy and the state has to keep the judiciary separate from the executive in the public services. Therefore, it emphasised the necessity of protecting the judiciary from executive interference.
Supreme Advocate on Record Association & Anr. v. Union of India (1993)
In this case, it was observed that Article 50 is one of the nation’s core governing principles and is enshrined in the Constitution. The government is legally obligated to refrain from interfering in judicial selections and to limit its involvement to solely formal or ceremonial functions, ensuring that the wishes and preferences of the judicial family will always prevail.
P.Kannadasan Etc. Etc v. State of Tamil Nadu & Ors. Etc. (1996)
In this case, it was held that when the legislature enacts any law and it becomes invalidated on the ground that the legislature has no competent authority, then the court’s judgment cannot overrule or repeal it. The legislation is free to alter the law as per the judgment. The new law can not challenge the court’s judgment. This is a checks and balances system in a government that incorporates the separation of powers in its.
Conclusion
The doctrine of separation of powers gives freedom to each organ of the government. It protects a person’s right to be free from arbitrary rule and bans organs from taking over the essential functions of other organs. The three organs of the government are the legislative, executive, and judicial organs and cooperation or coordination between the three organs is crucial for the efficient operation of the government. DPSP (Directive Principles of State Policy) includes Article 50 of the Indian Constitution. It imposes requirements on the state that the judiciary and executive organs have independent authority over the state’s public services. The separation of powers restricts the centralization of power.
Frequently Asked Questions (FAQs)
Which provisions of the Indian Constitution speak about judicial review?
The basic structure of the Constitution is the backbone of the Constitution. In the Constitution, the term ‘basic structure’ is not defined. It says that the Parliament can not amend the basic structure of the Constitution. In the Kesavananda Bharati v. Union of India (1973) case, the Supreme Court held that the basic structure of the Constitution can not be amended. The separation of powers was also held to be a basic structure of the Indian Constitution.
What do checks and balances mean?
It is a system that prevents any government body from misusing its authority. The checks and balances prevent one organ from acquiring excessive power.
What is the difference between the judiciary and the executive?
The executive body of the government is responsible for formulating and carrying out policies and laws, whereas, the judiciary has been given the authority to review these policies and laws.
References
J.N. Pandey, Constitutional Law of India, Central Law Agency, 56th Edition, 2019
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In today’s technologically advanced culture, Intellectual Property has always played a crucial role. The lengthy process of granting a patent involves several reviews of the invention’s novelty, non-obviousness, and industrial viability.
A government-issued patent gives an inventor the exclusive right to produce, make use of, and sell his invention. This exclusive right is granted for a brief 20 years window starting on the filing date. The main goal is to preserve developed inventions and so promote further advancements.
Patent filing in India
Intellectual property attorneys frequently struggle with the question of whether to submit a patent application as soon as feasible or to wait and gather more evidence. Anticipatory prior art can be avoided by filing an application “early”, however, if the application is filed too early, the applicant runs the risk of having it rejected during the examination due to a lack of supporting documentation.
It is a race to obtain the earliest priority date when filing for a patent. As a result, patent applications are frequently submitted with supporting information that does not necessarily fully describe the invention.
In India, a person must either be the “genuine and first inventor” of the invention or an assignee, legal agent, or successor in order to be qualified to submit a patent application. According to Section 6 of the Patents Act of 1970, there is an eligibility requirement for those who submit a patent application in India.
According to Section 6 of the Patents Act of 1970, a patent application may be submitted by the true and original inventor, his assignee, both alone or together with any other person.
Documents required while filing patent
The material and documentation needed to submit a national phase or convention application are listed below:
Complete Specification
Drawing
Name, address and nationality of inventors
Name, address and nationality of applicants
Power of attorney
Assignment Deed or Application Form
Details of corresponding applications filed in other countries
Verified English translation of the Priority Application
Verified English translation of the PCT application
Certified copy of the priority application if requested by the Controller
Sequence listing in computer-readable text format
Depending on the information provided by the applicant on the invention, a patent application may either contain a provisional specification or a complete specification. When the inventor lacks sufficient knowledge about the invention and requires more time to gather further experimental data, a provisional specification is used. Regarding sufficient disclosure in a provisional specification, the Intellectual Property Act is silent. A complete specification must be submitted within 12 months following the preliminary specification’s filing date, according to the Indian Patent Office. Within a year, this best practice may be modified. Provisional specifications are submitted to obstruct a prior priority date.
Disclosure in specification
The different conditions to be satisfied in terms of sufficient disclosure in the event of a comprehensive specification are provided by a combined interpretation of Section 10 of the Act and Rule 13 of the Patent Rules, 2003. According to Section 10(4) of the Act,
The complete specifications shall-
To claim protection for an invention, a document must:
Fully and particularly describe the invention, its operation or use, and the method by which it is to be performed;
Disclose the best method of performing the invention that the applicant is aware of;
End with a claim or claims defining the scope of the invention; and
Be accompanied by an abstract that provides technical information on the invention.
It is difficult to add fresh or extra details once a full specification has been submitted to the IPO. After filing, only a limited number of minor typographical mistakes or revisions (within the bounds of the original disclosure) may be remedied by submitting a request to the IPO using Form 13 and paying the applicable costs. As a result, it is important to include every piece of the necessary information in the comprehensive specification at the time of filing. The Patent Examiner/Controller of the IPO has two options if the information supplied in the patent specification is insufficient: they can object to or reject the patent’s issuance.
Data generated after filing may nevertheless be provided during prosecution where it is not feasible to incorporate all significant data at filing.
Post-filing data
Data obtained after the application has been filed can be utilised to demonstrate creative steps (non-obviousness), for instance, unanticipated outcomes, commercial success, or lengthy but unmet requirements. The applicant must demonstrate a connection between the evidence of non-obviousness and the claimed invention in order for it to be taken into account as an “inventive step.” Cases are discussed below where the Court has spoken about “inventive step”.
Case laws
In two instances, the issue of using post-filing data to demonstrate inventive steps was specifically raised at the level of the Intellectual Property Appellate Board (IPAB), and in both instances, the IPAB interpreted the Patents Act, 1970 to prohibit the use of such data to demonstrate inventive step. A patent is cancelled if the invention is proved to be apparent, according to the Patents Act of 1970, and this decision cannot be changed by relying on any additional considerations, the IPAB decided after reviewing the submissions in support of post-filing data.
In AstraZeneca AB & Anr. v. Intas Pharmaceutical Ltd., AstraZeneca possessed Patent ‘147, which was issued on March 15, 2007, and had a priority date of October 12, 1999, as the genus patent. The specie patent, Patent ‘625, has a priority date of 20.05.2002 and was issued on July 9, 2009. While Patent ‘147 expired on February 2, 2020, Patent ‘625 is still in effect as of May 15, 2023.
AstraZeneca filed a lawsuit seeking a permanent injunction against the manufacture and sale of any medications containing the substance DAPA because the Defendant firms wanted to produce and market medications containing the molecule.
In addition, the terminal disclosure submitted by AstraZeneca in the USPTO was evidence of admission that DAPA was protected by the genus patent owned by them, in the US. The defendants fought the lawsuit on the grounds that the patent lacked inventive steps.
Further, the Delhi High Court provided advice on the admissibility of post-filing data in support of innovative steps while debating whether to grant an interim injunction while the matter was awaiting trial. The Court made the initial observation that post-priority date evidence provided by plaintiffs via an affidavit to establish technological advances can only be taken into consideration to confirm the existence of technical effects stated in the specification of the patent that is capable of being understood by a skilled person having common general knowledge. This observation was made in accordance with the precedent of Generics (UK) Ltd. v. Yeda Research & Development Co. Ltd., (2017) EWHC 2629 (Pat) (U.K.), which was relied upon by the Defendants to dispute the validity of the patent-in-suit for lack of inventive step. According to the Court, this evidence cannot be used to demonstrate this effect’s first-time use. The Single Judge noted that the plaintiffs had not been able to establish, at least in the interim, that such a technical impact existed in the specification. The plaintiffs’ claim that the examiner should have been aware of the inventive step issue, or, that the Court might still be presented with technical advance evidence at this point fails to take into consideration the clear language of Section 64(1)(f) read with Section 2(1)(ja) of the Patents Act, 1970 (India). The court noted that the defendants are allowed to argue that there was no demonstrable technical development as of the patent’s priority date in support of their objection.
In the IPAB case, it was determined that the extra evidence, together with the data in the specification, was sufficient to disprove the hearing objections, reversing the Controller’s decision to deny the application. The Delhi High Court declined to accept the new information in the latter instance as evidence of an “inventive step,” noting the absence of such information in the original specification.
When deciding whether to accept the post-filing data, an IPO examiner normally takes into account whether there is a connection between the data revealed in the as-filed application and the post-filing data. If the post-filing data are significantly different from the disclosure made in the specification, or if there is a gap or lack of a connection between the data and the disclosure in the specification, the examiner will probably decline to analyse the post-filing data. It is possible to convince the patent office to accept the said data if the data is to show the accuracy of the disclosure made in the specification and thereby establish that the results indicated therein were unexpected and not taken into account in the prior art references cited by the patent office.
One contentious alternative for filing as soon as possible to avoid losing exclusivity is to disclose experimental data after the application has been published, either during the examination stage or throughout the opposition process. This alternative, however, is not available in all jurisdictions, and it is vital to bear this in mind while seeking international protection.
This choice, for example, is quite limited in China. Post-application data filing is permitted in the United States, Japan, Korea, and Canada under specific conditions. In other words, the criteria vary per jurisdiction.
When all relevant material cannot be included at the time of filing, data generated after filing may nevertheless be provided during prosecution. Examiners are more ready to accept post-filing data when the inventive step of the claims is considered rather than the adequacy of disclosure (written description and enablement). Balancing the need to file early to avoid prior anticipatory art with the necessity to file an application with adequate support to prevent rejections necessitates considerable analysis and preparation on the part of a company’s research and development, clinical, and legal teams. Understanding how post-filing data is treated in different countries is critical for developing a comprehensive and efficient worldwide patent strategy.
Conclusion
Recent decisions from the IPAB and Delhi High Court allow reliance on post-filing facts to overcome objections or to present proof of the invention’s superior merits.
Regarding the conditions in which such post-filing material should be taken into consideration, there is still some ambiguity. Such information often has to fall within the claimants’ purview. In the best-case scenario, applicants are urged to reveal at least some technical impact data, experimental efficacy data, and/or comparable examples in the specification. The specification should be written so that the technical impact may be deduced from the disclosure even in the absence of such experimental evidence at the time the specification is filed.
Moreover, striking a balance between filing the patent application as quickly as feasible and including all possible evidence to establish the inventive step required to secure the award is difficult.
In either event, it is critical to tell the patent attorney in charge of preparing the application of all conceivable technological consequences (proved or not) of an invention, even if proof supporting them has not yet been received. This will have a significant impact on obtaining optimum worldwide protection for innovation.
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This article has been written by Ayush Tiwari, a student of Symbiosis Law School, Noida. This article aims to provide you with all the information regarding a legal notice for recovery of money which includes, its scope, how to file it, its correct procedure, and other formalities to be fulfilled in filing such notice.
Sometimes disputes wind up in court, but you can notify the other party beforehand with legal notice that legal action will be taken against them in case the issue is not resolved at ground level. On several occasions, a person may consider taking legal action against someone or something as a result of some disagreements. Giving legal notice for money recovery is essential before pursuing any legal action against the other party. By delivering such notification, the party who was wronged makes sure that the demand notice was delivered to the party that provided the justification, but the money was not given to the aggrieved party. Additionally, the wronged party has a specific cause of action for a legal remedy because of the unpaid recovery of such money in court. One must include all the details that led to any such dispute in the legal notice.
What is a legal notice
Sending a legal notice is an initial step in the legal process, and it can also be said that the foundation of practically all legal actions in India is a legal notice. Legal notices are professionally written documents that are sent by the aggrieved party, who might be a person or an entity. It is delivered to warn the receiver of anything that has harmed the sender as a result of the recipient’s actions or inactions. A legal notice lays forth the facts and alerts the receiver to a potential court case, which would be filed if the sender’s complaint goes unmet.
An individual or an entity may get a legal notice notifying them of the potential legal action that may be brought against them. The notice is issued with sufficient time for the party to reply. It acts as a final warning to the recipient and, if disregarded, might result in formal legal procedures.
When is one required to send a legal notice for recovery of money
When a person’s misconduct prevents the owed amount from being retrieved, serving a legal notice to the offending party is the first step in recovering the money.
The legal notice’s significance can also be inferred from the possibility that it will act as a warning to the receiver of the notice that might have, either deliberately or accidentally, caused a problem for the sender. Also, most cases are settled at the early stage of delivering a legal notice to recover money. However, if no decision is made, one can approach the court to pursue a legal remedy to retrieve the unpaid money. A legal notice must demonstrate that you have made a sincere effort to settle the conflict on your own behalf before you submit a complaint to the appropriate court.
Scope of legal notice for recovery of money
This applies to:
Every case involves promissory notes and bills of exchange.
The claims in which the plaintiff tries to recover money that has been paid to the defendant
Such claims must be supported by evidence of a written agreement or legal provision.
A response to this order shall be filed with the Supreme Court, the civil court, or such other court as the Supreme Court may notify.
Documents needed for a legal notice for recovery of money
When preparing a legal notice for money recovery, these relevant documents must always be carefully examined:
Affidavit of evidence of money owed or loaned to a friend, relative, etc..
An employment contract that specifies the amount your company is to pay you in exchange for your service if money is to be recovered from the employer.
Additional supporting documentation that you might use to support your case in a dispute relating to the recovery of money.
The time period for filing a suit for the recovery of money
In India, there is only a three-year window in which one can file a civil recovery claim after the cause of action has arisen. A lawsuit filed after the statute of limitations has passed will not be considered. The grounds for obtaining the exemption must be indicated if the case is filed after the limitation period has passed.
Where should a suit for recovery of money be filed
The ‘jurisdiction’ for filing a lawsuit can be determined by considering the place or area from which the defaulter resides, as well as the pecuniary limit over which the Honourable Court may exercise its authority.
Territorial jurisdiction
The most important factor to consider when bringing a case against a defaulter is whether or not the defaulter is located within the court’s jurisdiction. The geographical parameters of a court’s power are clearly stated and listed under this form of jurisdiction. As a result, the Court is not permitted to assume or exercise any authority outside of its jurisdiction.
where the defendant (the money defaulter) resides,
where the defendant operates a business or earns money,
where the action’s cause is found (completely or in part).
Pecuniary jurisdiction
The word ‘pecuniary’ has a financial connotation. This kind of jurisdiction aims to determine whether a court of law can hear cases involving that kind of money or quantity. For instance, the pecuniary jurisdiction of the civil courts of Delhi is up to 20 lakh rupees, and above that, it will come under the jurisdiction of the high court. Before beginning the process of bringing a case, the territorial jurisdiction must be considered first, then the pecuniary jurisdiction.
Statutes under which a case can be filed against the defaulter
The Code of Civil Procedure, 1908
The most common method of collecting money is to file a summary lawsuit, as required by Order 37 of the CPC. An important type of law in the hands of a prospective plaintiff who wishes to contest a civil suit is Order 37 of the CPC. The suit can be decreed in two steps in accordance with Order 37. One is in Rule 2(3) stage and the other is in Rule 2(6).
The process for the defendant’s attendance is outlined in Rule 2(3) and must be completed within 10 days after the defendant is served with the summons. After making an appearance, the plaintiff serves the defendant a summons for judgment within ten days of the date of service, accompanied by an affidavit that verifies the nature of the claim, the amount sought, and the absence of any defences, in the plaintiff’s opinion.
According to Rule 2(6), if the defendant does not request permission to defend, either (a) the plaintiff will be granted an immediate judgment, or (b) the Court may order the defendant to provide such security as it might consider appropriate. According to sub-clause 7, if adequate justification is shown, the delay in making an appearance or in requesting leave to defend the case may also be excused.
Therefore, we may conclude that all a plaintiff needs to establish is that their case fits under the purview of Order 37. Once a summons has been issued, it is up to the defendant to establish his entitlement to his right to defend. If this is successful, the Order 37 suit converts into a regular civil suit, and the defendant is then instructed to submit his written statement within 30 days.
The Negotiable Instruments Act, 1881
When a cheque is drawn to fully or partially satisfy a debt or other obligation, and the bank disburses the cheque, Section 138 of the Negotiable Instruments Act, 1881, states the criminal and civil penalties associated with the dishonour of the cheque. In the event that the cheque is not honoured, the drawee’s bank will send a ‘Cheque Return Memo’ describing the cause of non-payment to the drawee’s bank.
The memo and the dishonoured cheque are subsequently given to the drawee by the bank of the drawee. If the drawee thinks the cheque will be honoured if provided a second time, he or she must submit it once again within 3 months of the cheque’s date. However, the drawee has the option to sue the drawer if the cheque bounces.
The purpose of Section 138 of the Act is to penalise the person who intentionally draws a cheque with no intention of cashing it and causes it to bounce. In the case of a dishonest drawer of a cheque, Section 138 of the Act also imposes criminal penalties in addition to civil liability.
The Indian Contract Act, 1872
Section 73 and Section 74 of The Indian Contract Act, 1872 may be used to seek compensation for loss or damage brought on by a breach of contract if a person commits fraud under Section 17, misrepresents under Section 18, or is unable to carry out his or her obligations because of a serious liquidity crisis and possible insolvency. The fundamental idea behind Section 73 of the Indian Contract Act is to evaluate a party’s contractual actions and/or inactions in order to determine the amount of compensation owed to the non-defaulting party as a result of the other party’s nonperformance in terms of putting the non-defaulting party in the same position financially as it would have been if the contract’s promise had been kept. As a consequence, the compensation usually corresponds to the expectation that follows from the fulfillment of the contractual promise.
The Indian Contract Act of 1872, however, qualifies the general principle by stating that in order to be eligible for damages, a loss or damage must have resulted from the breach in the ordinary course of events, or the parties should have been aware that such a loss or damage might occur later when they entered into the contract.
The Indian Penal Code, 1860
The Indian Penal Code (IPC), 1860, provides a variety of provisions that offer remedies to those whose money has been overdue for one reason or another.
The IPC has the following provisions that may be used in certain circumstances:
Cheating (Section 415): A person is responsible for cheating if they force another person to give any property to them by fraud or deception. The maximum penalty for cheating is a year in jail, a fine, or both.
Criminal Misappropriation (Section 403): When someone dishonestly uses another person’s property for their own use, it is considered a criminal misappropriation. The penalty is up to two years in jail, a fine, or both.
Criminal Breach of Trust: (Section 405): When someone dishonestly misappropriates or converts another person’s property for their own benefit, it is considered a criminal breach of trust. Criminal misappropriation and criminal breach of trust are the same, but in this case, the person is entrusted with the property.
The Companies Act, 2013
Under the Companies Act, 2013, a case may be filed if the defaulter is a company. Cases under this can take the form of class actions, in which a certain group of people sue on behalf of a particular class and file a case to recover debts owed to them, or they might include businesses where payments are owed as per a contract.
When a firm fails to distribute dividends to investors against the earnings, the investor may seek compensation by bringing a Section 127 contract enforcement case.
When a third party with a connection to the company complains to the Serious Fraud Investigation Office, Section 212 comes into play. This is another option for filing a petition for winding up.
When a creditor to a business is unable to collect their debts and there is a breach owing to the firm’s non-payment, the creditor may file a petition for winding up under Section 272. In addition, a lawsuit may be initiated under Sections 447 and 451 to hold any office of the company accountable for fraud or unjustified property withholding.
Various instances where recovery of money arises
Recovery of money from employees
If an employee flees with the money, a civil investigation will be launched and a show-cause notice will be sent to the employee’s home address. If an employee doesn’t respond after receiving two or three of these letters, disciplinary action will be taken against them in accordance with the organisation’s normal procedures or service regulations. This is done in order to provide the employee with an opportunity to refute the accusation that he/she is running away. One can move forward with serving an employee with a legal notice for the purpose of recovering money if it is established that they have left your organisation. According to the law, if the employee doesn’t explain or defend himself, legal actions will be taken against him. The employer is entitled to get his money back from the employee upon establishing the employee’s wrongdoing.
Recovery of money from the employer
When an employer offers a position to an employee on a salary basis, the individual has an entitlement to provide notice for the recovery of unpaid wages if the company is not able to pay the salary. An employee is required to follow specific processes, such as filing a complaint with the Labour Commissioner. Additionally, they may file a case against the employer in accordance with the provisions of the Industrial Dispute Act, 1947 and the Payment of Wages Act, 1936, among other laws.
The employee may not have been covered by labour law in several situations. To seek financial restitution from the company, he may bring a summary suit in accordance with the terms of Order 37 of the Civil Procedure Code, 1908. A complaint may also be made under different provisions of the IPC and Section 447 of the Companies Act by an employee who loses or is denied pay due to the fraudulent activities of the company.
But for all of the reasons mentioned above, we should be aware that before pursuing any legal action, the employee must first write a legal notice to the employer or firm requesting the return of his lost earnings. The business has the same options as before, including accepting the legal notice’s content or responding in denial.
Recovery of money from tenants
When one provides property as rent, and the tenant does not at all pay rent. The property owner then has the right to recover the funds that the renter owes. According to the provisions of the lease or rental agreement, the landlord may serve legal notice to collect his money if the tenant is unable to pay the rent amount.
The landowner can also recover the rent by bringing a case for particular non-performance of the contract, which is controlled by the Specific Relief Act, 1963, and the Contract Act, 1872, as a means of recovering money from the tenant.
Recovery of money from dealers
In the business world, supply, demand, and the delivery chain all contribute to robust and prosperous company sectors and economies.
To manage business operations, this chain has been designed to use distribution and dealerships. As part of this procedure, the distributor and dealers provide deposits in the form of post-dated or advance cheques for assurance.
The cheques given by the parties occasionally bounce throughout this economic cycle because of a lack of funds, a stop payment, or for any other purpose. The cheque holder is then entitled to reclaim his money, and he may do so by sending a legal notice or a demand notice within 30 days of the date on which the bank provided the return memo for the bounced cheque. In furtherance, under Section 138 of the Negotiable Instruments Act, 1881, the drawee has 15 days to file a case against the drawer if delivering a legal notice to recover payment proves ineffective.
Money recovered from a friend
When you lend money to a friend or member of your family, you try to ensure a secure transaction. For security reasons, you create the loan agreement or the promissory note in this manner. And if they don’t fulfil it in accordance with the conditions of the contract, you can pursue them for the money you are owed.
You can issue a legal notice to reclaim the money for that process. If that is unsuccessful, you may file a money suit or a summary suit per Order 37 of the Civil Procedure Code, 1908.
Legal notice for the purpose of recovering loan
Due to the severe mess that loan defaulters are making in India’s economy, the government has recently taken drastic steps to recover the funds that have been distributed through debt.
Every state establishes the Debt Recovery Tribunal to handle debt-related matters, and the initial stage entails submitting a legal notice for debt recovery to banks or other financial organisations. The debt recovery tribunal actively participates in finding a solution to the debt recovery issue. All of these judicial authorities have worked independently to establish debt repayment methods.
Contents of a legal notice for recovery of money
The contents of a legal notice are:
The legal notice needs to be properly and specifically written on the advocate’s letterhead.
It should include the advocate’s address and phone number(s).
The legal notice must include the recipient’s name, address, and contact information as well as the date on which it was issued.
The client’s name and contact information should be included because the legal notice for the money recovery is coming from the client.
In the notice, it must be made clear how the other party’s action or inaction violated one’s rights and what remedy the individual is seeking as a result.
The message should be written in simple, understandable language.
In order for the opposing party to comprehend what transpired from his perspective, the legal notice’s content must be broken down into paragraphs.
The opposing party must be given a clear directive and a deadline.
Both the advocate and the sender must acknowledge the notice (along with the date).
How can a lawyer assist in creating a legal notice for recovery of money
It is suggested that one employs a lawyer since serving a legal notice is the initial stage of any case involving recovery. To prepare such legal notices, a lawyer is required due to their skills, expertise, and understanding. The lawyer will be able to gather crucial details for the clients and prepare the notification appropriately. He or she will make sure that one is taking the proper steps to pursue justice. All legal documents can be efficiently managed by a lawyer. Therefore, it is crucial to hire a knowledgeable lawyer to ensure that your legal notice for recovery is delivered appropriately, taking into account the potential litigation that may follow.
What should a person do if they receive a legal notice
After receiving a notice, the following considerations should be made:
Reading the notice carefully: To fully comprehend the problem and issues brought up by the sender, it is crucial to carefully read the legal notice. One can start the talk if they believe there is a chance of reaching an amicable resolution to the conflict.
Coming into contact with an advocate: It is always essential to speak with a competent advocate.
Briefing the advocate: The next crucial step is to give your side of the story to him, outlining the relevant dates, details, and incidents so that he can compose a suitable response, thus, outlining your side to the sender.
Sending the response: After drafting a response to the notice, it is submitted through registered mail or courier, and the post office receipt is maintained. The advocate retains a copy of the legal notice and the response for use in future communications.
Format of a legal notice
Ref. No……… Dated [Date of the notice creation]
REGD.A.D.
LEGAL NOTICE
To,
[Name of the debtor]
Dear Sir,
Pursuant to the instructions from and on behalf of my client [name of the creditor], through its ___________, I do hereby serve you with the following Legal Notice: –
1- That my client is a [type of company] firm under the name and style of M/s [name of the creditor].
2- That my client is engaged in the business of [production/manufacture/supply/other nature of business] of the [product/service] etc.
3- That against your valid and confirmed order, my client did your job work from time to time on a credit basis, as you have a running credit account in the account books of my client operated in due course of business.
4- That my client-raised bills for each and every piece of work performed for payment, although you have acknowledged the receipt of such bills raised by my client.
5- That in spite of acknowledging the liability of payment of the principal balance of Rs. [principal balance]/- you have miserably failed to make payment of the said amount due to my client from you deliberately with mala fide intent. Hence, you are liable to pay the said principal balance amount of Rs. [principal balance]/- along with interest @ [interest rate]% p.a. from the date of due till the actual realisation of the said sum, as is generally and customarily prevailing in the trade usages, which comes to Rs. [total amount]/-
6- Thus you are liable to pay the total amount of Rs. [total amount]/- to my above-named client, and my above-named client is entitled to recover the same from you.
7- That my client requested you several times through telephonic messages and by sending a personal messenger to your office for the release of the said outstanding payment, but you have always been dilly delaying the same on one pretext or the other and so far have not paid even a single paisa out of the said outstanding undisputed amount.
I, therefore, through this Notice finally call upon you to pay my client Rs. [principal amount]/-. along with future interest @ [interest rate] % p.a. from the date of notice till actual realisation of the said amount, together with a notice fee of Rs. [notice fee]/- to my client either in cash or by demand draft or Cheque whichever mode suits you better, within clear 15 days from the date of receipt of this notice, failing which my client has given me clear instructions to file civil, criminal., suit for recovery and other Misc. proceedings against you in the competent court of law and in that event, you shall be fully responsible for the same.
A copy of this notice has been preserved in my office for record and future course of action.
([Signature of the advocate])
Conclusion
The most important action before initiating a lawsuit is issuing legal notices since it may result in a settlement outside of the courtrooms. A legal notice’s success is based on the lawyer’s writing abilities and the seriousness of the information included in it. Legal notice may pave the way for discussions between the parties, saving the parties the time and resources spent on court proceedings.
Frequently Asked Questions (FAQs)
Is legal notice necessary for a recovery action?
Yes, one must issue a legal notice in India before bringing a claim for the return of your money under the Indian Penal Code or a civil suit. A legal notice is used to inform people that criminal or civil charges will be brought against them.
What is the function of a legal notice?
A formal written notification between two parties is known as a ‘legal notice.’ The sender informs the receiver of his plan to file a lawsuit against the latter through a legal notice. A legal notice also aids in informing the recipient of the sender’s concerns.
What will happen if we ignore the legal notice?
The repercussions of not responding to a notice is not an offence per se, but one must provide the pertinent facts and defence arguments for the record. If no answer is sent and the sender files a case, the court may draw a negative conclusion against the defaulting party.
What format does a legal notification use?
Notices must always be sent in writing, clearly indicate the purpose for sending them, be signed by the relevant party or his authorised representative, be dated, and be directed to the person who will be affected by them.
What are your options if a relative owes you money?
It might be awkward to ask a friend or a member of your family for their money back, but sometimes you have to move quickly since it’s the last minute. Confronting them one-on-one and reminding them frequently should be the initial steps. You may always submit a legal notice if they still don’t pay you back and you want to take legal action.
What is the time restriction for bringing a lawsuit for money recovery?
The lawsuit may be brought within three years following the emergence of the cause of action.
When someone owes you money, how do you file a case?
Under Order 37 of the CPC, which permits the lender to launch a civil suit, the lender may always seek to recover money owed to them by a defaulter through a promissory note or a loan agreement.
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Sweat equity shares are those shares which are issued by a company to its employees for their valuable work for the company. It is an incentive or reward companies give to their employees to keep them motivated. According to section 2 (88) of the Companies Act, 2013, Sweat Equity shares are those shares that a company issues to its directors or employees at a discount or for a consideration other than cash. In India, sweat equity shares issued by unlisted companies are governed by Section 54 of the Companies Act, 2013, along with the Companies (Share Capital and Debentures) Rules, 2014. For the listed companies, before August 2021, share-based employee benefits and the issue of sweat equity were governed separately by the SEBI (Share Based Employee Benefits) Regulations, 2014 and SEBI (Issue of Sweat Equity) Regulations, 2002 (hereinafter referred to as the previous regulations). On August 13th, 2021, the Securities Exchange Board of India (SEBI) came up with a new regulation, the SEBI (Share Based Employee Benefits & Sweat Equity) Regulation, 2021(new regulation), which was a consolidation of the previous two regulations. This article tries to compare the previous regulations and the new regulation and tries to analyse how the new regulation has been refurbished to ease compliance and accommodate changing dynamics of business.
Widened scope of an “employee”
One of the most significant changes brought about by the new regulation is in the definition of “employee.” Unlike the previous regulation, as per regulation 2(i) of the new regulation, the definition of employee does not include permanent employees. It simply includes employees as designated by the company, working in India and outside India, and the directors of the company. It explicitly includes non-executive directors in the scope of employees, unlike the previous regulation.
As per the new definition of employee, all the listed companies can provide share-based benefits to their employees or any employee of a group company, its subsidiary or associate company, or any employee of the holding company as well. Further, the employees covered by Joint Ventures are also eligible for the benefits. The rationale behind including employees of Joint Ventures is because of the definition of the term “associate” as per Section-2(6) of the Companies Act, 2013, which includes joint ventures in it.
Furthermore, from chapter IV of the new regulations, the sweat equity regulations have been added, and regulation 29 defines employees for the chapter. In this definition, unlike the previous regulation for sweat equity, the scope of employment has been increased by omitting the permanent employee from it. Furthermore, unlike share-based benefits, sweat equity benefits can be provided to independent directors because they are not expressly prohibited from receiving them.
The omission of “permanent employee” from the definition of employee has also allowed companies to provide share-based benefits and sweat equity to their contract-based employees, gig employees, freelance employees, etc.
Change in the scheme implementation route
Another significant change which has been made in the regulation is regarding the implementation of the scheme. According to Regulation 3 (1) of the new regulation, the company may switch the route of implementation of the scheme from through a trust to directly implementing it through the company or vice versa. If during the implementation the company wants to change the route, and if the prevailing circumstances warrant such a change, then it shall get prior and fresh approval from the shareholders by a special resolution. Such a detour shall not be detrimental to the shareholders’ interests.
In the previous regulation, companies did not have the privilege of changing the route of implementation immediately before the implementation of the scheme. The new rule gives the company the chance to look at the current situation and choose the best way to put the plan into action.
The Compensation Committee
In the new and previous regulations, there is a mandate for the formulation of a compensation committee for the administration and supervision of the scheme if the scheme is being implemented by the company and not by the trust. The compensation committee shall include members of the Board of Directors as per regulation 19 of the SEBI (Listing Obligation and Disclosure Requirement) Regulation, 2015 (SEBI(LODR)). The previous regulation had a mandate to constitute a compensation committee, which had members of the board of directors as provided in Section 178 of the Companies Act, 2013.
In India, listed companies are governed by the SEBI (LODR) and, as per regulation 19, a listed company has the mandate to constitute a Nomination and Remuneration Committee (NRC). To ease the complaints, the new regulation explicitly mentions and allows the NCR to be designated as the compensation committee.
Utilization of excess monies
Regulation 8 of the new regulation states that the excess money in the trust should be used in the event of the winding up of the scheme having been implemented by the company. According to the previous regulation, any excess funds remaining in the trust must be used to repay loans or distributed to employees based on the compensation committee’s recommendation. In addition to that, the new regulation also recommends the transfer of excess funds to other schemes under the same regulation, subject to prior approval from the shareholders.
According to the regulation change, the trust funds are intended for the benefit of employees. A change has been made to ensure the funds benefit the employees and are not used for any other purpose.
Secretary of state audit report
In both the regulations, there is a mandate for all the companies implementing any scheme under the regulation to provide an audit report to the shareholders at every general meeting, to show that the schemes are being implemented in accordance with the regulation and the resolution.
To end the ambiguity Regulation 13 of the new regulation explicitly mentions that an audit report has to be obtained only from a Secretarial Auditor. The rationale behind mentioning only the secretarial auditor is that the secretarial auditor is more familiar with these laws and regulations. Further, a secretarial auditor also has a mandate under the SEBI (LODR) Regulation to furnish a secretarial audit report annually.
Sweat equity and the laws governing it
The issue of sweat equity, as per the previous regulation, was governed by section 79A of the Companies Act, 1956. It was interesting to see that until August 2021, the issue of sweat equity was governed by a law that was repealed back in 2013. But with the new regulation, the issue of sweat equity will be governed by section 54 of the Companies Act, 2013.
Shares of equity
The previous regulation did not regulate the quantum of issue of sweat equity shares. As per Regulation 31 of the new regulation, no listed company can issue more than 15% of its existing paid-up equity share capital in a year. At no time shall the issue of sweat equity share capital exceed 25% of the paid-up capital of equity shares. Also, the company listed on the Innovator Growth Platform (IGP) can issue no more than 15% of its paid-up equity share capital in a financial year and not exceed 50% of the paid-up equity and only for 10 years from the date of incorporation of the company.
Lock-in period
A lock-in period in any share or convertible debt instrument is unappealing, especially when it lasts three years. According to the previous sweat equity regulation, there was a lock-in period of 3 years for sweat equity holders. With the new regulation, the sweat equity shall be locked in for a period specified for preferential issues in the SEBI (Issue of Capital and Disclosure Requirements) Regulation, 2018 (ICDR Regulation).
As per the latest amendment in Regulation 167 of the ICDR Regulation, any sweat equity held by any promoter or promoter group shall have a lock-in period of 18 months and any employee other than the promoters shall have a lock-in period of 6 months.
Conclusion
The new regulation is not just a consolidation of the previous regulations for share-based benefits and sweat equity; it is also an attempt to rationalise the previous regulations from both the perspective of the company and the employees. For example, an audit report, particularly from a secretarial auditor, mentioning the quantum of shares to be issued, changing the governing law for the issue of sweat equity, and reducing the lock-in period are steps towards rationalising the regulations. As part of the changes made to reduce unnecessary compliance on the part of the company, NRC will be allowed to serve as a compensation committee, the scheme implementation route can be changed according to current circumstances, and new businesses listed on the IGP will be permitted to issue sweat equity up to a maximum of 50%. On the other hand, widening the scope of employees and allowing the use of excess money in other share-based benefit schemes are some of the changes that are made for the well-being of employees.
A small drawback with regards to the definition of employee has attracted a lot of attention. It is imperative to understand that the share-based benefits are available only to those employees who are recognised as employees by the company for the scheme. Though the scope of employees has been widened, it does not compel the company to consider any contract-based employee or a gig worker under the scheme.
With the advent of the gig economy in India, the debate for their rights has spread from the common people to the Supreme Court of India and to the Parliament. The present amendment is also a step taken by the regulators to cater the growing gig economy. But it is imperative to understand that the change in the regulation is only for the listed companies. The Companies (Share Capital and Debentures) Rules, 2014 still recognises employees as “Permanent Employees”. But the gig economy is equally rampant in the unlisted companies as well. The very purpose of providing equal rights to the employee remains unfulfilled if there is a distinction in the definition of employees on the basis of companies being listed or unlisted.
Allow notifications
