The National Committee on Accreditation (NCA), evaluates legal advisors worldwide certifications prior to permitting them to practice in Canada. NCA declared that law degrees acquired in India will be respected as equivalent to those procured in the UK and Australia.
“The National Committee on Accreditation (NCA) has concluded that three-year full-time regulation degrees from common law nations like India, England, and Australia ought to be considered equally regardless of where they were earned,” Vern Krishna, the NCA’s active leader chief had expressed. “It’s a significant reduction in the passage of obstructions to the legal profession.”
Law degrees from Bangladesh, Hong Kong, Ireland, New Zealand, Nigeria, Pakistan, Singapore, the United States, Wales, and the West Indies are all treated equally by the NCA, in addition to those from India, Australia, and England. Notwithstanding the way that a critical obstruction to the entrance for Indian legal professionals desiring to work in Canada has been removed, all foreign-trained lawyers must still pass qualifying tests in six topics as well as bar exams in order to be qualified to practise.
To speed up the credential assessment and job market integration processes for newcomers, the federal and provincial governments are actively striving to build a national framework for international credential recognition.
Who is a Canadian Permanent Resident
A person who has been awarded PR status by the Canadian government is known as a Canadian PR. If you have PR status, you will be able to legally reside in Canada. However, you will not be a Canadian citizen. A Canadian PR has the following advantages:
They receive free medical treatment;
They can avail high school diploma, a college diploma, or a university diploma;
They are eligible for a financial aid programme for university and college students in Canada by OSAP who live and work in the country;
They get legal and constitutional protection under Canadian Law and the Charter of Rights and Freedoms.
A Canadian PR cannot:
Vote for a politician or a political party;
Consider running for a position in the government;
Hold certain jobs that necessitate a high level of security clearance;
Stay in Canada if you have been convicted of a criminal offence and ordered to leave the country;
You can only spend a limited amount of time outside of Canada;
To keep your PR status, you must live in Canada for at least 730 days or two years every five years.
Benefits of becoming a Canadian Permanent Resident
A Canadian PR can:
Legally reside and work anywhere in the country and are not obligated to work for a single employer in a single province or territory. They can readily migrate to another province.
They are welcome to bring their family. The family members will be able to live, study, and work in Canada.
Social Assistance Eligibility- as a permanent resident of Canada, one is eligible for a variety of social security benefits, including pension payments if one has 40 work credit points.
Can seek to become a Canadian citizen after living in Canada for three years in the previous five years.
Documents required to apply for a PR Visa
You’ll need to write papers based on the characteristics for which you’re claiming points, as well as, other documentation:
Letters of Employment Experience
Identity verification
Transcripts of Education
Report from the WES (Qualifying)
‘Valid passport’ scorecard for IELTS
Medical certificates are necessary, as well as a police clearance certificate.
How to apply for Canadian PR : step-by-step guide
Complete the evaluation of your educational credentials (ECA)
Get the required IELTS score
Create an Express Entry profile and use the online pool to submit your application
Register for a Job Bank account (optional)
Fill out an application for the Provincial Nomination Program (optional)
Obtain your Invitation to Apply (ITA)
If necessary, medical and criminal background checks will be conducted
You will get confirmation of your PR status from Citizenship and Immigration Canada (CIC)
Finally, get your visa stamped in your passport
Major immigration programs that allow Indian lawyers to apply for a Canadian PR Visa
If you received your law education from a foreign educational institution, you must submit your credentials to the NCA (National Committee on Accreditation) for review. You will be required to take the NCA exam after the assessment. You can request a Certificate of Qualification after meeting the NCA requirements, which can be applied to enter the Bar Admission Process.
By registering a profile on the National Accreditation Committee, Indian lawyers must have their degrees evaluated by the Federal Law Society (FLSC). The same applicants must pay the requisite fee of CAD 410 and request that their transcripts be sent to the FLSC by the university from which they graduated. Before applying for a Certificate of Qualification (COQ), NCA can take up to ten exams.
After passing the NCA challenge exam or completing the LLM programme, the candidate can apply for a Certificate of Qualification (COQ) and register with the bar of their choice. Before applying for an internship post, the individual must first register with a bar. The bar must also grant permission for the legal practice to offer an internship job. It is required by the bar, which stipulates that in order for an article to be valid, a standard agreement between the cabinet and the article must be confirmed.
Candidates must submit their certificate of experience to the Bar after completing the term and can then apply for the Bar test, which is held three times a year.
The major immigration programs for Indian lawyers allowing applicants to apply for Canadian PR Visa are as follows:
Express Entry Program
Express Entry is one of the most significant ways for Canada to welcome newcomers. The fast-track immigration option, which was established in 2015, can grant you permanent residence in Canada, possibly within eight months. Express Entry aims to make the immigration procedure for candidates easier and faster. While Express Entry is not an immigration programme in and of itself, it is a system used by Citizenship and Immigration Canada (CIC) to select candidates for immigration to Canada through the following programmes:
An Express Entry applicant must submit the following documents:
The results of the English test (IELTS) (discussed below)
Report from the Educational Credential Assessment (ECA) to show that they have the same degree of education.
Step 1: Create an online Express Entry profile and fill it out
Candidates fill out a profile expressing their desire to immigrate to Canada and reside there permanently.
The applicant’s skills, work experience, education, language proficiency, and other personal information will be included in the profile. The Comprehensive Ranking System will be used to rank those who meet the criteria of one of the programmes listed above. Candidates who do not yet have a job offer or a provincial nomination must register with Canada’s national Job Bank. The information submitted in the profile must be true, as giving fraudulent or erroneous information may prevent an applicant from re-entering the Express Entry pool for a period of time.
Step 2: Invitation to Apply for Permanent Residence in Canada (ITA)
Employers across Canada, as well as Citizenship and Immigration Canada, will have access to the individuals in the Express Entry pool. Candidates with the top rankings, as well as those who have received job offers or provincial nominations, will be encouraged to apply for permanent residence. Candidates who receive an invitation letter must submit their paperwork within 60 days of receiving it. Successful candidates, their spouses, and/or dependent children will be granted permanent residency in Canada once the processing period is completed.
Candidates who do not receive an invitation to apply within 12 months may resubmit their profile and reapply if they still fulfill the requirements.
Federal Skilled Worker Program (FSWP)
The Federal Skilled Worker Program (FSWP) is your best option if you are an Indian lawyer seeking permanent residence in Canada. The FSWP is a point-based immigration route that requires a score of 67 out of 100 on the CRS points calculator. Age, education, work experience, language proficiency, adaptability, spousal sponsorship, and a valid job offer from Canada are all elements that determine how many points are awarded.
There are six major elements that will determine your admissibility for Canada. PR
Age: If you’re between the ages of 18 and 35, you wiill get a maximum of 12 out of 12 points.
Education: A doctorate-level degree will get you a maximum of 25 points. For the education factor, the better your degree, the more points you get.
Work Experience: If you have 6 or more years of skilled work experience, you can get up to 15 points for it.
Language Proficiency: Score a maximum of 28 points for the language proficiency criteria by performing well on your language test.
Adaptability: If you have a sibling or a close family who lives in Canada, you can get an extra ten points.
Education/Employment: Your former schooling and employment experience in Canada, as well as those of your spouse/common-law partners, are taken into account.
Job Offer: A job offer in Canada that has been approved by the LMIA can help you earn an extra ten points.
In addition, you must meet the following FSWP requirements:
Within the last ten years, a minimum of one year of verified non-overlapping continuous full-time paid employment – defined as NOC skill category 0, A, or B.
Attain a minimum score of 7 on the Canadian Language Benchmark (CLB).
Have an Education Credential Assessment-backed minimum degree, certificate, or diploma for a post-secondary school (ECA).
Proof of funds indicating that you and your family will be able to sustain themselves and their families during your stay in Canada.
Provincial Nominee Programs (PNP)
The Provincial Nominee Programs (PNPs) in Canada were created to help provinces and territories deal with labour shortages. 11 of Canada’s 13 provinces and territories manage community-level problems by providing multiple avenues to PR in the country.
Among the most well-known are:
Alberta – Alberta Express Entry Stream
British Columbia – Skills Immigration, Express Entry British Columbia
Ontario – Human Capital Category, Employer Job Offer Category
Prince Edward Island – PEI PNP Express Entry
Saskatchewan – International Skilled Worker Category
Yukon – Yukon Express Entry (YEE), Skilled Worker
Practicing law in Canada
Canada is a great place to practice law. The information provided above will assist Indian lawyers in obtaining PR in Canada. However, becoming a lawyer in Canada is a whole different process.
To practise law in Canada, you must first become a member of the Law Society of Canadian Provinces and Territories. You’ll need to follow three steps.
STEP 1: NCA Law Degree Equivalency Certificate (valid for 3 to 5 years) OR LLM degree from a Canadian university that meets NCA requirements.
STEP 2: Articling (duration varies depending on how quickly applicants can secure an internship; after that, a minimum of one year is required) OR completing an 8-month legal practice programme at a recognised Canadian university.
STEP 3: Clear the bar examination which is a 6-hour open-book exam.
Requirements for a Minimum IELTS Score
You should take the IELTS General Training test, which is the chosen test for immigration to Canada, to demonstrate your English competence.
In order to obtain permanent residency in Canada, one must follow one of three paths:
Federal Skilled Worker Program (Federal Skilled Worker Program)
Federal Skilled Trades Program (Federal Skilled Trades Program)
Class on the Canadian Experience
As the IRCC takes 6 months to process your application, be sure your IELTS exam results are valid for the entire time.
A CLB 7 language competence level, or a minimum of 6.0 on each area of the IELTS test, is necessary for permanent residency through Express Entry.
There are varying language competency requirements for each programme. Listening, reading, writing, and speaking are the four subcategories used to evaluate your language skills. CLB Level (Canadian Language Benchmark) determines how many points you gain.
CLB Level and IELTS Scores
CLB Level
Points per subcategory
Listening
Reading
Speaking
Writing
7
4
6.0-7.0
6.0
6.0
6.0
8
5
7.5
6.5
6.5
6.5
9
6
8.0
7.0
7.0
7.0
10 and above
6
8.5-9.0
8.0-9.0
7.5-9.0
7.5-9.0
If English is your second language, you will receive a total of 4 points if you meet the per-section requirements.
CLB Level
Total Points
Listening
Reading
Speaking
Writing
5 and above
4
5.0-9.0
4.0-9.0
5.0-9.0
4.0-9.0
Federal Skilled Trades Program
The per-section score requirements for each CLB Level are listed below.
CLB Level
Listening
Reading
Speaking
Writing
4
4.5
3.5
4.0
4.0
5
5.0
4.0
5.0
5.0
6
5.5
5.0
5.5
5.5
7
6.0
6.0
6.0
6.0
8
7.5
6.5
6.5
6.5
9
8.0
7.0
7.0
7.0
10 and above
8.5-9.0
8.0-9.0
7.5-9.0
7.5-9.0
Canadian Experience Class
CLB 7 is the minimal language requirement for NOC A positions. CLB 5 is a requirement for NOC B positions.
The CLB levels that correspond to per-section IELTS scores are listed below.
NOC
CLB Level
Listening
Reading
Speaking
Writing
A
10 and above
8.5-9.0
8.0-9.0
7.5-9.0
7.5-9.0
A
9
8.0
7.0
7.0
7.0
A
8
7.5
6.5
6.5
6.5
A
7
6.0
6.0
6.0
6.0
B
6
5.5
5.0
5.5
5.5
B
5
5.0
4.0
5.0
5.0
Aside from language proficiency, you’ll be judged on other factors including your educational degree, age, and work experience. The minimum points required for permanent residency through Canada Express Entry are roughly 439, which was the cutoff on December 19, 2018.
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This article has been written by Mudit Gupta, currently pursuing BBA.LL.B (Hons.) from the University of Mumbai Law Academy. This article discusses all the necessary details about the contract of indemnity and rights of an indemnity holder.
It has been published by Rachit Garg.
Table of Contents
Introduction
In the past, people were a lot more secure about their commitments. Word of mouth was good enough to give a sense of trust. But as trust levels started to decrease, people preferred to have everything in writing. People also felt the need to mitigate the risk levels in exchange for something. As this concept took prominence in society, it was considered to find a place in the law as well. So the concept of indemnity was discussed in English law and legislation was made regarding the concept.
When the Britishers started operating in India and started ruling over our country, they also introduced various laws. One such law was the Indian Contract Act, 1872. As these laws were made by the British lawmakers, they were dominantly dependent on the English laws with a twist as per the cultural requirements of India. The concept of indemnity was also discussed in the law passed in 1872.
Now, as the Indian Contract Act, 1872 was presented with some changes, there were also some significant differences between the English and Indian legislations. The scope of indemnity under English law is a bit wider as compared to that of Indian law. As per English Law, a contract of indemnity has been defined as a promise by one party to compensate another for the loss suffered as a consequence of a specific event, called the “trigger event”. This definition of indemnity has nothing to do with who was behind the happening of the event that yielded to the maturity of liability. But, the concept of indemnity under Indian law only includes indemnity for the loss caused by the acts of the indemnifier or any other person, and it does not include any loss caused because of some natural calamity, whereas in English law the concept includes the situations where covering for losses caused because of all the three mentioned situations is valid.
In this article, all the information relating to the contract of indemnity in India and, more specifically, relating to the indemnity holder, has been discussed thoroughly.
What is a contract of indemnity
As per the preamble of the Indian Contract Act, 1872, the Act was passed to amend and define certain parts of the contract. This does not mean that this Act is the primary statute to be referred to in the case of a contract; it is not the only one. As pronounced in the judgement ofIrrawaddy Flotilla Co. v Bhagwandas (1891), the statute named the Indian Contract Act, 1872, is not a complete code. It is the primary one which has to be referred to while dealing with contracts within the jurisdiction of India, but other specific statutes as per the circumstances are also to be referred to. This means that the statute provided for contracts is not exhaustive and gives room for other updations to be made. As and when the need arose, new statutes were brought in to manage the situation. The Sale of Goods Act, 1930; the Indian Partnership Act, 1932 etc. are some of the few examples of these. These statutes were earlier a part of the Indian Contract Act, 1872 but later they were separated from it and new statutes were enacted on the same.
But some special types of contracts are not separated from the statute till now. They all fall under the second part of the statute, commonly known as specific contracts. One such type, which is very important and widely used, is a contract of indemnity.
Let’s first discuss what a contract of indemnity actually is.
The contract of indemnity was first introduced in the case ofAdamson v. Jarvis (1827). In this case, the plaintiff, an auctioneer, sold cattle on the instructions of the defendant, and subsequently, the cattle were found to be owned by some other person. The owner sued the plaintiff. The plaintiff subsequently sued the defendant, who instructed him to sell the cattle. In this case, the judgement was given in favour of the plaintiff. The Court said that the person who instructed the auctioneer, in a way, indemnified the auctioneer and hence was held liable for the same under his liability as an indemnifier.
A contract of indemnity is a contract whereby one party promises to save the other from the loss caused to him by the conduct of the promisor or any other person.
A contract of indemnity is a contingent contract because it is the happening of a certain event by the indemnifier or the third party that triggers the contract. The occurring event triggers the contract and leads to the maturity of liability.
For a valid contract of indemnity, there are certain conditions-
The consideration for the contract must be lawful.
The object of the contract must be lawful.
Loss to the indemnity holder is an essential requirement.
It is dependent on a particular event.
The indemnity may be expressed or implied as per the situation.
All the other essentials of a valid contract.
These conditions need to be fulfilled for a valid contract of indemnity to take place.
Who is an indemnifier
As we talked about the concept of indemnity, now let’s talk about who is an indemnifier. An indemnifier is a person who guarantees to pay for the loss caused to the indemnity holder upon the happening of a certain event, whether it be done by the indemnifier himself/herself or some third party. As soon as the loss occurs to the indemnity holder because of the acts of the indemnifier or some third party, the maturity of liability arises.
For example, A gives an indemnity to B that if any sort of damage happens to his house which is caused by human activity within the next 2 years, then A will pay for all the losses to B. If in this case, a fire breaks out at the house of B which has taken place due to an event organised in a neighbourhood activity, then in this case A is bound to pay B for all the damages incurred by him. In this case, A is the indemnifier as he has taken the responsibility to make up for the losses incurred by B and he is bound to do so as per the agreement.
Who is an indemnity holder
The beneficiary party in a contract of indemnity is the indemnity holder. An indemnity holder is a party who is assured by the indemnifier of the costs and damages that can take place in the future regarding a particular thing. The damage needs to have taken place by the happening of an event for which the indemnifier himself or any other third party is liable.
As in the example discussed above, A is the indemnifier. B, who has been assured of all the damages, is the indemnity holder as he is the beneficiary party in the agreement made between them.
Rights provided to an indemnity holder under Section 125 of Indian Contract Act, 1872
In a contract of indemnity, the indemnity holder is the beneficiary party and hence, the majority of the rights are in his favour. An indemnity holder holds the right to recover damages, costs incurred by him concerning the suit relating to the matter, and also the amount paid under the compromise of the suit. These rights are provided to him by Section 125 of the Indian Contract Act, 1872.
Section 125 of the Indian Contract Act, 1872, confers some rights to the indemnity holder and are to be fulfilled by the indemnifier and these rights include-
Right to recover sums paid during compromise (Section 125(3))
All these rights are comprehensively discussed in the coming subheadings.
Right to recover damages
As we discussed, the main motive of the contract of indemnity is to undo the losses caused to the indemnity holder which were caused due to the happening of an event, and the happening of that event is either triggered by the indemnifier himself or some other third party. As per the provisions given under the Indian Contract Act, 1872, an indemnifier becomes liable to pay to the indemnity holder all the damages to which the contract of indemnity applies.
For example, if two people, namely A and B, sign a contract of indemnity wherein A indemnifies B for the potential losses that could be incurred by him if a ship, which is used to carry goods sinks by some human error. In this scenario, if the ship sinks due to some human error, then A is liable to pay B the damages incurred by him, and it is the right of B to recover those damages from B.
Right to recover costs incurred
The indemnity holder holds all the rights to recover all the costs incurred in the suit of indemnity from the indemnifier as it is their right to do so. The main essence of the contract of indemnity is to mitigate the losses incurred by the indemnity holder, and if some costs relating to a suit to the matter concerned arise, then the costs regarding that suit have to be borne by the indemnifier. However, in bringing up or defending such a suit, he must not go against the directives of the indemnifier and should act in such a way as he would have acted in the absence of the indemnity. Otherwise, the authorization to defend or bring up the suit is given by the promisor expressly.
As far as these conditions are taken care of, any costs related to the same are to be borne by the indemnifier.
For example, if two people, A and B, contracted with each other wherein, A indemnified B for the losses caused to him by a particular shipment of goods. Now, if any suit takes place regarding the event that caused the loss to the shipment, like an accident, then the result may play a key role in the case. Then, in that case, the costs incurred regarding the suit will also become recoverable from the indemnifier as per the right of the indemnity holder to recover them conferred on him by Section 125 of the Indian Contract Act, 1872. However, in bringing up or defending such a suit, he must not go against the directives of the indemnifier and should act in such a way as he would have acted in the absence of the indemnity.
Right to recover sums paid under compromise
The indemnity holder also holds the right to recover all the sums paid under the compromise of any suit if such a compromise was not against any directions given by the indemnifier specifically. Another condition is that he should act in such a way as he would have acted in the absence of the indemnity or the authorization to compromise the suit given by the promisor.
For example, if A and B contract with each other, and A indemnifies B regarding the completion of a task assigned to B by a third party. Now, if the task is not fulfilled and the person who assigned the task to B files a suit regarding the same, and subsequently, both the parties compromise and B needs to pay a certain sum under this compromise, then in that case, the sum paid is also recoverable from A as per the right to recover sums paid under a compromise subject to. However, in bringing up or defending such a suit, he must not go against the directives of A and should act in such a way as he would have acted in the absence of the indemnity.
Are contracts of insurance indemnity contracts
When the analogy between the insurance contracts and the contract of indemnity has to be drawn, the different perspectives offered by the English and Indian laws have to be discussed.
As per English law, contracts of insurance are indemnity contracts, as, under contracts of insurance, one party has incurred a loss and the other has promised to make good for a loss so incurred by the indemnified party. The source responsible for the happening of the trigger event is not a matter of concern in this case.
But as per Indian law, the source of the activity that caused loss to the party holds much importance. Any loss occurring due to non-human activities is outside the purview of the contract of indemnity. Hence, the majority of the insurance contracts in India are indemnity contracts, but the difference between Indian and English legislation is that the purview of English legislation is much wider as compared to Indian legislation.
Life insurance contracts are not contracts of indemnity. The reason behind this is that most deaths do not happen unnaturally. They happen naturally and do not have any relation to any sort of trigger activity. So, as there is no involvement of the indemnifier, i.e., the insurer or any other third party, and the contrary has not been proved, the death cannot be said to have happened due to a particular event triggered by either the indemnifier or some other third party.
The Indian judiciary has many times discussed this concept in the past.
In the case ofNew India Assurance Company Ltd. v. Kusumanchi Kameshwara Rao and Ors.(1996), the Hon’ble Supreme Court pronounced that the statute regarding the contracts of indemnity does not deal with cases where the happening of events does not depend on any acts of the indemnifier or some third party.
Hence, it can be safely concluded that most insurance contracts don’t fall under the purview of contracts of indemnity and the scope of the same is much wider in the case of English laws.
When does the liability of an indemnifier commence
Talking about the commencement of liability on the part of the indemnifier, the liability commences as soon as the trigger event takes place. The happening of the event, either by the indemnifier himself or by some third party, marks the commencement of the liability on the part of the indemnifier with an underlying principle that the loss must have occurred to the indemnity holder and he should have acted in the same way as he would have acted when he would not have indemnity to save the loss.
Clarifying with the help of an example, if A indemnifies B regarding the damage to his office, then the liability arises as soon as some trigger event happens, causing damage to the office and loss to B.
The extent of liability in the case of indemnity where there is an indemnity bond in the form of a bank guarantee
The basic principle of the Indian Contract Act, 1872 says that immediate damages are to be paid for and remote ones should not be taken into consideration. Remote damage is not considered. But in the case of contracts of indemnity, the remote damage is also mitigated for the indemnifier. Losses which can’t be foreseen normally can also be accounted for while calculating the damages in case of indemnity.
Case laws
Gajanan Moreshwar Parelkar v. Moreshwar Madan Mantri (1942)
In this case, the plaintiff got a piece of land from Bombay Municipal Corporation for a long term of 999 years on lease. He transferred the lease to M. Madan for a limited period. M. Madan started the construction on the land and got his supplies from K.D. Mohan Das. When asked for the payment of the supplies, M. Madan could not pay for them. He further asked the plaintiff to prepare a mortgage deed in favour of K.D. Mohan Das. G. Moreshwar put a charge on his possessions and they also agreed upon the interest rate. They decided on a date for the return of the principal amount and interest by M. Madan.
He had decided to repay the principal amount along with interest and to get the mortgage deed released before a particular date. But M. Madan did not pay anything to K.D. Mohan Das and G. Moreshwar had to pay some interest. When after several requests and intimations, M. Madan didn’t get the mortgage deed released, G. Moreshwar sued M. Madan for indemnity.
In this case, the court adjudged that if the indemnity-holder has incurred a liability and the liability is absolute, then he can ask the indemnifier to take care of it. Hence, the plaintiff was indemnified by the defendant for all those liabilities under the mortgage and deed of further charges.
The Secretary of State v. the Bank of India Limited (1938)
In this case, a promissory note with a false endorsement was issued by a broker, and the bank applied for and got it renewed by the Public Debt Office, all in good faith. Meanwhile, the Secretary of State was sued by the real owner of the promissory note for the conversion, and the Secretary of State, in turn, sued the Bank of India Ltd. on the ground of implied indemnity.
In this case, the judgement was based on the case of Dugdale v. Lovering (1875) where it was held that it is a general principle of law that, when an act done by a person at the request of another, action is not manifestly tortious in itself to the knowledge of the person doing it, and if that act turns out to be injurious to the third person, then that person doing it is entitled to indemnity by the person who requests that the act be done.
Recent example
Recently, in a video released by Sandeep Maheshwari on his Youtube channel, there was a conversation between Sandeep Maheshwari and Shwetabh Gangwar in which Sandeep Maheshwari orally indemnified Shwetab regarding the compensation demanded by a person in a legal suit. He said that “as the Shwetabh is going through a financial crunch, if he loses the legal tussle, then the compensation demanded by the other party will be paid by Sandeep Maheshwari.” Although this is not something provided in writing, it holds value and is a very apt example for understanding a contract of indemnity.
Conclusion
The contract of indemnity or clause of indemnity in a contract has become an essential part of most commercial contract relationships and other contractual agreements. The scope of indemnity in Indian law is only limited to the events that took place due to the acts of the indemnifier or some other party. The statute doesn’t have any provisions relating to natural calamities. This is becoming a bit of an issue in the times we are all living in. Hope that the lawmakers of our country understand the importance of this point and amend the statute so that the contracts are clearer and more exhaustive in nature. The scope of the provisions needs to be widened to cover the losses of the indemnity holder comprehensively. So let’s hope that the changes are made and the statute becomes more exhaustive in nature.
Frequently Asked Questions (FAQs)
What is unlimited indemnity?
The indemnity which does not have any limitation of time for enforcement is called an unlimited indemnity.
Can a contract of indemnity be implied?
Yes, a contract of indemnity can be expressed or implied, depending upon the terms of the contract and/or the circumstances of the case.
Can contracts of indemnity be oral?
Yes, in India, contracts of indemnity can be either written or oral, but it can be very difficult to prove oral indemnity contracts in courts.
Can contracts of indemnity be enforced even if there is no actual loss?
As per the interpretation of the statute only, the same cannot be done but as per some judgements if an absolute liability has accrued and it is absolute in nature, then the same can be enforced by the indemnity holder. One such case wasKhetarpal Amarnath vs Madhukar Pictures (1955).
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article is written by Hardeep Sodhi, an Engineer, MBA and Legal expert with extensive experience in drafting and reviewing contracts and other legal documents. This article has been edited by Ojuswi (Associate, Lawsikho).
Sometimes when a matter transcends borders, the domestic laws bearing upon it may be found in conflict with international conventions and norms. It is then for the final arbiter, the Hon’ble Supreme Court to make a thorough analysis of domestic laws, International conventions and treaties to which India is party, and settle national and international cases to solve to avoid chaos. This conflict of national statutes with international treaties and conventions and how they are finally resolved by the Hon’ble Supreme Court is well-brought out in the case analysed here.
Background
M/s Bhagwandas B. Ramchandani ( Appellant hereon ) is a fruits and vegetable exporter. The Appellant sent two cargoes of these via British Airways( Respondent hereon ) to Canada. Due to flight delays and packaging damage, these cargoes were destroyed. Appellant raised a claim on Respondent. The Respondent offered to settle. But the Appellant did not accept the settlement and about two years later put a suit in Trial Court while approaching other fora in the interim. Respondent contended the suit is barred by the statute of limitations as it holds in India.
The Trial Court held suit is not barred by limitation, counting the period from the date at which Respondent offered settlement ( since the cause of action arose upon Appellant refusing this settlement ). The Trial Court read Rule 30 of the Second Schedule of Carriage by Air Act 1972 and its interpretation that the Limitation Act 1963 applies to proceedings for calculating the period of limitation.
Respondent filed a Writ Petition in High Court which instead held that the Carriage by Air Act 1972 is a later and special statute and so, will have an overriding effect over the earlier and the general statute, viz the Limitation Act 1963. Aggrieved by this decision, the Appellant appealed to the Hon’ble Supreme Court.
Issues
The Hon’ble Supreme Court had to consider the following conflicting provisions as set out in Rule 30 of the Carriage by Air Act 1972. Following were the issues under consideration:
Does Limitation Act, 1963 apply to the period specified in Rule 30 of the Second Schedule of the Carriage by Air Act, 1972?
This refers to Rule 30(2), a plain reading of which suggests that the Limitation Act 1963 must be used for calculating the period of limitation.
This is what the Appellant relied upon and so, per him, the suit was maintainable.
Whether the Air Act, 1972, particularly Rule 30 of the Second Schedule expressly excludes the applicability of the Limitation Act, 1963?
This refers to Rule 30(1), a plain reading of which suggests that the right to damages shall be extinguished if an action is not brought within two years reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
This is what the Respondent relied upon and so, per him, the suit was not maintainable as this period of two years was over.
Rules
Rule 30 of the Carriage by Air Act 1972 states :
“30. (1) The right to damages shall be extinguished if an action is not brought within two years,
reckoned from the date of arrival at the destination, from the date on which the aircraft ought to have
arrived, or from the date on which the carriage stopped.
(2) The method of calculating the period of limitation shall be determined by the law of the Court
seized of the case”
Going by Rule 30(2), the Appellant relied upon S. 29 of Limitation Act 1963 which states :
29. Savings.—(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and to determine any period of
The limitation prescribed for any suit, appeal or application by any special or local law, the provisions
contained in sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are
not expressly excluded by such special or local law.
S. 3 of the Limitation Act 1963 prescribes the bar of limitation and says that :
3. Bar of limitation.—(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every
suit instituted, appeal preferred, and the application made after the prescribed period shall be dismissed,
although limitation has not been set up as a defence.
Analysis
A conjoint and plain reading of the two sections of Limitation Act 1963 makes clear that the “ special law” will hold ( which is Carriage by Air Act 1972 in this case) over the limitation period specified in Limitation Act 1963, and provisions in S. 4 to 24 of Limitation Act 1963 ( which allow of periods not to be included when determining whether the limitation period has expired or not ) will hold only to the extent they are not expressly excluded by Carriage by Air Act 1972.
The Appellant claimed that Rule 30 of the Carriage by Air Act 1972 has not expressly excluded the applicability of the Limitation Act. Further Rule 30 (2) clearly says that the “method of calculating the period of limitation” has to be based upon the law of the Court seized of the case, which is the Limitation Act 1963 and its provisions which allow for exemption of periods for calculating the Limitation period.
The Respondent instead argued that the exclusion under Section 29(2) can be implied from the provisions of the Air Act,1972. It relied upon the judgement of the Hon’ble Supreme Court in Hukumdev Narain Yadav v. Lalit Narain Mishra, as well as international judgements viz Sidhu v.British Airways and Philips v. Air New Zealand ( UK Courts), Fishman v. Delta Airlines, Kahn v. Trans World Airlines (USA) and Bhatia v. Malaysian Airline System Berhad ( Australia ) in support of its stand.
Deliberations of Hon’ble Supreme Court on Issue no. 1
The Hon’ble Supreme Court took note that International Conventions such as the Warsaw Convention 1929, the Hague Protocol 1995, and the Montreal Convention 1999 have been incorporated into the Carriage by Air Act 1972, thus giving their relevant provisions legal sanctity in India. Further, India has concomitant procedural laws of which Limitation Act 1963 is a branch of adjectival law. However, a clear legal principle states that when the right itself is extinguished, the provisions relating to limitation have no application. Various sections of the Limitation Act 1963 make it clear. For instance, S. 27 of the Limitation Act 1963 recognizes the principle of extinguishment of the Right to Property is an exception to the applicability of the Limitation Act.
The Hon’ble Supreme Court cited several Indian cases bringing out clearly that while usually the right of any party is not destroyed by rules of limitation ( only the remedy is barred but the right continues to exist ), in exceptions the right itself is destroyed and in such cases, no remedy then exists.
For instance, paraphrasing the Supreme Court “ when a suit for possession of the property is barred by limitation, the right to the property itself is destroyed ( S. 27) “. S. 27 of Limitation Act 1963 reads :
Section 27: Extinguishment of property rights.
27. At the determination of the period hereby limited to any person instituting a suit for possessing any property, his right to such property shall be extinguished.
On the other hand, though the right to enforce a debt by judicial process is barred under Section 3 read with the relevant article in the schedule, the right to debt remains and this right may be exercised in any other manner than using a suit. The debt is not extinguished, but the remedy to enforce the liability is destroyed”. For instance, a suit for eviction may lie for non-payment of due rent, even when the suit for recovery of rent has been barred by limitation. This was held in Khadi Gram Udyog Trust v. Ram Chandraji Virajman Mandir .
Analysing Sub-Rule (1) of Rule 30, the Hon’ble Supreme Court noted it uses the terms “ right to damages” and “ extinguishment”. Thus the intention of the law-giver ( Parliament ) is clear that the right to damages would not subsist after the expiry of the period mentioned therein. And once the right itself is extinguished, provisions of the Limitation Act have no application. As held in The East and West Steamship Co. case, once the right of liability is extinguished under the clause, there is no scope for acknowledging the liability thereafter.
So the position of law is clear from the plain language of Rule 30(1).
Rule 30(2), however, brings in serious difficulty as it adopts the applicability of the Limitation Act, 1963 as Courts in India exercise jurisdiction. But in many cases, the period allowed under the Limitation Act 1963 may become more than the period of two years allowed under Rule 30(1), which is the crux of the case here.
The Hon’ble Supreme Court then proceeded to interpret Rule 30 correctly. For this purpose, it relied upon various international conventions including the Vienna Convention on Law of Treaties. The legislative history of Article 29 of the Warsaw Convention was also probed, including the deliberations of various countries on the draft of Article 29. It was finally concluded that sub-Article (2) of Article 29 as finally drafted excluded the suspension of any period of limitation.
As clearly set out in the judgement of the Appellate Division of the Supreme Court of New York in Kahn v. Trans World Airlines : “In addition, such an intent on the part of the draughtsmen is fully consistent with one of the Convention’s overall purposes-that of establishing “a uniform body of worldwide liability rules to govern international aviation.”
The Hon’ble Supreme Court then proceeded to consider various International Judgements as well as some Indian ones, while bearing fully in mind that in interpreting international treaties and conventions courts must try to make their interpretation align as closely as possible with courts of other jurisdictions ( in other countries here ). For instance, in the US case Fishman v. Delta Air Lines Inc an infant traveller was burnt by an air hostess. The claim was brought by its mother after a period of two years, claiming that the local limitation law suspends limitations for infants. The Court observed that looking at the drafting minutes of the Warsaw Convention, it is clear that “ the drafters of the Convention specifically considered and rejected a proposed provision that would have allowed the limitations period to be tolled according to the law of the forum court.”
Considering many cases internationally as well as in India, the Hon’ble Supreme Court finally held that for uniformity and also to subserve the purpose and object of the Warsaw Convention, Rule 30 (2) of Carriage by Air Act 1972 does not enable applicability of exclusion of periods to reckon the period of two years.
Deliberations of Hon’ble Supreme Court on Issue no. 2
As already elaborated above, the Supreme Court has held that per Rule 30(1) right to damages itself is extinguished after the expiry of the period of two years and therefore the provisions of the Limitation Act have no application as there is no right subsisting for enforcement.
However, the Appellant contended that the Carriage by Air Act 1972 does not expressly exclude the application of the Limitation Act and so, its provisions must be considered. Further, Rule 30(2) of the Carriage by Air Act 1972 reiterated the applicability of the Limitation Act 1963.
The Supreme Court stated that express empowerment is to be gathered by provisions of the statute, as has been held in Shanmugam v. Commissioner for Registration. Hukumdev Narain Yadav v. Lalit Narain Mishra was also evaluated.
Considering all these matters in detail, the Court held that Rule 30 of the Carriage by Air Act 1972, expressly excludes the applicability of the Limitation Act,1963, and answered issue 2 accordingly.
Conclusion
As elaborated above, the Hon’ble Supreme Court has in this case gone much beyond the submission of various parties and has instead looked at the genesis of various laws and treaties governing international cargo transport and travel. Finally, to arrive at a harmonious alignment with various International Conventions, Rule 30 of the Carriage by Air Act 1972 has been clarified to rule out the applicability of the Limitation Act 1963. In effect, it makes Rule 30(2) redundant and holds only Rule 30(1) valid in India, harmonising it with laws elsewhere globally. This brings about clarity in international cargo and personal travel claim settlements.
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This article is written by Kishita Gupta, a graduate of the United World School of Law, Karnavati University, Gandhinagar. This article discusses aspects relating to the minimum wage in the US by reflecting on its history and analysing the current position relating to it.
How would you feel if you got $5 but your colleague who joined on the same day as you with the same qualification got $7 for the same work as you? Well, you will feel discriminated against. This is why the concept of minimum wages is important. It is the lowest amount of remuneration that the employees can legally pay to their employees. It not only provides a balance between unequal wages but also gives the labourers a surety of not being exploited by the employers. In this article, we will be dealing with various aspects related to minimum wages in the United States of America.
History of minimum wages in the US
The mills in Lawrence, Massachusetts, 120 years ago, were the origin of the minimum wage in the United States. Nearly a fraction of the woolen cloth made in the United States at the time was produced in its mills. However, the labour wasn’t free. More than half of those inside were women and children. Poor working conditions and low pay were present. The death rate in Lawrence was among the highest in the nation. Workers went on strike in 1912 when a 14-year-old child at one mill had his leg broken in an elevator. Two people died after police fought with strikers, while the third person was killed months later by a group of men who opposed his labour plan. A memorial for the three is located in a cemetery in Lawrence. Work and pay were forever altered during the strike. The first minimum wage law in the US was enacted in Massachusetts, although it only applied to women and children.
Soon after, the states of California, Colorado, Minnesota, Nebraska, Oregon, Utah, Washington, and Wisconsin passed their own minimum wage statutes. By the end of World War I, Arizona, Arkansas, Kansas, and Washington, D.C. had also joined them. However, the Supreme Court in Adkins v. Children’s Hospital (1923) overturned minimum wage regulations in 1923. The Court, with a ratio of 5:4, ruled that it is unconstitutional to fix minimum wages for women regardless of occupation as they interfere with the liberty of contract, which is guaranteed by the Fifth Amendment. The Great Depression shortly after aggravated the issues that American labourers continued to face in their daily lives. Then the nation re-elected former President Franklin Delano Roosevelt despite widespread poverty.
In a landmark ruling by the US Supreme Court in West Coast Hotel Company v. Parrish (1937), it was ruled by a majority of 5:4 that Washington State is allowed to impose regulations on minimum wages on private employers. According to the Court, this regulation was not a violation of the Fourteenth Amendment of the Constitution of America as claimed by the petitioners. This case overturns the judgment passed in Alkins.
The first US minimum wage was established in 1938 by the Fair Labor Standards Act (FLSA). It was enacted as a part of the ‘New Deal’ by President Franklin D. Roosevelt to safeguard workers during the Great Depression. For many people, wages during that period were as low as pennies per day. Due to this, Roosevelt established a $0.25/hour minimum wage. In order to stay in business during the Great Depression, businesses were forced to reduce wages and increase hours.
Child labour is yet another serious concern. A survey conducted by the Children’s Bureau of the US Department of Labor (DOL) at the time found that 25% of the 449 American children who participated were working 60 or more hours a week. President Roosevelt convened a special session of Congress in 1937 to discuss issues in the lead-up to setting the minimum wage as a result of growing public interest in the subject. The FLSA limited the workweek to 44 hours and prohibited forced child labour, in addition to setting the minimum wage.
The Portal-to-Portal Act amended the FLSA on May 14, 1947. This law was significant because it addressed some concerns about what the FLSA considers to be compensable hours worked. The U.S. Supreme Court had previously ruled on issues involving make-ready procedures in factories and underground transit in coal mines. The minimum wage was raised to 75 cents an hour for all workers in 1949, and its application was extended to include those employed in the air transport sector. In 1955, the minimum wage was raised to $1 an hour without any changes to its application.
For previously covered workers in the retail trade sector, the minimum wage was raised to $1.15 per hour in September 1961 and to $1.25 per hour in September 1963. For new employees covered by the Act, the minimum wage was fixed at $1.00 per hour in September 1961, $1.15 per hour in September 1964, and $1.25 per hour in September 1965. For newly covered nonfarm workers, the minimum wage increased to $1.00 an hour in February 1967, $1.15 in February 1968, $1.30 in February 1969, $1.45 in February 1970, and $1.60 in February 1971. For newly covered farm labourers, increases were halted at $1.30.
Later, the Supreme Court in Garcia v. San Antonio Metropolitan Transit Authority (1985) ruled that the fundamental concepts of federalism outlined in National League of Cities v. Usery were impractical and that the Commerce Clause made Congressional legislation over state laws subject to those laws. The Court determined that guidelines based on the arbitrary interpretation of what constitutes an ‘integral’ or a ‘traditional’ governmental function offered little to no help in evaluating the limits of federal and state jurisdiction. The Court argued that state sovereignty was maintained by the federal system’s structure, not by any ‘discrete constraints’ on federal power.
Consequently, Congress passed amendments amending how the FLSA applied to employees in the public sector, allowing State and local governments to provide their employees with 1 and 1/2 hours of compensatory time off in place of overtime pay for every hour of overtime worked.
What are the current minimum wages in the US
Since it was first established, the federal minimum wage has been increased 22 times, from mere cents to the current $7.25 figure. The Fair Minimum Wage Act of 2007 was the most recent change to the FLSA. It established these planned increases:
$5.15 per hour prior to July 24, 2007.
$5.85 per hour from July 24, 2007, until July 23, 2008.
$6.55 per hour from July 24, 2008, until July 23, 2009.
$7.25 per hour as of July 24, 2009, or later
President Joe Biden prioritised a government mandate for the $15 minimum wage during the election season and has continued to do so since taking office. Just after Biden took office, Democratic senators introduced the Raise the Wage Bill of 2021, which aims to raise the federal minimum wage to $15 by 2025. While Congress continues to do nothing about the minimum wage issue, President Biden signed an executive order raising the minimum pay for federal contract workers to $15.
Tipped employees are those who typically get more than $30 in tips per month. Although the employer is permitted to count tips as part of earnings, they are still required to pay direct wages of at least $2.13 per hour.
In order to apply the tip credit provision, an employer must notify the employee in advance and demonstrate that, when direct wages and the tip credit allowance are added up, the employee is paid at least the corresponding minimum wage. If the minimum hourly wage is not met after deducting tips from the employee’s direct earnings and the employer’s direct wages of at least $2.13 per hour, the employer shall make up the difference. Employees must also keep all tips they get unless they take part in a legal tip pooling or sharing scheme.
The minimum wage for young workers
Young workers are generally those who are under the age of 20 years. For the first 90 consecutive calendar days of their employment with an employer, young workers are entitled to a minimum wage of $4.25 per hour, provided that their work does not result in the displacement of other workers. As of July 24, 2009, employees must be paid a minimum wage of $7.25 per hour after 90 continuous days of employment or when they reach the age of 20 years, whichever comes first.
Minimum wage exception to full-time students
For full-time students who are also working in retail or service businesses, agriculture, or schools and universities, there is the Full-Time Student Program. A certificate from the Department of Labor can be obtained by the company that hires students, allowing the student to be paid at least 85% of the minimum wage. The certificate further stipulates that the student may only work 8 hours per day, a maximum of 20 hours per week during the academic year and 40 hours during the summer, and that the employer must abide by all child labour statutes. Students must be paid $7.25 per hour once they graduate or permanently leave school.
Minimum wage exception to student learners
Student learners are high school children who have attained at least the age of 16 years. The exceptions are for those who have enrolled in vocational education. As long as the student is enrolled in the vocational education programme, the employer can acquire a certificate from the Department of Labor authorising payment of the student at a rate not less than 75% of the minimum wage.
As the above-mentioned image depicts, there is an inclination among American citizens toward raising the minimum wage. But before coming to a conclusion based on this data, let us first analyse some pros and cons of the raise.
Arguments in favour of raising the US minimum wage
Boost in productivity
An increase in wages also increases the morale of the workers as they get paid what they deserve. A study shows that minimum wages can increase labour productivity both at the firm level and across the overall economy, in addition to reducing wage disparity and channeling productivity increases into higher wages.
Reduction in income inequality
The enormous gap in how income is divided among individuals, groups, populations, social classes, or nations, partly due to structural racism or sexism, can be reduced while increasing the incentive to work. People who have historically been marginalised and who perform excessively low-wage employment would stand to gain disproportionately from the increase.
While 27% of the entire US labour force would benefit from the boost, according to the Economic Policy Institute‘s data:
Compared to white men, who would benefit 18%, Black and Latina women would benefit 39%;
African American workers would benefit to the tune of 38%;
Latino workers would benefit to the tune of 33%;
Women who work would benefit by 32% (vs 22 percent of men).
According to a 2019 study by the National Women’s Law Center, for women working full-time in states with a minimum wage of $10 per hour or higher, the income gap is 34% less. This study highlights the potential value of even a modest minimum-wage rise.
Pew Research notes that the top earners have benefited most from wage growth over the years. According to a different EPI report, racial disparities in salaries between Black and White Americans have widened significantly in recent years, although hiking the minimum wage may help. According to 1966 research on the minimum wage increase, there was a considerable decline in the wage disparity between Black and White Americans, which is responsible for more than 20% of the income gap’s reduction. A stagnant minimum wage is unmistakably contributing to the nation’s expanding racial wealth divide.
Boosts economic growth and reduces poverty
The cost of living is more accurately reflected by a higher minimum wage. Because they have more money to spend and are less likely to default on loans, workers who are able to earn more than the cost of living to contribute more to the economy. This raises consumer demand, boosts sales, and reduces consumer debt, medical debt, and evictions. Thus, by increasing the minimum wage, a nation steps further toward economic growth.
The Congressional Budget Office’s report predicts that raising the federal minimum wage to $15 per hour would help roughly one million people overcome poverty and have an impact on over 2.7 million workers.
Given that so many people have fallen into poverty over the previous year and that 11% of adults now experience food insecurity, the pandemic has made the need for a minimum wage increase even more pressing.
Beneficial to small businesses
A higher minimum wage has a number of advantages for small firms that could more than outweigh its higher payroll costs. According to a CNBC survey, most small businesses can afford to absorb the increase in labour costs brought on by raises in state and municipal minimum wages in 2021. An increasing number of business owners are becoming aware of the advantages of paying their staff a fair wage, living wage, or even supporting a rise in the federal minimum wage.
But there are contradictory views on this particular point. An early 2021 National Federation of Independent Business (NFIB) poll found that 92% of small businesses believe that Main Street and its employment chances will suffer from a $15 per hour minimum wage.
Improves employee retention
As employees have less incentive to look for higher-paying employment elsewhere, increased wages may help employers keep their personnel. The bottom line of a company may benefit from reducing employee turnover. High turnover frequently results in increased expenditures for onboarding and training. Employers may be able to control some of the rising labour expenses with the money they save from reduced employee attrition.
Arguments against raising the US minimum wage
Private sector employment reduction
According to the NFIB Research Center, the Raise the Wage Act’s $15 minimum wage would result in the loss of approximately 1.6 million jobs in the private sector. Over the long term, the United States would lose more than $2 trillion in actual economic output.
A rise in labour costs
Businesses’ labour costs, which often account for a sizable amount of their budgets, increase as a result of minimum wage laws. When the government mandates that businesses pay more per worker, businesses often hire fewer people to maintain the same level of total labour expenditures. The unemployment rate then rises as a result.
Since they have to compete for fewer employment opportunities, employees with incomes at or below the federal poverty line are the hardest hit. Some smaller businesses would not be able to function with fewer employees and might be forced to file for bankruptcy.
Increase in outsourcing
An increase in minimum wages may lead to more job outsourcing. Corporations may choose to relocate their operations to nations with lower labour costs.
Who falls under the category of minimum wage workers
According to the Bureau of Labor Statistics, the proportion of hourly workers making the federal minimum wage or below decreased from 1.9% in 2019 to 1.5% in 2020. This data was initially gathered in 1979 when the unemployment rate was 13.4%. In total, 1.1 million workers in 2020 received pay that was at or below the $7.25 federal minimum wage.
People who make the minimum wage or less are typically young. Just under 20% of hourly workers were under 25, but they made up over 48% of those making the federal minimum wage or below. 2% of women and 1% of men who were paid hourly received a wage that was at or below the federal minimum wage.
The majority of hourly-paid workers—around 5%—in service occupations made the federal minimum wage or less. Leisure and hospitality had the greatest percentage of hourly workers making the federal minimum wage or below, at 8%.
State minimum wages in the US
The current federal minimum wage is $7.25 as per the FLSA Act. A state-wise chart for minimum wages is as follows:
States with a higher minimum wage than the federal
States with the same minimum wage as the federal
States with lower Minimum Wage rates – the federal rate applies
States with no minimum wage rates – the federal rate applies
One can also access the history of the minimum wage for each state in the USA since 1968 here.
Who ensures that minimum wages get paid
The U.S. Department of Labor’s Wage and Hour Division is in charge of enforcing the minimum wage. The Wage and Hour Division works to guarantee that workers get the minimum wage through both enforcement and public education initiatives.
There are offices for the Wage and Hour Division all around the nation. To access the list of these offices, click here.
Wage and Hour Investigators based all around the country work for Wage and Hour to enforce the FLSA. They carry out investigations and gather information on pay, hours worked, and other employment circumstances or practices in their capacity as Wage and Hour’s authorised representatives to ascertain if the law is being followed. Investigators may suggest modifying an employer’s hiring procedures if infractions are discovered to bring them into conformity.
It is against the law to dismiss an employee or treat them differently in any other way just because they made a complaint or took part in legal action under the FLSA.
With the exception of a willful violation, where a 3-year statute of limitations applies, the recovery of back pay is subject to a 2-year statute of limitations. In other words, back pay may only be collected within two years of the date the violations occurred, unless the violations were willful.
An investigation by the wage and hour division
Investigations are carried out by the Wage and Hour Division for a variety of reasons. Complaints can serve as the catalyst for inquiries. All complaints are treated in strict confidence; neither the complainant’s identity nor the specifics of the complaint are made public. The sole exception is when a complainant’s identity must be disclosed with that person’s consent in order to further an allegation.
Wage and Hour also choose particular businesses or industries for examination in addition to complaints. On occasion, a number of companies in a certain sector or location will be investigated. The goal in either scenario is to ensure that the laws are followed in those businesses, sectors, or communities. All investigations are carried out in accordance with established policies and procedures, regardless of the reason for them.
The following is the investigation procedure:
An overview of the inquiry process will be given during a meeting between the Wage and Hour representative and the company representative(s).
a review of the company’s records to ascertain which laws or exemptions apply to the operation and its staff. These documents might, for instance, illustrate the company’s yearly cash volume, the production, handling, or sale of commodities carried in interstate commerce, or the fulfillment of government contracts. It is to be noted that unauthorised people are not given access to an employer’s records.
Examining time and payroll records, taking notes, transcribing, or making copies of data that is crucial to the investigation.
private meetings with certain staff would be conducted as a next step. These interviews are conducted to confirm the accuracy of the time and payroll records, to fully describe a worker’s responsibilities in order to discover any applicable exemptions and to ascertain whether or not young people are actually employed. Normally, interviews take place on the employer’s property, but special arrangements may be made. Interviews with current and past employees may occasionally take place at their homes, over the phone, or through the mail.
If violations have been found, they will be identified for the employer and/or the employer’s representative, along with any recommendations on how to fix them, if applicable. If there are unpaid wages, the employer will be required to pay them and may also be required to calculate the amount owing.
Legal remedies for minimum wage regulation
Administrative remedies
The following are the duties of the Department of Labor:
To supervise the payment of any outstanding overtime or minimum wage payments owed to any employee.
The Department may negotiate with employers for back wages and liquidated damages as an alternative to going to court.
For violations of the FLSA’s minimum wage or overtime standards that are repeated and/or willful, as well as those involving child labour, civil money penalties may be imposed.
Employers are subject to civil monetary fines for any breach of the minimum wage or overtime pay laws if they do so knowingly or frequently.
Employers who breach the FLSA’s rules on child labour may be fined in civil court. If an employee who is a minor dies or suffers serious harm as a result of a violation, the penalties may be enhanced, and if the offence is found to be persistent or willful, the penalties may be doubled.
Criminal remedies
The FLSA carries a $10,000 maximum fine and criminal penalties for willful violations. If convicted again, the person might end up going to jail.
To whom do the minimum wage rules apply
A covered enterprise is any group of linked operations carried out by one or more people under one common direction for a shared business goal:
Whose yearly gross volume of sales made or business conducted does not fall below $500,000 (excluding separately mentioned retail excise taxes); or
Operates a hospital, a facility whose primary mission is to care for those who live there and who are ill or elderly or mentally ill; a preschool, an elementary school, a secondary school, or a college (whether run for profit or not for profit); or a school for children who are mentally or physically challenged or gifted.
Is a public agency’s activity.
Conclusion
It is concluded that minimum wages are an important factor in eradicating poverty as they are the lowest amount of remuneration that employers are obliged to pay their employees, but on the other hand, after the pandemic, small businesses have suffered the most. The author suggests that different minimum wages can be decided by the government for different sectors, so it is a win-win for the labourers and the businesses that are still trying to recover from the after-pandemic economic situation. With regard to the implementation, a stricter policy can be put in place by the US government to ensure minimum wages are provided to all labourers.
Frequently Asked Question (FAQ)
Which states in the USA have a $15/hour minimum wage?
Currently, no state in the USA has a $15/hour minimum wage. However, the following states have made efforts to amend their existing regulations and bring in a $15/hour minimum wage policy:
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article has been written by Nimisha Dublish of the Vivekananda Institute of Professional Studies (VIPS), GGSIPU, New Delhi. The article discusses the legal position of a director in a company as per the Companies Act, 2013. In this article, we will go through the various roles of directors along with their duties and responsibilities to a company.
It has been published by Rachit Garg.
Table of Contents
Introduction
Have you ever wondered how a corporation or company makes decisions? How does an artificial person make decisions and put them into action? The brain behind all the ideation, plans and decisions made by the company is the board of directors. Directors are the ones to make any decisions related to the company. He is the person who has the required knowledge and the intention to run a company. Since an artificial person cannot have all these characteristics, directors are appointed and entrusted with the concerned business. Directors are hired by a company to take care of the company’s affairs. The team of directors is known as the Board of Directors. The Board of Directors is entrusted with the company’s management and well-being. The Board of Directors is the supreme executive authority responsible for controlling the managerial affairs of the company. They are the Key Managerial Personnel (KMP) of the company and are given importance in a company. Key Managerial Personnel (KMP) refers to the full-time employees of the company who are vested with the most important roles and responsibilities. They are responsible for multi-tasking and making tough decisions as well. They are basically a group of people who are trusted with the interests of the company and its shareholders.
There are several roles played by the directors in a company, which we will be discussing in this article. Since a company is an artificial person in the eyes of the law, it has no physical existence. Neither a sole nor a body of its own. So there has to be some agency of humans to control and manage it. People who do so and constitute an agency are known as the Board of Directors. They are in charge of the affair management. The position of directors has always remained complicated because of its nature. Now we know that a company is basically managed and controlled by the directors, the next question that arises in our minds is that if directors govern the company, then who governs and manages the directors? Is there a law? To whom are they liable and what legal position do they hold in a company? Well, all these questions and their answers will be discussed in this article itself.
Who is a company director
A company director is a professional person hired by the company to manage and run its business. A director is defined under Section 2(34) of the Companies Act, 2013 as a person (director) appointed to the Board of a company. No artificial person or entity can be selected for the position of director in a company. Only an individual person can be appointed as a director of a company.
If we think of a company as a separate legal entity, then we can see that the directors are basically termed as the mind and will of the company. This is because they control the actions and behaviour of the company in the business environment. To work in an efficient and effective manner, directors have to work in different capacities many times.
The Companies Act, 2013 makes an attempt to elucidate the duties and responsibilities of the directors of a company. The provisions of the Act clarify the roles, conduct, powers, responsibilities, and duties of a director. Section 149 of Chapter XI of the Companies Act, 2013 discusses some legal requirements of a director in a company. They are as follows-
Public company- A minimum of 3 and a maximum of 15 directors shall be appointed (out of which at least one-third of the number has to be independent).
Private company- A minimum of 2 and a maximum of 15 directors shall be appointed.
One person company- A minimum of only 1 director shall be there.
There should be at least 1 woman director and a minimum of 1 director must have stayed in India for a minimum period of 182 days in the previous calendar year.
As per the first proviso of Section 149(1) of the Companies Act, 2013, the number of directors can be increased in certain cases by passing a special resolution.
As per the notification by the Ministry of Corporate Affairs (MCA) dated 05/06/2015 issued under Section 462 of the Companies Act, 2013, the maximum limit of 15 directors on a board shall not apply to government companies.
As per the notification by MCA dated 05/06/2015 (amended 13/06/2017) issued under Section 462 of the Companies Act, 2013, the maximum limit of 15 directors is not applicable to licensed non-profit companies which come under Section 8 of the Act.
As per the Companies Act, 2013, the Board of Directors is the primary agent of the company. They are also trustees for the properties and assets held by the company in its possession. This shows that the directors have to play multi-facet roles in the company’s growth and welfare. Generally, the Board of Directors has to act on behalf of the company on all related matters except if it is stated otherwise (in the cases specifically reserved for the company).
Journey of ‘directors’ from Companies Act, 1956 to the Companies Act, 2013
S. No.
Companies Act, 1956
Companies Act, 2013
1.
A maximum of 12 directors can be appointed, whereas the consent of the central government is required to appoint an extra director.
A maximum of 15 directors can be appointed and no consent from the central government is required. Passing a mere special resolution in the board meeting allows the company to appoint additional directors.
2.
Appointing a female director was not mandatory and there were no specific provisions for the same.
Provisions are mentioned that direct a certain class of companies to appoint at least 1 female director (Section 149(1)).
3.
There is no requirement for a director to be a resident of India.
At least 1 director should be a resident of India for a minimum period of 182 days in the previous calendar year (Section 149(3)).
4.
There are no provisions for the appointment of independent directors in the Act.
A minimum of one-third of the total number of directors shall be appointed as independent directors in the case of a public listed company, as per Section 149(4) of the Act.
5.
There are no provisions for the resignation of the director.
The director must give a resignation letter in advance and also provide a copy to the Registrar of Companies within 30 days in order to ensure transparency (Section 168).
Who can be a director : qualifications and disqualifications
A person can only be appointed as a director if he/she is issued a Director Identification Number (DIN) or any other number as prescribed by Section 153 of the Companies Act, 2013. As per the amendment made in the year 2017, the Central Government may give an identification number to a person which shall be treated as DIN for the purposes of this Act.
An application for allotment of DIN to the Central Government shall be made by a person who intends to be the director of a company as per Section 153 of the Companies Act, 2013. A person who wants to become the director of the company should visit the official website (MCA Portal) to know the procedure.
There have been no professional qualifications prescribed in the Companies Act. Unless it is mentioned in the AOA of the company, a director need not be a shareholder unless he wishes to be one voluntarily. The Act imposes no share qualifications on the directors. In a general scenario, the articles do provide for a minimum number of share qualifications.
As per Section 164(1) of the Companies Act, 2013, a person shall not be eligible for the position of director in a company if-
He is declared of unsound mind by a competent court.
He is an undischarged insolvent. An insolvent is a person who is unable to repay his debts and as long as he remains in that position, he is an undischarged insolvent. That is, as long as he has not discharged his debts, he is an “undischarged insolvent.”
He has applied to be adjudicated as insolvent but the application remains pending.
He is convicted by a court for any offence. This applies up to 5 years from the date of expiry of the punishment. If a person is imprisoned for 7 years or more than that, then he stands disqualified and is not eligible to be appointed to the post of director in a company.
If a court or tribunal passes an order directing that he shall not be appointed as a director of a company and the order is still in force.
If six months have elapsed from the last day fixed for the payment of the calls in respect to any shares, then the person stands disqualified from the post of director in a company.
Conviction under Section 188 of the Act indulging in any offence dealing with related party transaction at any time during the preceding 5 years.
A private company may provide for additional disqualifications in its Articles of Association (AOA) that have not been mentioned above.
Types of directors in a company
Shadow director
A ‘shadow director’ is a director who strongly influences the decisions of the company’s Board of Directors. He does this secretly and acts in the background. He is not formally appointed as a director but has a high influence over the decisions made by the company.
De-facto director
Some people are disqualified from being appointed as directors of a company. In certain cases, these are not formally appointed as a director of a company but performs the functions of a director even though they lack the authority and right to act.
First director
Promoters are the persons who incorporate a company. They appoint certain people as directors of that company, who come to be known as the first directors of the company. The same is evident from the term ‘first directors’ as well.
Additional directors
A person who is appointed as an additional director can hold the office up to the date of the next AGM (Annual General Meeting) or the last date on which the AGM should have been held (whichever is earlier). However, a person who fails to be appointed as a director in an AGM cannot be appointed as an additional director. The Articles of Association (AOA) give the power to appoint a person as an additional director at any time.
Ad-hoc director
In case of any vacancies that may arise due to death, resignation, or any other unforeseen circumstance of a director, an As-hoc director may be appointed by the board of directors. These ad-hoc directors can assume the office until the term of the original director.
Alternative director
If a director remains absent for more than 3 months from the meetings held by the boards, an alternative director is appointed by the board of directors in his place. The alternative director holds the office either till the date of expiry of the tenure or till the original director returns. The difference here between ad-hoc and alternative director is that the position of alternative director is temporary till the original director returns, whereas the position of ad-hoc director remains permanent.
Executive directors
The directors who participate in the day-to-day management of the company. They are also the whole-time directors of the company. These can be found in the roles of finance directors, marketing directors, etc.
Non-executive directors
The directors who do not participate and are not involved in day-to-day management are the non-executive directors of a company. They don’t hold any executive positions in the company and bring an independent voice along with their own perspective to the board of directors.
Rotational directors
The directors retire by rotation from the company’s board, but they may be reappointed after their retirement.
Woman director
There shall be at least one woman director in a company as prescribed by the Companies Act 2013. This is limited to certain classes of companies as per Section 149(1) of the Act. As per Section 149(2), the companies are given a time period of one year from the date of commencement of the act to comply with the mentioned provisions. In the event of a violation of the same, the company is liable under Section 172 of the Companies Act. The requirements of a female director are given in Rule 3 of the Companies (Appointment and Qualification of Directors) Rules, 2014.
Independent directors
Every listed company shall have at least one-third of its total number of directors as an independent director as per Section 149(4) Companies Act 2013. There have been certain provisions and requirements mentioned in Rule 4 of the Companies (Appointment and Qualification of Directors) Rules, 2014. Companies covered by this rule are required to appoint a higher number of independent directors. This is because of its audit committee composition. Independent directors are not entitled to remuneration. They are given only sitting fees and reimbursement of expenses for participation in the board meetings and profit-related commissions. In order to take an unbiased decision, the concept of independent directors was introduced. Independent directors bring stability and accountability to the boarding process.
Legal position of directors
It is really difficult to explain as to what is the exact legal position of directors in a company. There are certain explanations given by the judges for defining directors, sometimes as agents, sometimes as trustees, and sometimes as managing partners. They are the persons who are duly appointed by the company for the purpose of directing and managing the company’s affairs. All the expressions to which directors are referred, like agents, trustees, etc., are not exhaustive of their powers and responsibilities. It was observed in the case of Ram Chand & Sons Sugar Mills Pvt. Ltd. v. Kanhayalal Bhargava(1966), that it is really difficult to exactly explain the legal position of directors in a company. Judges have summarised it as a multi-dimensional position which is held in the capacities of an agent, trustee, or manager, even though these terms don’t hold the same meaning in a true legal sense.
Directors as an agent
As discussed, a company cannot act by itself in its own capacity. It would always need someone to act on its behalf. A company can only act through directors, and this hence makes it a principal and agent relationship. This relationship gives the directors the power to act and make decisions on behalf of the company. Any contract or transaction made on behalf of the company makes the company liable and not the directors. No liability occurs upon the directors, they only sign and make contracts on the company’s behalf.
In the case of Ferguson v. Wilson (1904), it was established that the directors are the agents of the company. This was established in the eyes of the law that a company cannot work as an artificial person in its own capacity that’s why it needs an agent to operate. In the case of Ray Cylinders & Containers v. Hindustan General Industries Limited (1998), it was noticed that directors are the agents of the company but not of the members of the company. This means that the directors are the agents of the company and not its individual members, except in the case where the relationship between the two arises out of special facts. A company is a different legal entity apart from its members, i.e., shareholders.
In the case of Kirlampudi Sugar Mills Ltd. v. G. Venkata Rao [2003], it was noticed that if the CEO of the company executes a promissory note and borrows money from outside for the company’s use, it cannot be said that he has borrowed money for himself. Even if the company fails to pay the amount promised, there shall incur no liability on the one who borrowed money as an agent of the company. However, in the case of H.P. State Electricity Board v. Shivalik Casting (P.) Ltd. [2003], it was established that if a director gives surety in his own capacity/personal capacity and not for and/or on behalf of the company, then the company cannot be sued for the amount of surety. There were some circumstances that were pointed out in the case of Vineet Kumar Mathur v. Union of India [1996] in which the directors incurred liability on themselves-
In cases where directors contract in their own names rather than the company.
In cases where directors omit or use the company’s name incorrectly.
In cases where directors sign the contracts or agreements in such a manner that it is not evident whether it is the company (principal) or the director (agent) who is signing and who shall be liable for future circumstances.
In cases where directors exceed the allowed limit and borrow in excess of funds.
There are ways in which unauthorised actions can be ratified. In Bhajekar v. Shinkar [1933], it was mentioned that if a transaction made by the director exceeds the power given to him but falls within the ambit of the power held by the company, then it can be ratified by passing a resolution of the company. However, if the company has been struck off by the registrar and dissolved, then it cannot ratify its actions. This is because a non-existent entity cannot initiate action in the first place.
Director as a trustee
In a company, a director is regarded as a trustee as well. A director is known as a trustee because he administers the assets and works toward the interests of the company. A trustee is someone who can be entrusted with the company’s assets and performs towards achieving the company’s goals rather than for their personal advantage. Besides these, a trustee is given powers like allotment of shares, making calls, accepting or rejecting transfers, etc., which are known as powers in trust. In the case of Dale & Carrington Investment (P.) Ltd. v. P.K. Prathapan [2004], it was noticed that the directors have to act within their fiduciary capacity, which means that they have a duty to act on behalf of the company with the utmost care, skill, good faith, and due diligence, most importantly towards the interests of the company that they are representing.
As observed by the Madras High Court in the landmark case of V.S. Ramaswami Iyer v. Brahmayya and Co. (1966), the directors can be rendered liable as trustees with reference to their power to apply funds of the company. A director may misuse these in many ways. Due to this, if legal action is taken against a director with reference to the mentioned offence, then the cause of action will survive even after the death of the director against his legal representative. In both the cases of Percival v. Wright (1902) and Peskin v. Anderson (2001), it was held that the directors of a company owe their duty to the company as a whole, and are not trustees for individual shareholders or owe them a fiduciary duty merely by virtue of their offices. They may purchase their shares without disclosing pending negotiations for the sale of the company’s undertaking.
Director as a managing partner
The directors of a company represent the shareholders’ will and wants. They tend to act on behalf of the shareholders and their goals. Due to this, they enjoy vast powers and can perform many functions that are proprietary in nature. Due to the provisions mentioned in the MOA and AOA of the companies, the board of directors acts as the supreme policy and decision-making authority.
Director as an employee/officer
Shareholders elect directors in a general meeting held by the company. Once the director is elected, he then enjoys the rights and powers that are given to him as per the Act. These powers and rights cannot be taken away by the shareholders and they cannot interfere in the decision-making of the directors as such. Since directors possess such powers and rights, they cannot be termed employees of the company. This is because employees have limited authority vested in them and always work under the directions of the employer and cannot interfere in the employer’s decision-making.
In the case of Lee Behrens & Co., Re [1932], it was seen that it is the shareholders who elect their representatives who shall engage in directing the affairs of the company on their behalf. This means that they are acting in the capacity of an agent in this scenario. It can also be seen that they are not the employees or servants of the company. However, in the case of R.R. Kothandaraman v. CIT (1957), was held by the Madras High Court that since there is nothing mentioned in the law, no one can prevent the director from accepting his position as an employee under a special contract made with the company.
Directors are also treated as an officer in a company for certain matters. They can be held liable for penalties for failure to comply with the law. To summarize the legal position of directors in a company, Jessel M.R can be quoted fromForest of Dean Coal Mining Co., Re [1878], “Directors have sometimes been called as trustees or commercial trustees, and sometimes they have been called managing partners; it does not matter much what you call them so long as you understand what their real position is, which is that they are really commercial men managing a trading concern for the benefit of themselves and of all the shareholders in it. They stand in a fiduciary position towards the company in respect of their powers and capital under their control.”
Conclusion
Directors are the persons who are bound by the law to act in a fair and reasonable manner while fulfilling their duties and company goals. A director acts as an agent and also has a fiduciary relationship with the company. All these roles of the director go hand in hand. There has not been much clarity upon the exact legal position of directors but they are bound by required law if they exceed or misuse their powers. However, directors do have their own independent powers in certain cases, unlike agents who only have to act on the instructions as given by the principal. The directors are also entrusted with the company’s assets and their administration. They must use their powers judiciously and must act in good faith and in the interest of the company.
In the end, it can also be said that the directors have an identity of their own as well. It is just that they possess certain characteristics of agents, trustees, and managing partners, but they are not the whole of it. Hence, it can be said that they are neither agents, trustees nor managing partners of the company. The director’s duties and responsibilities have been clearly defined in the Companies Act of 2013.
Frequently Asked Questions (FAQs)
How many directors can be appointed according to Section 149 of the Companies Act, 2013?
A maximum of 15 directors can be appointed as per Section 149 of the Companies Act, 2013.
In how many companies can a person become a director?
A person cannot be a director in more than 20 companies at a time. In the case of a public company, a person can be a director of a maximum of 10 companies. Section 165 of the Companies Act, 2013 discusses this matter.
Are both shareholders and directors the owners of the company?
Both shareholders and directors have different roles to play. Shareholders are the member/owner of the company, whereas the directors manage the company and its functions.
Is an independent director an employee of the company?
An independent director cannot be an employee, proprietor, or partner of the company in the preceding 3 financial years.
Do private companies need independent directors?
The provisions of independent directors don’t apply to private companies. Companies like joint ventures, wholly-owned subsidiaries, and dormant companies are exempted from the requirement of appointing an independent director.
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This article is written by Daisy Jain, a law student at the Institute of Law, Nirma University. This article analyses the case of Independent Thought v. Union of India.
It has been published by Rachit Garg.
Table of Contents
Introduction
The Supreme Court of India handed down a historic decision on October 11, 2017, upholding every girl’s right to bodily dignity and criminalizing rape during the underage marriage. The Apex Court of the country first outlined the government’s constitutional and fundamental duty to tackle child marriage and uphold the rights of married girls in Independent Thought v. Union of India and Others. India, which has the highest rate of child marriages worldwide and where married girls are three times more prone to being raped than women who are married above the age of 18, is affected by this legislative reform. The article analyses the case of Independent Thought v. Union of India, by discussing the arguments presented by both parties, ratio decidendi, and obiter dicta.
Facts of Independent Thought v. Union of India
On August 6, 2009, a society-registered and non-governmental organisation, http://www.ithought.in/, filed a petition. The NGO specialises in legal studies, legal assistance, and counselling related to children’s rights and other rights that affect children. Many additional non-governmental groups receive hand-holding aid, technical assistance, and legal support from the NGO. Additionally, it supports various states’ governments.
Independent Thought filed a writ petition W.P.(C) 382/2013 with the Hon’ble Supreme Court in accordance with Article 32 of the Indian Constitution to highlight the rights violated of married girls between the ages of 15 and 18.
The petitioner is requesting a writ declaring that Articles 14, 15, and 21 of the Constitution are violated by Exception 2 to Section 375 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’). As stated in Exception 2 of Section 375 of the IPC, it is not rape if a man engages in sexual activity with his wife who is older than 15 but younger than 18 years old with or without her knowledge or consent.
Issue of Independent Thought v. Union of India
Whether sexual activity between a man and his wife, a girl between the ages of 15 and 18, constitutes rape?
Whether the IPC’s Section 375’s Exception 2 is unreasonable?
How discriminatory is Exception 2 to Section 375 of the IPC?
Does the court create a new offence?
Relevant legal provisions
According to Section 375 of the IPC, rape occurs when a male engages in sexual activity with a woman against her will or without her agreement and if all seven of the conditions listed in Section 375’s clauses are met. According to Section 375(6), a male has committed rape if, with or without the girl’s agreement or willingness, he made sexual contact with her while she was under the age of 16. This typically refers to “statutory rape,” in which it is immaterial whether the male who committed the rape of a girl under the age of 18 did so with or without her agreement or desire. Previously, it was deemed rape when a penis entered the vagina, urethra, anus, or mouth, of a woman. But today, it is still considered rape whenever a male places any instrument or other bodily part in a woman’s mouth, urethra, vagina, or anus.
According to Section 375 of the IPC’s Exception 2, a man who had sex with his wife who was over the age of 15 with or without her agreement is not guilty of rape. However, Section 375 of the IPC states that engaging in sexual activity with a girl under the age of 15 is illegal, whether or not she is married and with or without her knowledge or permission. Therefore, the husband will receive an exemption from the charges of rape and will not be convicted of raping her just because she is married, regardless of the female child’s intention or consent, who is over 15 and married.
The court also took into account the Protection of Human Rights Act of 1993, which provides Section 2(1)(d) that everyone has a constitutionally guaranteed right to liberty, freedom, life, equality, and dignity. Forcing a girl child to engage in sexual activity with her husband is a clear breach of her rights, as it would be against her rights to equality, liberty, and dignity.
According to the Protection of Women from Domestic Violence Act, 2005, if the husband of a girl child harms the girl child’s wellbeing, impedes the girl child’s life and safety, whether physically or mentally, or sexually abuses the girl child, the husband is guilty of the act of sexual abuse or of any behaviour that lowers the girl child’s dignity.
In accordance with the Prohibition of Child Marriage Act, 2006 (PCMA Act), a ‘child’ is defined as a male if he is over the age of 21 and a female if she is over the age of 18. A marriage in which one of the contractual parties is a kid is known as child marriage. At the request of the party who is a child and is under the legal age limit for marriage, child marriage may be declared voidable under Section 3 of the PCMA Act.
Accordingly, under Section 9 of the PCMA Act, if a male marries a girl who is under the age of 18, he will be subject to severe punishment of two years in jail or a fine, whichever comes first. Therefore, it is irrelevant whether a male is a child or not; the issue is whether he marries a girl child, in which case he will be subject to consequences. According to Section 10 of the PCMA Act, someone is guilty of child marriage if they execute, direct, facilitate, or conduct one.
Section 11 of the PCMA Act prohibits encouraging or allowing the solemnization of child marriage. Any jurisdictional judicial officer or the court may issue an injunction forbidding the solemnization of child marriages, in accordance with Section 13 of the PCMA Act. Last but not least, the PCMA Act’s Section 14 states that any marriage that is created after a court issues an injunction against it will be regarded as void by the court. A reform made in the State of Karnataka now considers any marriage where one of the contracting parties is a minor to be null and void from the beginning.
The Protection of Children from Sexual Offenses Act of 2012, which the court has also cited, mandates that the child’s best interests should be protected. In accordance with the provisions of the Convention on the Rights of the Child, the Government of India has to protect the best interests of children. According to Section 3 of the POCSO Act, an individual who participates in “penetrative sexual assault” with a female kid also acts in “aggravated penetrative sexual assault” with the girl child who is connected to his wife. The term “aggravated penetrative sexual assault” is defined under Section 5 of the POCSO Act, but it has the same elements as rape under Section 375 of the IPC. It will also result in similar types of harsh punishments; the only distinction is that the girl should not be married under the circumstances of the IPC and the manner of the trial will change. The court ruled that it makes little difference whether a person is found guilty of rape under the IPC or the POCSO because they must ultimately endure similar types of punishment. According to Section 42-A of the POCSO Act, if any other legislation conflicts with the POCSO Act’s provisions, the POCSO Act’s provisions will take precedence since the POCSO Act is a special Act because it only applies to the safeguarding of children’s rights from sexual offences.
The definition of ‘child’ as specified in the Juvenile Justice (Care and Protection of Children) Act, 2015, is a person who is under the age of 18. The JJ Act is also relevant to Article 15(3) of the Constitution, which mandates that the Parliament shall pass specific legislation to support women and children. Children who are at immediate risk or who are in danger before they reach the marriageable age are protected under the JJ act.
The Apex Court has also referred to the fundamental rights that are Articles 14, 15, and 21 of the Indian Constitution. According to Article 21 of the Constitution, the state is required to keep the bodily integrity of girls because they have the right to live with dignity due to this exception. The exception plainly breaches Article 21 since it demonstrates that the husband has complete physical power over his wife and is free to engage in sexual activity with her without the girl child’s consent. The girl child has the right to reproductive freedom and bodily integrity. It is very much possible that getting involved in sexual activity will result in unwanted pregnancies, which will reduce the reproductive possibilities available to female offspring and have an effect on the health of both the kid and the mother. It will eventually cause malnutrition, neonatal mortality, and negative consequences for girl children.
Contention of parties in the case of Independent Thought v. Union of India
Arguments by the petitioner
The petitioner argued that since Section 375 of the IPC defines rape as sexual intercourse with or without her consent when she is under the age of 16 years, whether the girl is his wife or not has no bearing on whether the act constitutes rape. Therefore, it should not be assumed that the man will receive rape immunity under Exception 2 to Section 375 of the IPC just because she is his wife and he has the right to her body.
According to the petitioner’s learned counsel, Exception 2 to Section 375 of the IPC is not only discriminatory but also goes against Article 15(3), which instructs Parliament to make special provisions for women and children. Instead of uplifting these groups and implementing the provisions, however, the girl child is severely disadvantaged, which is at odds with the goals and beneficiaries set forth in Article 15(3).
A female child’s marriage does not automatically imply that she has given her consent to engage in sexual activity with her husband, engage in any other sexual activity, or have conjugal contact with her spouse.
The counsel for the petitioner also argued that just because something has been done traditionally in the past doesn’t imply it will apply in the present and that it will automatically be prohibited as a crime. The difference between a married girl between the ages of 15 and 18 having sex with or without her consent not constituting rape and a girl under the age of 18 having sex with or without her consent constituting rape shows a blatant bias.
For the reasons outlined by the petitioner, a girl who has been married and is younger than 18 years old lacks emotional, physical, and mental stability. This will negatively affect the girl child’s general well-being, her physical and mental health, as well as her nutrition, education, and employability. Married girls under the age of 18 have never, under any scenario, given their implied or explicit consent to engage in sexual activity.
Because a female under the age of 18 will have emotional impacts and potential medical issues, the marriage age is minimised to 18 years of age. The majority of child marriages result in unintended births at such a young age, which causes neonatal mortality and poor health for both the mother and her child.
The petitioner’s learned counsel further stressed that the Law Commission of India’s 84th report noted numerous inconsistencies in the laws relating to the rape of girls under the age of 18. In their 172nd report, the Law Commission recommended adding an exception to Section 375 of the IPC to raise the age from 15 to 16 so that sexual activity with her husband would not constitute sexual assault if she was more than 16 years old. But the Hon’ble Supreme Court did not accept the LCI’s proposal. Therefore, it is absurd to assume that the girl who is married has consented to any sexual intercourse. When necessary, the law requires us to develop and adapt. Why is it that only in Exception 2 to Section 375 of the IPC, the age of a married woman is 15 years old when the age of a girl is 18 years in every other law? As a result, it is ruled to be arbitrary in character because it is unfair and inequitable to the rights of the girl child.
It is apparent when an action is arbitrary in character that it violates our Constitution. Therefore, it is clear that when a constitutional provision is broken, it is arbitrary in character and can be suppressed or declared to be unconstitutional. The arguments presented by the respondents were illogical and arbitrary in character. It’s not always clear that anything will be against the standards of the current society and therefore be considered to be against the law and a criminal offence just because it has been done for a long time as a customary practice.
Arguments by the respondents (UOI)
The arguments offered by the respondents against the counsel appearing on behalf of the petitioner were as follows: they claimed that the country’s economic and educational progress is bad and not getting better. In order to protect the rights of husband and wife in criminalising sexual actions between them, they agreed to keep the age of 15 years as specified in Exception 2 to Section 375 of the IPC.
In accordance with the National Health Survey’s third report, 46% of women are under the age of 18. In India, there are also thought to be 23 million child brides. Therefore, criminalising the consummation of marriage and tying it to such a terrible and heinous crime as rape would be entirely wrong and unrealistic. Given India’s socioeconomic situation, it would be wrong to punish child marriage as per Exception 2 to Section 375 of the IPC because it has long been a common practice that is based on societal norms and basic realities as well as tradition.
In its 172nd Report, the Law Commission of India (LCI) recommended that there should be an increase in the age of the wife to 16 years old. However, this recommendation was abandoned following extensive consultations with various stakeholders. Simply because it was a custom shouldn’t be enough to convict the husband of rape if the marriage was consummated at the age of 15. Because it is required that laws be developed in accordance with standards that did not negatively impact a particular class or community, taking into account social and historical traditions and norms, the 15-year limit should remain in Exception 2 to Section 375 of the IPC.
It was said that the Constitution provides for recourse for children who have not reached the age of 18 and are in immediate danger by citing the Juvenile Justice (Care and Protection of Children) Act, 2015. Before determining whether or not Exception 2 to Section 375 of the IPC is arbitrary, it is important to understand whether a law, regulation, or act can be invalidated just because it is arbitrary in character. In the case of Indira Gandhi v. Raj Narain (1975), the insertion of Article 329A was challenged due to its arbitrary nature. The true meaning of the rule of law, as described by A.V. Dicey, was undermined and harmed by these arbitrary clauses.
According to Exception 2 of Section 375 of the IPC, the husband is exempt from being charged with rape, but under other legal provisions, he will be held accountable for other offences. For example, if the husband beats a girl child and engages in sexual activity with her, he will be held accountable under Sections 323, 324, and 325 of the IPC, but he cannot be held accountable for the offence of rape. This is unusual because the husband will be found guilty of less serious offences.
One of the questions presented during the proclamation of judgement is whether the court is creating a new offence by partially or completely invalidating a particular law or rule. It does not imply that the court cannot create a new offence, but there is no question that by partially invalidating Section 375 of the IPC, the court is establishing a new offence.
Ratio decidendi
Justice Madan Lokur
He claimed that a child is a person under the age of 18 who is authorised to safeguard her human rights, including the right to live with dignity, and she must be safeguarded from domestic violence as well. He cited the Law Commission of India’s 172nd Report, the Human Rights Council, the Protection of Human Rights Act of 1993, and the Juvenile Justice Act of 2015.
If the husband of a girl child engages in sexual activity with her and conducts a penetrative sexual assault, he is guilty of an offence under the POCSO Act. Exception 2 of Section 375 IPC, which is not rape as specified under this exception, is contained in this system of pro-child legislation. In order to empower women and end their socioeconomic disadvantaged status, Article 15(3) of the Constitution was included, which could lead to gender equality. Furthermore, there is no question that Article 21 of the Indian Constitution defines a woman’s right to choose her reproductive options as a “personal liberty.”
Rape should be viewed as a horrific crime since it traumatises the victim and takes away her right to choose whether or not to have children. This warrants serious consideration and discussion. As a result, there is a conflict between the POCSO Act and IPC provisions. Thus, under Exception 2 of Section 375, the rape of a married girl between the ages of 15 and 18 is not a crime under the IPC; rather it is a crime of aggravated penetrative sexual assault under Section 5(n) of the POCSO Act and is penalised under Section 6 of the POCSO Act.
Justice Deepak Gupta
According to him, the Indian Constitution’s Articles 14 and 21 are the key topics of concern in this case. The legislative history makes it abundantly obvious that everyone under the age of 18 is a child since a person under the age of 18 is still developing and does not understand the repercussions of his or her actions. He continued by saying that it is entirely up to Parliament to determine the legal age for marriage as well as the age at which consent must be given under clause(6) of Section 375 IPC.
Additionally, he expressed his opinion and agreed with Justice Madan that a girl under the age of 15 who is forced to be exposed to sexual activity by her spouse suffers harm to her body and mind because they have not yet fully grown.
As a result, the state cannot be used to defend the custom and sanctity of girl-child marriage, which is a complete violation of Articles 14, 15, and 21 of the Indian Constitution. Insofar as girl child’s issues are concerned, there are a few other factors that render Exemption 2 of Section 375 IPC totally discriminatory.
Obiter dicta
The Indian constitution’s Article 15(3) was taken into consideration, and the top court deduced from Dr. B. R. Ambedkar’s text that the amendment backed particular provisions for women and children in order to incorporate them into society and free them from patriarchal dominance. However, by providing particular arrangements for Scheduled Castes and Scheduled Tribes, the same merger could not be accomplished. It would also isolate them from the normal population and have the opposite impact.
The court acknowledged everyone’s right to privacy, including unrighteous women, while taking into account the right to physical integrity and reproductive choice. Judges also took into account the need for legal penalties for voice sample collection, which may have an impact on women’s bodily integrity. According to the court’s ruling in response to the respondent’s defence, “The only thing that can destroy the “institution” of marriage is legislation making it illegal and punishable. Marriage is not institutional; it is personal. Marriage is something which is personal and not any ceremony institutionalised by the government. The institution of marriage can only be destroyed if there is a law which makes it unlawful and punitive.
The court stated that “the subject matter and the viewpoint of the statute are definitive of the question of whether a statute is a general law or a special law” while interpreting the special laws for children. Therefore, a statute may be a special law for particular reasons. It might, nevertheless, be a general law for various purposes contrasted to another statute.
In his ruling, Justice Deepak Gupta stated that in our constitutional system, where there is a separation of powers, each source of power must acknowledge the other. He did this while examining the wisdom of Parliament in restricting the age of 15 in exception 2 of Section 375 of the IPC. This Court must treat the Parliament with the deference that is due. One cannot and should not blame lawmakers for being ignorant. He also pointed out that courts are responsible for declaring laws invalid when it can be proven that they violate the constitution or a citizen’s fundamental rights.
Finding of the court
After contemplating the facts of the case and other factors pertaining to the petition, both judges came to the conclusion in independent judgments that Exception 2 of Section 375 of the Indian Penal Code, 1860 as it relates to girl child under the age of 18 is liable to be quashed for it is arbitrary and a violation of a girl child’s rights that is not plausible and equitable and also infringes Article 14 and 15 of the Constitution. In addition, it goes against POCSO’s rules, which must be followed. It was decided that Exception 2 to Section 375 of the IPC should be read down since it is objectionable and unconstitutional. The fact that there is already an offence under Section 375 of the IPC and under Sections 3 and 5 of the POCSO Act eliminates the possibility of introducing a new offence. In order to avoid creating any new offences, the Supreme Court read down Exception 2 to Section 375 of the IPC.
Conclusion
By delivering this historic and landmark verdict, which allowed the female child the opportunity to live in a better, freer, and safer environment, the Independent Thought case took a significant step towards recognizing the rights of the married girl child through this petition. Finally, the court read down Exception 2 to Section 375 of the IPC, which had previously protected the husband from rape charges and allowed him to have sex with his wife with or without her consent as long as she was over the age of 15. As a result of the court’s quashing down of this exception, it is now a heinous crime to have sexual intercourse with a wife without her consent when she is above the age of 15 years. The court preserved the lives of countless young girls by reading down this ruling, giving women the same rights as males.
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“This gendercide must be tackled by a revision of all laws.” Killing is killing, and placing the word ‘honor’ in front of it should never be justification enough for allowing its escalation. ” -Aysha Taryam, The Opposite of Indifference: A Collection of Commentaries
Table of Contents
Introduction
Indian society is a multilateral,multi-traditional society where there are different types of gentries, classes, creeds, and sections where everyone believes that their class is stylish on the whole and every person of that class should follow their customs and traditions throughout their lives. Where women are considered the deliverer of honour to the family.
A rising number of honour killings in India has been reported over the last three months. These so-called “honour codes” are the product of deeply embedded patriarchal social and artistic prejudices. Honour killings are also common in South India and the western Indian countries of Maharashtra and Gujarat.
In this society, women who attempt to transgress their rights are considered an attack on the artistic morals of the community and are vigorously resisted. This counter-conditioning taken by her family members in the name of honour leads to honour killing.
Substantially, in these cases, women are the targets, but lately, there are some cases where males are also targeted and boggled in the name of honour payoff. Though there are no specific laws governing similar types of killing by family members.
What is honour killing
Human Rights defines “honour killings” as acts of violence, generally, murder, committed by manly family members against women of the family, which, according to family members, bring downfall and reduce their respect among their guests. Report No. 242 on Honor Crimes by the Law Commission of India According to the study, these types of cases are increasing in northern India over time.
A large number of honour killing cases happen every day in India. This is veritably abusive for ultramodern and developing India. These acts are frequently grounded in ideas of the “honour” of the family whose son has married outside estate considerations. Despite being brutal and current, these crimes are frequently underreported and inadequately remunerated. An honour payoff is the murder of a family member by fellow family members, in which the perpetrators believe the victim to have brought dishonour upon the family, clan, or community.
Laws regarding honor killing
Indian law
In India, as of now, there’s no specific codified law to deal with honour killings. The Protection from Lynching bill was introduced in Parliament to reduce the number of crimes for honour killing, but it is currently dormant. Still, the station of the bar, superintendent, and council on similar cases can be anatomized with the help of judicial precedents and other codified laws which hold similar practices inferior.
The articles from the constitution which cover honour killing are:
The problem of honour killing is rising daily, indicating the need to address the circumstances of honour killings as the European Parliamentary Assembly in 2009 noted in their Resolution 1681, which noted the dire need to address honour crimes. The bones regarding the provocation defence that explicitly limit the heirs of the defence to men can be seen as directly discriminative, as by explicitly mentioning only one coitus, the other is barred. Also, the Islamic qisas and diyat vittles can be seen as directly discriminative as they separate between remedies for murder grounded on coitus. Similar laws can also be seen as substantiation of institutionalized demarcation against women.
Thus, for instance, Composition 98 of the Jordanian Penal Code is a clear example of circular demarcation as it is used by Jordanian courts. Also, the so-called “artistic defence” may be laterally discriminative. Due to the laterally discriminative operation of Article 98 of the Penal Code, Jordan, as a party to the ICCPR, violates the non-discrimination clauses of the Covenant.
Also, similar laws violate the right to equivalency before the law as provided for in Article 14 of the ICCPR. Under CEDAW, directly discriminative laws relating to recognizing killings can be seen as violations of Section 2(c). Arguably, laws similar to provocation defence laws give a defence to citizens, mainly men.
Also, Section 2(c) is applicable in cases of circular demarcation as it obliges countries to ensure that women are defended against any form of demarcation. In this environment, the operation of the law results in discriminatory goods. Thus,e.g., Jordan violates Article 2 due to the court operation of Article 98 of the Penal Code. Also, frequently with mischievous goods for the women concerned, it implies that the government of Pakistan has failed in its duty to ensure the protection of women against demarcation through ” competent public bars.”
What the law ought to be for honour killings
Due to the rise in honour killings, the Indian government is amending India’s penal code, 1860, to address honour killings. But there are a few sections in our constitution for honour killing. These are as follows:
Sections 299 to 304 are culpable homicide which penalizes anyone accused of a murder that does not amount to murder. The punishment for murder is a life judgment or death and forfeiture.
Section 307 is an attempt to murder, which has a sentence of over 10 years and a fine. However, the penalty can extend to life imprisonment if a person is hurt. Section 308 punishes the attempt to commit reproachable homicide with imprisonment for more than three years, a fine, or both.
Sections 120A and B provide information about anyone who is a party to a felony conspiracy.
Sections 107-116 punish people who assist in crimes such as murder and reprehensible homicide.
Sections 34 and 35 penalize felonious acts done by several people in the headway of common intention.
Case law
Smt. Laxmi Kachhwaha vs. State of Rajasthan (1999)
In this case, a PIL was filed in the Rajasthan High Court against the Khap Panchayat who were operating illegally. The court came out to the conclusion that the Khap panchayat should be restricted for their operation and their people should be behind the bars.
Manoj Babli case on March 11, 2011
Two victims, Manoj and Babli, are involved in this historic case of an honour killing. The Khap Panchayat determined that they should both recognize each other as their brother and sister because they both loved one other and had married in defiance of the Khap Panchayat’s wishes. They weren’t prepared to accept this, though. Insecticides were compelled down their throats when they protested. After being strangled, their bodies were dumped into the canal. After this, some family members who were involved in this crime got arrested and sentenced to life imprisonment.
Conclusion
Honour killings are India’s most brutal and violent crimes against anyone. It has a long history in Indian culture and is still rehearsed in numerous corridors of the country. Cases similar to these show that further than half of the Indians still lead lives within the strong pillars of the estate system and indeed moment youths don’t have the power to make opinions regarding their own lives.
To see that indeed moment, people blindly commit similar barbaric crimes and consider it an act of sanctifying the impure shows that India has not streamlined. Development has to be from the very base, the core. Or differently, it’s just a concave rustic structure eaten on the inside by the termites that ultimately come crashing down. Caste, religion, communities, and traditional beliefs are the main reasons. Indeed though the all Domestic Women’s Association offered multitudinous recommendations, the government took no action, and India still lacks a specific law.
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Contrary to what the title may imply, assurance and sample issues are the “bread and butter” of commodity arbitrations, according to Peter MacDonald Eggers QC of 7 King’s Bench Walk.
It is a subset of international commercial arbitration that has developed over time and become more structured and specialized in international commodities trading. With the expansion of commerce, commodity markets originally emerged in Great Britain in the 19th century, particularly during the Victorian period, before spreading to the rest of the civilised world. For strategic reasons, London continues to be the major location for resolving disputes over a variety of commodities, notably wool, certain minerals, cereals, lipids, seeds, and fats, as well as coffee, cocoa beans, sugars, and nuts.
Arbitration conducted in accordance with the regulations of different trade organisations is one of the dispute settlement options outlined in standard forms of contract. Comparatively speaking, commodity arbitration under some arbitral organisations, such as the ICC or the LCIA, varies greatly from traditional commercial arbitration.
The Arbitration Act of 1996 has limited the ability of these issues to go to court, but it would have the effect of providing less direction in some areas. “When handling a commodities dispute, especially one involving a quality concern, one often finds themselves dealing with an ageing authority.”
A quick mechanism was required owing to the nature of the goods or products involved in such disputes. Therefore, the mechanism of dispute resolution was adopted, especially through arbitration. And that is how the concept of commodity arbitration originated.
What is a commodity?
A commodity is a fundamental thing that is used in trade and may be exchanged for other items of the same nature. The majority of the time, commodities are utilised as raw materials to create other services or products. Therefore, a commodity is often a raw resource utilised to create completed items. Contrarily, a product is a finished good that is offered for sale to customers.
Features of commodity arbitration
Despite the fact that each trade organisation has its own set of dispute settlement guidelines, there are specific universal characteristics of commodities arbitration that are covered herein.
Commercial Tribunals
The arrangement of arbitral courts represents one of the most notable distinctions between commodities arbitration and conventional commercial arbitration. Contrary to commercial arbitration, in which a tribunal is normally made up of arbitrators or attorneys, commodity arbitration tribunals are frequently made up of merchants or other participants in the commodity’s trading.
Time Limits
Usually, time constraints for starting proceedings are quite short under the procedural rules regulating commodities arbitration. Traders sometimes use such time restrictions as a negotiating tactic. For instance, vendors may negotiate a lower contracted cost in exchange for a limited time period for claims pertaining to, say, amount or weight. In some situations, claims are barred if a deadline is missed. For example, the Federation of Cocoa Commerce’s Arbitration Rules and Appeal include strict deadlines for initiating the arbitration, preventing parties from pursuing a banned claim.
Lawyer’s Absence
Some commodity groups’ regulations forbid parties from having legal representation. Since the restrictions only apply to active attorneys, it is feasible to identify parties who are represented by other competent experts, such as academicians or impartial arbitrators.
Procedure for Appeal
Multi-tier appeals options are an additional characteristic of commodities arbitration. In contrast to ordinary commercial arbitration, the loser party in commodity arbitration frequently has the option of appealing to a second tribunal or board of appeals within the framework of the trade organisation.
Three to five adjudicators normally make up the board of appeals. A de novo hearing of the matter is required as a component of the appeal, and both parties may present fresh arguments and new evidence.
The obligation of oral remarks is another aspect of the hearing in the appellate phase. Although the majority of commercial arbitrations are performed on paper, witnesses or specialists in commodity arbitrations sometimes need to be cross-examined at hearings.
String Arbitration
Commodity trading often involves continuous sales and re-sales of commodities between several parties. Contracts known as “string contracts” have the same basic terms and conditions for all parties, except for clauses relating to the dates and pricing.
String agreements come with the possibility of contradictory outcomes: if a disagreement arises over the terms of a good or its quantity, many parties might bring separate legal actions addressing the same issue.
To avoid inconsistent results, the arbitration rules of several trade organisations require that any quality or condition issue be resolved between both the original seller and the final customer as if they were parties to a single contract. However, the arbitrator’s decision is final and binding on all third parties, and it can be applied by any party directly to the party with whom it entered into a contract.
The norms of the relevant trade organisation apply to the appellate rights in string arbitrations. Each participant in the string typically has the option of appealing to the appropriate authority.
The article further explains the meaning of trade wars and summarises an arbitration proceeding conducted in accordance with the norms of various important trade groups.
Trade wars
Trade wars have followed nearly every armed conflict or partisan confrontation in human history, with adversarial powers prepared to engage in the most extreme measures in order to prevail. This is not unexpected because trade has a direct bearing on the economy, which in turn impacts a nation’s capacity to successfully battle and defend.
However, to comprehend what “trade war” implies, we must check the most recent developments. We are not required to dig into history. Much like in the earlier years, these measures today form a crucial component of every global war: trade barricades, sanctions, tariffs on imports, caps and licences, favouritism, and numerous more “tools” are proactively employed by global actors for their respective ends. The manufacturers and trade firms of both nations, who are the least “guilty” players in the market, naturally bear the brunt of such disputes. As a consequence of a variety of limitations and bans, which frequently prove catastrophic for their firms, these competitors are brazenly forced to endure enormous losses.
The commodities trading industry is particularly vulnerable because it is potentially possible that events could arise that hinder contract performance over the prolonged period of time between the contract’s completion and its implementation.
Some trade associations
The Grain and Feed Trade Association
The Grain and Feed Trade Association (GAFTA) is a group of grain traders that was founded in 1971. Contracts for the trade of grains are produced by the GAFTA with standardised clauses.
All GAFTA contract issues are submitted to arbitration (Arbitration Rules No.125). Within the time frame specified in the GAFTA Arbitration Rules, the contracting party may begin arbitration by intimating the other party.
The GAFTA Board of Appeal, which is chosen by the GAFTA itself and not by the parties, accepts appeals from all parties. A de novo hearing would be held by the Board of Appeal. Parties are therefore permitted to provide fresh arguments and proof. According to Rule 10.1(c), an appeal must be filed within 30 days of the award’s issuance.
The London Metal of Exchange
The London Metal Exchange (LME), founded in 1877 but with roots dating back to the sixteenth century, is the global trading centre for metals. When the LME was first established, it was done so with the intention of defending the metals industry by establishing a unified market and uniform terms for all transactions.
The LME Regulations and Rules, comprising the LME Arbitration Regulatory requirements, set down the guidelines that apply to metals trade through the LME. All claims arising out of “Exchange Contracts” must be resolved by arbitration following the LME Arbitration Guidelines, according to Part 4 of the LME Contract Regulations.
A party desiring to begin arbitration must, per the LME Arbitration Rules, deliver a notice outlining the scope and characteristics of the conflict as well as a specification of the relevant contract. On the day the respondent gets the notification, the arbitration is assumed to have started.
Unless the parties have agreed to a different number, the default number of arbitrators in LME arbitration procedures is two. A three-member arbitral panel or a lone arbitrator could also be proposed by the parties. In the event of a dispute, the LME Secretariat could step in.
Although there is no particular string arbitration rule in the LME Arbitration Rules, there are rules for the unification of arbitrations if one might occur.
According to Section 69 of the 1996 English Arbitration Act, parties to LME arbitrations have the option to omit this power, but they can appeal on legal issues. The High Court in London hears cases involving the execution of LME arbitration rulings.
The Federation of Oils, Seeds and Fats Associations
The trading of seeds, oils, and fats is the only focus of the Federation of Oils, Seeds, and Fats Associations (FOSFA). Sunflower seeds, rapeseed, vegetable oils, and marine oils are covered by a variety of standard methods and criteria that are included in FOSFA contracts. FOSFA contracts also call for arbitration with knowledgeable market participants.
Notification to the respondent must be delivered no later than 21 days after the shipment has concluded if a party wishes to assert claims about the nature and/or conditions of the goods. The chosen arbitrator’s identity (name) must be included in such a notification. Following that, the respondent gets seven days to reply and choose an arbitrator. When it comes to claims involving payments, the notification must be delivered no later than 60 days after the issue first surfaces.
The claims are presumed to be disqualified if the deadlines are not met unless the arbitrator rules differently. In accordance with the FOSFA, complaints concerning the quality and/or state of products deriving from contracts that are substantially identical on all material issues should be resolved in a single arbitration, much like the GAFTA Arbitration Rules. Any decision taken is final and is susceptible to appeal. Last but not least, after receiving notice of the decision, litigants in FOSFA arbitration have 42 days to appeal the decision.
Federation of Cocoa Commerce
The Cocoa Association of London and the Fédération du Commerce des Cacaos merged to form the Federation of Cocoa Commerce (FCC). The two organisations merged intending to harmonise cocoa contracts and open up the cocoa bean market internationally.
Contractual disputes must be resolved through arbitration in accordance with the FCC Arbitration Rules, which are governed by English law. A written notice of arbitration containing information about the agreement and the disagreement must be sent to the responder in order to start an arbitration proceeding.
Then, three arbitrators who would act “impartially and fairly” will be chosen by the FCC Secretariat. Such appointments could be questioned by parties without a reason.
Only issues involving the quality and/or condition of the items are eligible for string arbitration under the FCC Arbitration Rules. The contract and other pertinent documents must be provided to the arbitral tribunal by the party filing the case. Whether such contracts qualify as “string arbitration” is up to the arbitral panel. It must be assumed that the original seller and ultimate purchaser of the string were represented by the FCC Secretariat when it constituted the arbitral panel. Any decision can be appealed, and all parties involved must abide by it.
Case laws
Freudenberger v. Banque Delubac
As a result of an arbitration agreement stipulated both the jurisdiction of the Paris International Court of Arbitration (PICA) as well as the application of the norms of another organization, the International Seed Federation (ISF), along with PICA’s authority, the Paris Appellate Court heard a request for vacating an award where the arbitral panel retained jurisdiction. As a result of the first institution’s separation from the second institution, the applicant claimed, the first institution was no longer able to exercise jurisdiction over the conflict. The Paris Appellate Court denied the motion to set it aside despite the parties’ choice to use another institution’s procedures, stating their intent to abide by those regulations was evident in their decision to submit their disagreement to the institution’s decision-making process.
In deciding an appeal award under the FCC Arbitration and Appeal Rules, the FCC Appellate Board relied on items that were not “in issue” before them, among other things. According to Mr Justice Bryan in the Commercial Court, there was a gross inconsistency in violation of sections 68(2)(a) and 33 of the Arbitration Act 1996 (AA 1996), resulting in material unfairness for the claimant. The Board found that the parties had not been able to make arguments regarding (i) whether PBO (respondent and counterclaimant in the arbitration) was a claimant in the English court and had demonstrated that it did not intend to execute specific contracts, or (ii) whether CODON (a third defendant in the English court; a party added to the arbitration) had the right to annul the agreements (iii) the Board’s authority over particular supplementary claims.
Additionally, they rejected requests to revise a statement of the case that included arguments that would have significantly changed the positions of the parties. The claim was specifically contested in the updated statement of a case due to (i) the deadline for filing the claim and (ii) the claimant’s assignment of some obligations. It should be emphasised that the Board decided the appeal process based on the written record and without holding an oral argument.
Conclusion
Commodities disputes have an inherent risk element that must be considered when conducting business with other nations since they are, sadly, a component of their present economic and commodities policies. Countries are always prepared to impose commodity barriers to punish rivals to the greatest extent necessary, usually for political purposes. A commodity dispute results in losses for both parties, just like any other conflict.
Given the intricacy of the challenges, the number of transactions, the parties engaged, and the sum of money at stake, resolving disputes that arise from commodity transactions could be difficult. So, arbitration has been successfully used to swiftly, discreetly, and economically settle disputes involving commodities. Instead of a judge and jury, parties in an arbitration procedure have their disagreement settled by unbiased individuals knowledgeable about the issues.
So one can say that arbitration in the commodities sector has a significant impact on resolving commodities disputes and likewise, the organisations must inculcate more of it, as it is the best practice available.
This article is written by Kishita Gupta and Shristi Suman, a second-year student of Symbiosis Law School, Hyderabad and Vithi Khandelwal, a first-year student at Institute of Law, Nirma University. In this article, the landmark judgment of the case Justice K.S. Puttaswamy (Retd.) and anr. V. Union of India has been discussed.
It has been published by Rachit Garg.
Table of Contents
Introduction
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India is a landmark case and the judgment was given by the Hon’ble Supreme Court of India. The judgment given in the case by the Bench gave a new perspective to the Right to Privacy of the citizens. It was held that the Right to Privacy is a Fundamental Right under Articles 14, 19 and 21 of the Indian Constitution.
The Hon’ble Court upheld the Aadhaar Act and stuck down the provision of the Act which was unconstitutional. It was held by the Court that the Right to Privacy of the citizens has to be protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. The Court explicitly overruled the previous landmark judgments of the Supreme Court Kharak Singh vs State of UP and M.P Sharma vs Satish Chandra in which it was held that Right to Privacy is not a Fundamental Right of the citizens under the Indian Constitution.
To know more about the constitutional validity of Aadhar Act in the case of Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India in brief, please refer to the video below:
How to read the Puttaswamy judgement
The 547-page verdict includes numerous insightful observations and six opinions. However, it is crucial to remember that only the majority view in a judgement is conclusive in regard to subsequent instances. In this case, the plurality opinion was written by Chandrachud J., on behalf of four judges (Kehar C.J., Agrawal J., Nazeer J., and himself), whereas the remaining five judges (Nariman J., Kaul J., Bobde J., Sapre J., and Chelameswar J.) wrote concurring opinions.
Therefore, Justice Chandrachud’s opinion is the ‘plurality’ opinion, but it does not represent the majority because it has not been signed by five or more judges in total. Similar to dissenting opinions, concurring opinions are also not legally binding and do not set a precedent for other cases. As a result, the only element of the decision that is binding and has the signatures of all nine judges is the order.
Judgements on privacy before Puttaswamy
M.P. Sharma v. Satish Chandra (1954)
The right to privacy was the subject of this first case to address it, and the eight-judge bench firmly decided that it is not a basic right.
The power of search and seizure is an overriding State authority for the protection of social security and that power is necessarily regulated by law in any system of jurisprudence. We have no justification to convert it into a completely different fundamental right through some process of strained construction when the Constitution makers have thought fit to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the Fourth Amendment.
Kharak Singh v. State of U.P. (1964)
The right to privacy is not a guaranteed right under our Constitution, and thus the attempt to track out a person’s whereabouts, which is only a way in which privacy is invaded, is not a violation of a basic right guaranteed by Part III, according to a 4:2 majority of a 6-judge bench in the Kharak Singh case (1964).
To express the minority viewpoint, K. Subba Rao, J., and J.C. Shah, J., said in their respective opinions that the right to personal liberty includes not just a right to be free from limits placed on his movements, but he is also free from encroachments on his private life. Although the right to privacy is not officially stated as a fundamental right in our Constitution, it is a necessary component of human liberty. It was further observed while defining the ‘right to personal liberty’ that it is a right of an individual to be free from limits or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated methods.
Gobind v. State of M.P. (1975)
According to the three-judge bench in this case, which held that the right to privacy is not absolute, it is not necessary that surveillance by domiciliary visits would always be an unreasonable restriction on the right of privacy, depending on the character and antecedents of the person subject to surveillance, as well as the objects and the limitation under which surveillance is conducted. Further, it was said that legislation imposing reasonable restrictions upon it for the compelling interest of the state must be upheld as legal since the right to privacy of movement cannot be absolute.
People’s Union for Civil Liberties v. Union of India, (2004)
According to the three-judge panel in the present case, “Right to privacy is secondary to that of State security.”
State of Maharashtra v. Bharat Shanti Lal Shah (2008)
Although listening to others’ conversations violates an individual’s right to privacy, a three-judge panel in the present case found that the right can be limited in accordance with legally sound procedures. The court must therefore ensure that the process itself is fair, just, and reasonable and is not arbitrary, whimsical, or oppressive.
District Registrar and Collector v. Canara Bank (2005)
Every citizen has a right to protect their own privacy, according to a division bench in District Registrar and Collector v. Canara Bank (2005). The right to privacy cannot be asserted when an issue is included in public records, including court documents.
Supreme Court Advocates-on-Record Assn. v. Union of India, (2016)
In this case, the issue involved the constitutionality of the 99th Constitutional Amendment and the National Judicial Appointments Commission Act, 2014 (NJAC Act). The 5-judge bench stated that the balance between transparency and confidentiality is very delicate and that if some sensitive information about a particular person is made public, it can have a far-reaching impact on his or her reputation and dignity. The NJAC Act and the 99th Constitution Amendment Act do not address an individual’s privacy concerns.
The Court, in an effort to find a balance between the right to know and the right to privacy, stated that the right to know is not a fundamental right, but at most, it is an implicit fundamental right, and it is hedged in with the implicit fundamental right to privacy that all persons enjoy.
Summary of facts
The Aadhaar (Authentication) Regulations, 2016, the PML (Maintenance of Records) Fifth Amendment Rules, 2017 and all notifications issued under Section 7 of the Act, which made Aadhaar mandatory for obtaining various benefits, have all been the subject of legal challenges even after the Aadhaar scheme received statutory backing with the passage of the Act in 2016. The claim that the Aadhaar scheme and the Act infringed the right to privacy was one of the main criticisms levelled against them.
Along with the substantive challenge based on the right to privacy, the enactment of the Act as a Money Bill in accordance with Article 110 of the Constitution of India was contested because it did not require a Rajya Sabha vote.
‘Unique Identification for BPL Families’ was a project which was initiated by the Government of India. A Committee was set up for the project. The creation of a Unique Identification database was suggested by the Committee for the said project. The project was decided to be set up in three phases.
In January 2009, the Planning Commission of India passed a notification on UIDAI (Unique Identification Authority of India). In 2010, the National Identification Authority of India Bill was passed by the Commission. Retired Justice K S Puttaswamy and Mr. Parvesh Sharma in November 2012 filed a PIL Writ Petition in the Supreme Court challenging the validity of Aadhaar.
The scheme was challenged as it was violative of Fundamental Rights. The scheme violated the right to privacy under Article 21 of the Indian citizens. After filing this writ petition, a series of orders were passed. The Aadhaar Act was passed in 2016. The petitioners then filed another writ petition challenging the vires of the Act. This writ petition was then merged with the previous one and was treated as one writ petition.
Jairam Ramesh who was the Former Union minister and Congress leader moved Supreme Court in May 2017. He challenged the decision to treat the Aadhaar Bill as a money bill.
On 24th August 2017, the Supreme Court ruled that the right to privacy is a Fundamental Right under Article 21 of the Indian Constitution. On 17th January 2018, the hearing of Aadhaar Case was started in Supreme Court. The Supreme Court on 25th April 2018 questioned the Centre on linking the Aadhaar with mobile. On 26th September 2018, the Supreme Court held Aadhaar card to be valid but struck down certain provisions such as mandatory linking of Aadhaar with mobile, bank accounts and school admissions.
Why was there a need to constitute a nine-judge bench to decide upon the right to privacy
The debate over whether privacy is a fundamental right first surfaced in 2015 before a three-judge Supreme Court panel that was examining the constitutionality of the Aadhaar system. After that, the Attorney General claimed that even though the right to privacy had been recognised by the Supreme Court in a number of decisions, Part III of the Constitution did not protect this fundamental freedom because the larger Supreme Court benches in the M.P. Sharma (8-judge bench) and Kharak Singh (6-judge bench) cases refused to agree that the right to privacy was guaranteed by the Constitution. Consequently, in order to guarantee “institutional integrity and judicial discipline,” this panel sent the case to a five-judge bench. The five-judge panel then referred the constitutional issue to a bench of nine judges, who were even more qualified to make a final decision about the privacy right.
Identification of Parties
Petitioner- Justice K.S.Puttaswamy (Retd).
Respondent- Union of India.
Bench- Justice D. Misra, Justice D.Y. Chandrachud, Justice A Bhushan, Justice AM Khanwilkar, Justice A Sikri.
Issues before the Court
Whether the Aadhaar Project has a propensity to create a surveillance state and is thus unconstitutional based on this ground?
Whether the Aadhaar Project violates the right to privacy of the citizens and is unconstitutional based on this ground?
Whether Section 7 and 8 of the Aadhaar Act also includes children?
Whether the following provisions and Regulations of the Aadhaar Act are unconstitutional:
Whether the Aadhaar Act can be treated as a ‘Money Bill’ within the meaning of Article 110 of the Indian Constitution?
Whether Section 139AA of the Income Tax Act, 1961 violates the right to privacy of the citizens under the Indian Constitution?
Whether Rule 9(a) of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005 and the notifications issued thereafter, which mandate linking of Aadhaar with bank accounts, are valid under the Indian Constitution?
Whether Circular dated March 23, 2017, issued by the Department of Telecommunications which mandates the linking of the mobile number of the citizens with Aadhaar is illegal and unconstitutional?
Whether certain actions which were taken by the respondents are in contravention of the interim orders passed by the Court?
Contentions by Parties on issues
Petitioners
The petitioners contended that the planning of the Aadhaar Act by its very virtue is probabilistic in nature. The Act aims to extend subsidies, benefits, and services to society. It is possible that rather than providing these benefits, subsidies, and services to the section of society for which these are meant, it may end up excluding them from receiving such beneficiaries.
The main arguments were that the Act may take away the rights and liberties of the citizens of the country which are guaranteed to them under the Indian Constitution. Strict implementation of the Aadhaar Act can be a serious problem as it is contrary to the Fundamental Rights which are given in the Indian Constitution to the citizens of the country.
The Aadhaar was in contravention to the Constitution and had the potential to enable an intrusive state to become a surveillance state (a state in which the Government has the ability to monitor the activities of its citizens) based on the information that would be collected from each individual by creating a joint electronic mesh.
It was contended that the Right to Privacy of the citizens was being violated. Right to Privacy is an integral part of Article 21 of the Indian Constitution i.e. Right to life and liberty. The Act imposes restrictions that are not provided under Article 19 as reasonable restrictions. If any restriction is imposed then it is important that it satisfies the requirements of Article 14 and 19 of the Indian Constitution. It is also important that the law which imposes such a restriction must be fair, just and reasonable.
In the present case, the restrictions which are imposed by the Government through the Aadhaar Act do not fall under reasonable restrictions and are arbitrary and unreasonable. There isn’t any reasonable classification as there is no nexus between the classification of society made by the Act and the objective which the Act strives to achieve. The information which was sought from the citizens violated the integrity of the citizens. The object of the Act was not in nexus with the information which was sought to be collected by the citizens. The Act also made a classification of citizens based on religion. Classification based on religion did not only discriminate citizens but also forced them to reveal their religion which is violative ofArticle 25of the Indian Constitution. Further, the Act also made Aadhaar Cards compulsory for availing certain benefits that were offered by the Government to the citizens under the Act. The compulsion of Aadhaar Cards will also enable the Government to put the citizens under its surveillance and this would amount to a violation of the Right to privacy under Article 21 of the Constitution. Violation of the Right to privacy is a very serious violation of the Right to life as it encroaches upon the life and dignity of the citizens which is the basic right guaranteed under the Constitution.
Most of the counsel who appeared for different petitioners agreed that as far as allotment of Aadhaar number for unique identification of the residents is considered there was no question of dispute.
The arguments which were made by some famous lawyers against the Aadhaar Act were as follows:
Shyam Divan
Shyam Divan was the first counsel who started with the petitioner’s arguments. He challenged the Aadhaar Act, 2016. He contended that as per the Indian Constitution the State is bound to provide benefits to its citizens by way of subsidies and services. The Aadhaar Act makes these benefits conditional for the citizens which the State is bound to provide to its citizens. To avail such benefits the Aadhaar Act needs the citizens to give their biometric and demographic information. Section 7 of the Act was challenged on this ground by Shyam Divan.
The Aadhaar Act enabled the Government to track the citizens which violated their right to privacy and hence was unconstitutional. The UIDAI gives the power to the State to cancel the number of the citizens which is provided in their Aadhaar and such an act of the State would not have any redressal mechanism.
Kapil Sibal
The main contention of Kapil Sibal was that when Right to Privacy was made a Fundamental Right under Article 21 of the Constitution then the personal information of the citizens which the Act seeks to receive should not be allowed. The Act takes away the right to make a choice from the citizens as according to the Act it is mandatory for the citizens to reveal the information to the State which the Act needs them to in order to avail the benefits and subsidies provided by the Government as without Aadhaar authentication the citizens will be denied of those Government beneficiaries. The Aadhaar Act takes away the informational privacy from the citizens which have been recognized as the Right to Privacy.
It was contended by him that the collection of information from the citizens violates Article 21 of the Constitution.
Arvind Datar
It was contended by Arvind Datar that the Aadhaar Act is unconstitutional as it can’t be treated as a money bill. Linking of the bank accounts with Aadhaar violates the rights of the citizens as they are not left with a choice to operate their bank accounts without linking it with the unique ID and hence, it is violative of Article 14 and 21 of the Constitution. Further, the State did even give an explanation to the citizens for linking their bank accounts with Aadhaar. A reason to do so was needed to be given by the State in order to explain the object which the State intends to achieve by doing so. The right to make a choice is a right that has been recognized as a Fundamental Right under the Right to privacy. The Aadhaar Act takes away the right to make a choice by the citizens and thus, violates the Fundamental Right of the citizens under Article 21 of the Constitution.
The Act also violates the principle of proportionality under Article 14 of the Constitution as having an Aadhaar will give a valid identity to a person and whosoever fails to do so will not be considered to have a valid identity.
He argued that Section 139AA of Income Tax Act which makes it compulsory for citizens to link their Aadhaar with their bank accounts is violative of the Right to Privacy under Article 21 of the Constitution and is needed to be reconsidered.
P Chidambaram
It was contended by P Chidambaram that the Aadhaar Act was in no way a money bill and so it should not be treated as one. He stated that a bill to qualify to be a money bill needs to go through strict criteria that have been set and if the bill passes such criteria only then it can be treated as a money bill. He also stated that all the money bills need to go through the Rajya Sabha and then it is passed to the President for his assent. The President has the power to send back the money bill for reconsideration which has been passed by the Rajya Sabha if he feels that some corrections are needed to be made in it.
Hence, the provisions of the Aadhaar Act which fails to fulfill the criteria of a money bill cannot be considered to be passed and so the entire law is void and needs to be struck down.
Respondents
It was stated by the respondents in the affidavit that their intention behind introducing the Act was to ensure that all the citizens who are eligible for the benefits and subsidies by the Government receive such benefits and subsidies and aren’t deprived of it.
It was also rebutted by the respondents that the Aadhaar Act does not ask for any information which can violate a person’s Right to Privacy. It was submitted by the respondents that the Act barely asks for any personal information from the citizens which can enable State surveillance on them. The respondents further stated that the demographic information which the Act seeks to ask from the citizens include name, date of birth, gender, address, mobile number and email address of the citizens. Providing mobile number and email address to the State was left on the option of the citizens and these two are required only for transmitting relevant information to the AMH and for providing One Time Password (OTP) for their authentication. The information which the Act seeks to receive from the citizens is in the public domain. It was also stated by the respondents that the Act under Section 2(k) specifically provides that the regulations cannot ask for the information like race, religion, caste, tribe, ethnicity, language, income, records of entitlement or medical history from the citizens and hence, any sensitive information can’t be asked from the citizens through this Act. In light of the Section stated above the scope of obtaining any additional demographic information is very limited and even the biometric information which the Act seeks to obtain from the citizens is limited to their fingerprints and an iris scan.
This specific exclusion, in the context, ensures that the scope of including additional demographic information is very narrow and limited. Such biometric information is very commonly obtained all over the world in order to identify a person. The argument of the respondent was, thus, that the information which Aadhaar Act seeks to obtain is non-invasive and non-intrusive identity information.
The comprehensive reports on data protection and informational privacy were prepared by the Planning Commission of India under the Chairmanship of Retd. Justice A.P. Shah. the report included five salient features that aimed to protect the privacy of citizens.
The framework suggested by the Planning Commission was based on the following five salient features:
technological neutrality and interoperability with international standards;
multi-dimensional privacy;
horizontal applicability to state and non-state entities;
conformity with privacy principles; and
a co-regulatory enforcement regime.
On 31st July 2017, the Central Government constituted a committee to review data protection norms in the country and make recommendations which was chaired by Retd. Justice B N Srikrishna, former Judge of the Supreme Court of India. The Committee had recently released its report and the first draft of the Personal Data Protection Bill, 2018. It comprehensively addresses the process of personal data. It includes information like where such data has been collected, disclosed, shared or otherwise processed within the territory of India. The provisions and principles of Europe’s General Data Protection Regulation (EUGDPR) and EU data protection jurisprudence were used for the purpose of framing the bill.
The traditional concepts of the data controller in which the entity processes the data and the person whose data is being collected known as data subject was replaced by the Draft Bill. The new concept introduced by the Draft Bill was ‘data fiduciary and dad principal’. The new concept aimed to establish a trust-based relationship between the entity and the person whose data is being collected.
The Draft bill and the report includes the rights and obligations of the data fiduciary and data controller respectively. These rights include the right to access and correction, the right to data portability and the right to be forgotten – a right to prevent or restrict disclosure of personal data by a fiduciary. The consent plays a crucial role as it has been given an important status in the draft data protection law. Thus, for the purpose of the process of processing the personal details of the citizens, it plays a significant role.
It was stated by the respondents that Aadhaar works as an identity card which is used by around 92 crore people for accessing various social schemes or availing benefits which are provided by the Government to its citizens. It is a document which widely is being used by the citizens and restricting it would create a problem for the citizens. Aadhaar is a document that can help the Government in detecting and eliminating the duplication and impersonation in muster rolls and beneficiary lists. It also helps the workers underMGNREGAand pensioners to withdraw their wages and pensions every month.
The respondents also rebutted the privacy contention stating that the data which is obtained by the Act is secure as it is encrypted at its source and all the biometrics of the citizens are stored by the Government in the Government of India’s servers. The Government of India’s servers has a security standard which is one of the best in the world. The duplication of cards or fake cards for availing the benefits which are provided by the Government can be avoided with the help of Aadhaar number which asked from the citizens. Aadhaar will also be able to help in reducing the involvement of middlemen who try to drain off a part of the Government’s subsidy which is made available for a particular section of the society. Government subsidies are mainly concerned with goods and services like food grains, fertilizers, water, electricity, education, healthcare. The Government usually provides these goods and services at a lower price than the market price. To make this initiative work efficiently Aadhaar can be used. Aadhaar can be used to ensure timely and direct payment to the sections of society for which subsidies are made available by the Government and prevent leakage of money. This step can save thousands of crores of rupees which are lost in leakage. The Government have identified crores of duplicate ration cards, Aadhaar can ensure that the benefits and subsidies which are mean for certain sections of society actually reaches them.
The objective behind the provision which is included by the Government for the citizens to quote their Aadhaar number while applying for PAN card and for filing Income Tax returns is to identify the tax evaders by linking their PAN card with Aadhaar. Mandatory linking of PAN card with Aadhaar can curb tax evaders and also ensure that one person owns only one PAN card. Making Aadhaar mandatory can identify the fraudulent practices which are going on in the country and curb it to a large extent. Unique Identification Authority of India can even permanently or temporarily deactivate an individual’s number which has been provided in the Aadhaar.
Observations of the Court
The right to privacy is a basic fundamental right
The standards for and collection of demographic biometric data by the government were questioned on the grounds that they violated the right to privacy, the Supreme Court’s three-judge panel noted in its order dated 11-8-2015 while considering the constitutional challenge to the Union Government’s Aadhaar card programme. The Attorney General for India argued that two decisions—the first, M.P. Sharma (1954), delivered by an eight-judge bench, and the second, Kharak Singh (1963), delivered by a six-judge bench, cast doubt on the existence of a fundamental right to privacy. Each of these rulings noted that the right to privacy is not expressly protected by the Indian Constitution, according to the Attorney General’s statement. However, the petitioners argued that the rulings in the M.P. Sharma and Kharak Singh cases were based on the same principles as those outlined in the A.K. Gopalan case (1950), which interpreted each provision in the Chapter on fundamental rights as embodying a different form of protection and was later declared to be unsound by an eleven-judge bench in the R.C. Cooper case (1970). The petitioners claimed that the two preceding rulings’ foundations were invalid as a result. Additionally, it was argued that the minority judgement of Subba Rao, J. in the Kharak Singh case was particularly accepted in the seven-judge bench ruling in the Maneka Gandhi case (1978) and that the majority’s decision was overruled.
The Supreme Court’s three-judge panel took note of recent Supreme Court rulings in which the right to privacy was declared to be a fundamental freedom that was guaranteed by the Constitution as it addressed these challenges. These rulings include PUCL (1997), R. Rajagopal (1994), and Gobind (1975). In light of this situation, the significant and far-reaching constitutional interpretation issues involved, it was decided that institutional integrity and judicial discipline would need a referral to a bigger bench. On July 18, 2017, a Constitution Bench led by the Chief Justice said it would be appropriate for a bench of nine judges to decide the matter. “It seems that it has become imperative for us to assess whether there is any basic right to privacy under the Indian Constitution,” the Constitution Bench’s order stated. The answer to this question would essentially involve determining whether the Supreme Court’s rulings that there isn’t a fundamental right of this kind, made by an eight-judge Constitution Bench in the M.P. Sharma case and the six-judge Constitution Bench in the Kharak Singh case, are the correct expressions of the constitutional position.
As a result, the following two types of questions were raised for the prevailing bench to consider:
Whether the Constitution recognises a basic right to privacy, and if so, where is it located and what are its boundaries?
What is the ratio decidendi in the cases of M.P. Sharma and Kharak Singh, and was the decision made correctly in those situations?
The Supreme Court’s nine-judge bench held, in response to the reference, that according to Article 21 of the Constitution and as one of the freedoms guaranteed by Part III of the Constitution, the right to privacy is safeguarded as an integral component of the right to life and to personal liberty. The M.P. Sharma judgement, which stated that the right to privacy is not guaranteed by the Constitution, has been overruled. The Kharak Singh case ruling is overruled insofar as it maintains that the Constitution does not guarantee the right to privacy.
Nature and characteristics of the right to privacy
The right to privacy is a natural, primordial, basic, inherent, and inalienable right. It pervades the preambular philosophy at the core of ‘liberty’ and ‘dignity,’ as well as the human conceptions of ‘life’ and ‘personal liberty’ entrenched in Article 21 and the broad freedoms protected under Part III, which are seen to be necessary for a meaningful human existence. The Protection of Human Rights Act of 1993 and other international accords also recognise it. The right to privacy is present throughout Part III, even when it is not expressly listed. It is an intrinsic part of the jurisprudential framework of natural rights and natural law.
Its three meanings, i.e., spatial control, autonomy in judgement, and informational control, are important. It has both normative and descriptive elements, as well as both negative and positive content. It encompasses both physical and mental aspects and has intrinsic as well as practical significance. It cannot be deemed vague or rejected as a fundamental right because a detailed definition cannot be provided for it.
Other than Article 21, numerous articles in Part III include the right to privacy, and the various rights contained under privacy are examined and listed.
The importance of the individual and their autonomy over all other considerations is the right to privacy. The idea of guaranteeing a dignified existence for the individual is at the heart of constitutional focus, with the ideas of justice, liberty, equality, and fraternity animating the vision. Part III’s goal is to put citizens front and centre and hold the State responsible for them.
The fundamental, unavoidable requirement for the enjoyment of one’s own liberties and the freedoms granted by the Constitution is privacy. It is the vague major premise of the Constitution’s Part III. The rationale for judicial enumeration is particularly compelling when it comes to privacy.
It is not necessary to address every definitional issue at the time of recognition of a fundamental right. Definitional ambiguity is not a justification for failing to acknowledge the right to privacy. The idea that the right to privacy consists of three aspects, i.e., repose, sanctuary, and intimate decision, is sufficient for the purposes of this case.
Right to privacy is not an elitist construct. It is available to each and every individual in the nation.
The right to privacy has the nature of being both a common law right and a fundamental right. Only the incidence of the responsibility to respect the right and the forum in which a failure to do so can be rectified constitutes substantive differences between the two types of rights, whose nature and content may be identical.
Privacy protects heterogeneity along with recognising the plurality as well as the diversity of our culture.
According to Article 29, a group with a distinctive language, script, or culture must have the right to preserve the same, the right to privacy is also vital to cultural and educational rights.
In public spaces, one’s right to privacy remains attached to them.
The equality guarantee under Article 14 protects citizens from arbitrary State action. It stops the State from treating people differently. The protection against arbitrary State action is violated when the State violates a sacred personal space, whether it is in the body or the mind.
The right to privacy has always been viewed as a crucial component of the right to own property (Article 300 A), and it has received the same treatment in both civil and criminal law, as evidenced by all of the legal trespassing offences and torts.
Right to privacy includes informational and technological privacy.
In particular, the right to identification, the right to control the broadcast of personal information, the right to be forgotten, and the privacy of children are all included in the right to privacy.
Right to privacy doesn’t protect the information already in the public domain when it is voluntarily parted with. This information has three facets, it is non-rivalrous, invisible and recombinant.
Limitations that could be imposed on the right to privacy
Is privacy an absolute right
The standard of scrutiny would be as expressly stipulated under Article 19 if a privacy claim specifically comes only from one of the expressly listed provisions under that Article. Legislation that specifies a fair, just, and reasonable method must be valid with regard to the infringement on life and personal liberty under Article 21 in order for an invasion of privacy to be justified under that provision of the Constitution.
In order to violate someone’s privacy, there are three conditions that must be met. These are also the requirements to check whether there is a substantive challenge to the law on grounds of the “procedure established by law”. The following test must be passed for the same:
Legality, which assumes that there are laws;
A need that is specified in terms of an authorised State goal; and
Proportionality, which guarantees a sensible connection between the goals and strategies used to achieve them.
Once it is shown that each constitutional freedom benefits from privacy and that privacy may be found in each one, it follows that any state interference with privacy must be judged in light of whatever Part III guarantees are being restricted. As a result, in addition to the test required by Article 21, invasions of privacy must typically pass additional standards.
Thus, whether privacy is an absolute right, it is subject to limitations and restrictions put in place by the State to safeguard legitimate State interests or the public good.
What is ‘state interest’
According to the Court, in the case of privacy, legitimate state interests would permit abridgement of the right to privacy by the enactment of a law in an instantiated (non-exhaustively) manner to ensure good governance in a social welfare State. These include the following:
National security, including terrorist and cyber attacks.
Data mining to ensure that public resources are not syphoned off by the undeserving in social welfare programmes and schemes.
Prevention of crime.
Protecting interests of the revenue, public health.
Digital platforms.
Characteristics of dignity
Since fundamental rights work to ensure that each person has the dignity of existence, dignity serves as the glue that holds the fundamental rights together. Individual dignity is guaranteed by privacy and its associated ideals, and liberty can only truly exist when people can live their lives with dignity. The preservation of privacy allows the fulfilment of dignity and is a fundamental goal of the protection of life and liberty. The fundamental element of human dignity is privacy.
Without privacy, dignity is impossible. Both fall under the unalienable rights to life, liberty, and the pursuit of happiness guaranteed by the Constitution.
One can also find the reflection of dignity in Article 14 of the Constitution as a guarantee against arbitrariness.
The reflection of dignity can also be traced to Article 19’s lamps of freedom.
Right to life and liberty : its nature
With respect to the right to life and personal liberty, the Supreme Court held that it is inherent or natural to human beings. These rights are not bestowed or conferred for the first time by the Constitution. The Court went on to rule that the majority view in ADM Jabalpur, (1976) stands overruled, while the dissenting view of Khanna, J., in the ADM Jabalpur case, is the correct position of law. The Constitution does not create the right to life and personal liberty but recognises them as inherent in each person as a fundamental and integral part of the human element that resides inside.
Constitutional interpretations
The Court also talked about the power of interpretation under the Constitution, which is primarily covered by Articles 145 and 14. It was noted that our Constitution does not leave it up to the three branches of government to interpret it. According to Article 145(3), the Supreme Court alone must decide what the Constitution’s meaning should be when a significant question arises. The Constitution assigns this responsibility to a minimum of five court judges for this purpose.
The Court noted that the process of interpretation is dynamic and ever-evolving. It is important for constitutional concepts to develop and broaden as society does. The current socioeconomic and political environment should be used as the framework for interpretation rather than the ‘originalist’ period during which the Constitution was drafted and established. The Constitution is considered to be organic in nature according to the original purpose hypothesis. In doing so, the Court should give room for future generations to tackle new problems. The ‘great brooding spirit’ of law is the result of the “constant growth of rights in the shape of its branches and leaves through an interpretative process” while the roots of the constitutional tree of justice stay firm.
The “black matter” of the Constitution, according to the Court, is just as significant as its explicit provisions. Even in the lack of explicit language, implications can be drawn. The Supreme Court should look into non-expressive aspects while keeping in mind Indian citizens’ desire for freedom. It continued by pointing out that the Constitution’s language is not the sole relevant constitutional law because the Court must determine the Constitution’s structure, intent, and boundaries.
Further, the Court pointed out the importance of external aid, such as Foreign Constitutions/law/views/English decisions. The Court ruled that although the Constitution of India should be construed in light of the socio-economic and political circumstances of our nation, these external aids do deserve to be taken into account. It also ruled that the Constituent Assembly Debates can be considered by courts but cannot form a conclusive basis for the interpretation of a constitutional provision.
Miscellaneous
Types of privacy
Per Chandrachud, J. (for Khehar, C.J., Agrawal, J., himself and Nazcer, J.) recognised the following major types of privacy:
Bodily privacy, which corresponds to physical body privacy. The inability to stop others from harming one’s body or from restricting the freedom of bodily mobility is implicit in this, and it is a form of negative freedom.
Spatial privacy, intimate relationships and family life are good examples of this, which is mirrored in the privacy of a private space through which access by others can be controlled to the space.
Communicational privacy, which is demonstrated by the ability to limit access to communications or regulate how information is shared with third parties.
Proprietary privacy, which is represented by a person’s interest in using the property as a way of keeping certain items, facts, or information private from others.
Intellectual privacy, which is characterised by a person’s desire for their own peace of mind and the freedom to form their own thoughts and beliefs.
Decisional privacy, indicated by the capacity to make intimate choices, which are largely sexual or reproductive choices or those involving intimate relationships.
Associational privacy, which is characterised by the ability of the individual to choose who she wishes to interact with
Behavioural privacy, which acknowledges a person’s privacy interests even when they engage in activities that are visible to the public. According to the theory of behavioural privacy, even when access is provided to others, the person has the right to control the scope of access and maintain some degree of privacy from unauthorised intrusion.
Informational privacy, which demonstrates a desire to limit who has access to information and restrict the spread of information about oneself.
Judgment
The Aadhaar Act was held to be valid by the Supreme Court. The Hon’ble Court stated that sufficient security measures have been taken by the Government in order to keep the data safe which the citizens have been asked to reveal for Aadhaar. A five-judge bench led by CJI Dipak Misra decided the case. The Bench asked the Government to take measures to provide more security in order to protect the data obtained by the people. It was also stated by the Court that the information which has been obtained by Aadhaar should not be released to the commercial banks, payment banks, and e-wallet companies. E-wallet companies like Paytm asked their customers to get their KYC done by using their Aadhaar cards. It was held by the Court that such information of Aadhaar should not be released to them. It was also stated by Bench that telecom companies cannot seek details of Aadhaar from their customers when they buy a new sim card and even schools shall not ask students to provide their Aadhaar number for appearing in board exams or for admissions.
The Supreme Court upheld the validity of Aadhaar and made it mandatory for availing the benefits and subsidies of the Government. The Act ensures that the benefits and subsidies of the Government are received by the people for whom it is meant. The Court held Section 57 of the Act to be unconstitutional and was, therefore, struck down.
The court held that Aadhaar card shall be made mandatory for availing the welfare schemes, benefits, and subsidies that are provided by the Government as it empowers the poor and ensures that the benefits and subsidies are received by the sections of society for which it was meant. Section 57 of the Aadhaar Act was held to be unconstitutional and was struck down. The Supreme Court held that children would not be denied the benefits of any Government scheme if they do not have an Aadhaar card. The Bench of the Supreme Court also struck down the national security exception under the Aadhaar Act.
The Court also explained the difference between an identity card and Aadhaar. Aadhaar has a unique identification and hence can’t be duplicated like other identity cards. Further, the Court also stated that the objective of Aadhaar is to give identity and empower the poor of the society by making sure that they are able to avail the benefits and subsidies which are provided by the Government for them. Therefore, the Aadhaar has been made compulsory for availing the Government welfare schemes.
The conclusion of the judgement is as follows:
The right to privacy is a fundamental right. It is an intrinsic part of the right to life and personal liberty in Article 21 of the Constitution of India.
Family, marriage, procreation, and sexual orientation are all intrinsic aspects of dignity. They all together form the privacy of a home.
The decisions of M.P. Sharma, Kharak Singh and ADM Jabalpur stand overruled.
All the decisions subsequent to the judgement of Kharak Singh that have enunciated the position laid down in the first point are the correct positions of law.
Conclusion
The Court held that Right to privacy is a fundamental right under article 21 of the Indian Constitution. The judgment delivered in the cases of M.P. Sharma and Kharak Singh was overruled in this case. Aadhar card cannot be made compulsory for linking with bank accounts, etc. but made linking of Aadhar and pan card mandatory and for filing income tax returns filing. The concerns raised under the petition were addressed and the frivolous laws have been quashed and others have been considered rationally by the Hon’ble Court.
The Aadhaar Act was launched with the purpose to give identity and empowerment to the marginalized section of the society. It provides a unique identification number to the citizens of India. The Aadhaar number is unique and therefore, it can’t be duplicated. The unique identification ensures that the benefits and subsidies of the Government are availed by the section of society for which it is meant. Aadhaar can prevent unfair practices and leakage of thousands of crores of money. Many privacy rights questions were also raised in the case. The question of dignity of citizens, informational self-determination and consent formed the basis for the privacy rights claims.
The right to Privacy formed an important part of the case. A five-judge bench of the Hon’ble Supreme Court on 26th September 2018, delivered a judgment in favor of respondents. The validity of Aadhaar was upheld by the Court after striking down various clauses and Sections of the Act which were contrary to the Constitution and violated the rights of the citizens. Justice A K Sikri who wrote the majority of the judges declared the Aadhaar Act to be valid after striking down Section 33(2) and Section 57 of the Act. Various questions were raised by the petitioners on issues like the Right to Privacy of the citizens and the possibility of state surveillance as well as the possibility of breach of information which was collected by the Government for Aadhaar cards of the citizens. The questions of the petitioners have mitigated the claim of UIDAI that their system is one of the best in the world and secured enough to keep the information of the citizens safe. The Court held the Aadhaar Act to be Constitutionally valid as the Act was under reasonable restrictions of the Constitution.
The majority of the honorable Bench also stated that the right of choice of the citizens to avail the Aadhaar card will not be protected by upholding the Aadhaar Act. The citizens will not be left with a choice as Aadhaar will be mandatory for availing the subsidies and benefits of the Government and if a citizen is excluded from availing the subsidies and benefits of the Government due to lack of Aadhaar or authentication problem it can result in the violation of the dignity of the citizen. The Bench also said that linking of Aadhaar to PAN card is not important as there isn’t any constitutional rationale behind it. Upholding of Aadhaar can possibly result in the violation of the Right to Privacy even after striking down Section 33(2) and Section 57 of the Act. In order to protect the Right to Privacy of the citizens the Court clearly ruled out the possibility for private entities to use the authentication mechanism or for asking Aadhaar details by the citizens. The step taken by the Court was to protect the Right to Privacy of the citizens and it clearly showed that the Right to Privacy is indeed a Fundamental Right.
Frequently Asked Questions (FAQs)
What was held to be unconstitutional in the K.S. Puttaswamy judgement?
In the K.S. Puttaswamy case, the constitutionality of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 was challenged. However, the Court upheld the validity of the Act, stating it to be constitutionally valid.
Does Article 21 include the right to privacy?
Yes, the Supreme Court, through the judgement of Justice K.S. Puttaswamy (Retd.) and Anr. vs. Union of India (2017), held that the right to privacy is a fundamental right. It is an intrinsic part of the right to life and personal liberty in Article 21 of the Constitution of India.
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This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of women’s right to vote thereby highlighting the scenarios both in India and in the international domain.
A political right, exercising which is a necessity for every citizen of a nation, is known as the right to vote. The right to vote relates to the right of making a choice. Empowerment is all about the choices one makes, but to exercise those choices, one needs to know their rights. Knowing rights comes from being educated, and therefore, the foremost ground that upholds the right to vote is education, which empowers an individual to recognise their political right to vote. It is concerningly obvious that as we are talking about women’s right to vote, there has been disparity with this gender and discrimination has been the only matter that they have been subjected to over the ages. This article, therefore, aims to discuss the subject matter of women’s right to vote and brings along stories in simple language that contributed to the development of the subject of voting, specifically for females around the world.
Why is voting necessary
Voting is necessary because an effective democracy depends on citizens using their right to vote. Our ability to elect leaders who uphold our beliefs and who can actually come up with the solutions we require to live well in our nation, thereby allowing us to move closer to the ambitions and aspirations we have for our family, is a necessity. Voting is both a right and a duty in many ways, because there is no other option to exercise political rights in a democratic setup.
Suffrage, or the right to vote, denotes a crucial human right, particularly in the modern democratic world. A democracy’s fundamental political right is the right to vote. People, especially women, have had to endure enormous hardship in several societies to achieve and exercise this political right. Women gained this political right far later than men in practically every country, and only after a protracted struggle. When it comes to India, after India gained independence from British colonialism, the new Constitution gave women the same voting rights as men.
Suffrage, in its simplest form, indicates the civil right to enfranchisement or the ability to vote. The phrase refers to a person’s freedoms and democratic rights, including their constitutional right to vote in their country of residence. Suffrage, in a larger sense, also refers to the right to vote. Although having a legal claim to vote does not automatically give a person the opportunity to vote, having a legal claim to vote also does not imply that everyone has the practical right to vote (in relation to the application of the right).
Speaking out strongly against any candidate or elected leader of any legislative assembly or parliament has long been a tradition. The focus of the blame then turns to the system and how democracy isn’t working properly. The question of “what the people can do” to strengthen democratic foundations and effect systemic change, however, has gotten very little attention. The elected official has a duty to carry out the preferences of the electorate, just as the Indian populace has a duty to participate in choosing the most qualified representative.
Election is the process through which the citizens of a nation elect the government that will be responsible for governing the nation. Therefore, the election process is important in a democracy. The fact that it is a government of, by, and for the nation’s citizens is one of the main arguments. All citizens of India who are 18 years of age and above are able to cast ballots in elections to choose their leaders. The nation may revert to a monarchy, a dictatorship, or authoritative rule if elections are not held.
It will therefore be correct to note that the only place where a beggar is equal to a billionaire and individuals irrespective of their gender are considered to be equal is in the voting booth.
History of women’s right to vote / women’s suffrage
The expression ‘women suffrage’ refers to women’s ability to cast ballots under the same conditions and circumstances as males. The term ‘suffragettes’ or ‘suffragists’ refers to the women who battled for this cause (the right to vote). The concept of women’s suffrage and its significance have evolved with time and are still progressing alongside the voting rights of men. A layout of such evolution has been provided in pointers hereunder:
Ancient Greece, republican Rome, and the limited democracies that had developed in Europe by the end of the 18th century all forbade women from voting. Women remained to be denied all voting rights even when the voting age was increased, as it was in the United Kingdom in 1832.
In the nineteenth century, the topic of women’s voting rights finally arose, and the battle was particularly fierce in Great Britain and the United States. However, those nations were not the first to give women the right to vote, at least not on a national level.
Women had gained the right to vote in national elections by the early 20th century in New Zealand (1893), Australia (1902), Finland (1906), and Norway (1913). They were allowed to vote in several local elections in Sweden and the US. Women’s suffrage in Europe and other nations was accelerated by World War I and its aftermath.
Women gained the right to vote in national elections or equal voting rights with men in 28 additional countries between 1914 and 1939. Those countries included Soviet Russia (1917); Canada, Germany, Austria, and Poland (1918); Czechoslovakia (1919); the United States and Hungary (1920); Great Britain (1918 and 1928); Burma (present-day Myanmar) (1922); Ecuador (1929); South Africa (1930); Brazil, Uruguay, and Thailand (1932); Turkey and Cuba (1934); and the Philippines (1937).
Women were initially allowed the right to vote in municipal, other local, or possibly provincial elections in a number of those countries. The ability to vote in national elections was only granted later.
France, Italy, Romania, Yugoslavia, and China were subsequently included in the alliance following World War II. In India, the Constitution of 1949 granted women absolute suffrage, while, in Pakistan, the national elections of 1956 were responsible for providing women with absolute voting rights.
In another ten years, practically every nation that gained independence following World War II guaranteed equal voting rights for men and women in their constitutions, bringing the total number of nations that had granted women the right to vote to more than 100. In most cantonal and federal elections in Switzerland by 1971 and in Syria in 1973, women were given absolute voting rights. According to the United Nations Convention on the Political Rights of Women, which was approved in 1952, women “should be entitled to vote in all elections on equal terms with males, without any discrimination.”
Why women’s suffrage received importance in the 19th century
Suffrage has been a political sensation from its inception. It became entangled with the numerous types of viewpoints articulated by the various ideologies that had by then arisen and were gaining traction in feminist and women’s movements around the world, including radicals, liberals, Marxists, and socialists. How and why suffrage got to be such a contentious subject in the 19th century’s fight for women’s rights is a key concern. The reason for this may be found in the fact that women are treated inferiorly to men, particularly when it comes to legal issues and rights. Nothing about this was typical of a particular area or nation; it was a global occurrence.
Women had to deal with injustices everywhere. They were denied access to higher education, denied the right to vote, and given little to no power over the family’s financial resources. Men were fiercely opposed to the idea of women’s advancement because they thought the ‘new woman’ would demand equal opportunities in all spheres, including politics and education.
A petition for change with more than a quarter of a million signatures was compiled by British women’s organisations before the end of the 19th century and delivered to Parliament. The fight for women’s suffrage grew as new professions, just like teaching and working in department shops. The International Women’s Suffrage Alliance, which was founded in Berlin in 1904, established provisions governing women’s right to vote. The movement’s moderate wing was led by its President, Carrie Chapman Catt, and Vice-President, Millicent Fawcett.
Cooperation between American and British women increased as the women’s suffrage movement gained momentum. Elizabeth Stanton addressed the audience at a gathering honouring Susan Anthony and Susan B. Anthony in June 1883 at the Prince’s Hall in London. She discussed the social, educational, political, and religious status of women in America. The second generation of suffragists continued the fight for equal rights for women in the United States and Great Britain. Sylvia Pankhurst, daughter of Emmeline, and Harriot Stanton Blatch (1856–1940), daughter of Elizabeth Cady Stanton (their mothers having become close friends when Blatch stayed in England), worked closely together to support the cause of suffrage.
Voting rights of women across the world
The extensive list provided hereunder shows not only when women first received the right to vote, but also how they did it and how they are currently seen politically around the world. Let us have a look at when women around the world were granted the right to vote by looking at the timeline provided hereunder:
1893 (New Zealand): The late 1800s saw a push by New Zealand women for the right to vote, spearheaded by suffrage activist Kate Sheppard, who gathered numerous petitions. Although the ladies faced a lot of criticism since many cabinet members feared that women would vote in favour of the prohibition of alcohol, their lobbying efforts finally paid off and the bill was passed as a statutory law on September 19, 1893.
1902 (Australia): The women’s suffrage movement in Australia was first split between South Australia and Western Australia. The Adult Suffrage Act, 1894, which gave women the ability to vote as well as to run for office in Parliament, was approved by the South Australian Parliament in 1894 after decades of the fight for equal rights. Western Australia adopted a similar policy in 1899, and in 1902, the Australian Parliament approved the Commonwealth Franchise Act, 1902, guaranteeing all Australian women the right to vote. Unfortunately, indigenous Australian women were not included in that; they did not get the ability to vote until 1962.
1906 (Finland): Finland became the first nation in Europe to allow women the right to vote in 1906. Finland’s Parliament was to be founded on universal suffrage after political instability in 1905 caused a countrywide strike against the Czarist Government. Finland’s first parliamentary election in 1907 saw the election of 19 women, and women still hold significant political positions in the nation today.
1913 (Norway): Despite having a long history of setting the bar high for equality, Norwegian women had to fight for the right to vote for almost 30 years. The subject was first discussed in Norway’s Parliament in 1890, when it was argued that voting may cause women to lose their identities, would degrade them, and would upend their homes and families. However, in local elections by 1910, women had gained parity with men, and by 1913, the Norwegian Constitution had been changed to grant all citizens the right to vote.
1915 (Denmark): Only men above the age of 30, who were the heads of their homes and made up 15% of the population of Denmark, were permitted to participate in politics in the 1800s. In 1871, activist Matilde Bajer founded a group dedicated to securing women’s voting rights. She later rose to prominence as the head of the Women’s Progress Association’s political arm.
1917 (Canada): Women struggled for the right to vote for decades, and the battle for women’s suffrage in Canada cut across all of the provinces. With the exception of male and female indigenous Canadians, who did not obtain the right to vote until 1960, the majority of Canadian women were granted the right to vote in 1917.
1917 (Russia): Russia had granted the right to vote to females after 40,000 women marched through St. Petersburg. The Russian League for Women’s Equality, founded in 1907, organised the march, which happened after Prince Georgy Lvov assumed power in 1917. Women’s suffrage was not among the new government policies that Lviv had announced. Following the outcry, Lviv changed its laws to grant women the right to vote.
1918 (Poland): After being ruled by Russia, Germany, and Austria-Hungary for more than a century, Poland attained independence in 1918. With the achievement of that milestone came the independence of Polish women as well. Under the new administration, they were granted the right to vote and to run in the Sejm elections, which is the Polish Parliamentary election, thereby governing Poland’s Parliament as well. Later, women fought for and took their rights in areas including civil law, holding public office, and property ownership.
1918 (Germany): The drive for women’s suffrage in Germany started in the late 1800s, and women were granted the right to vote in 1918. One of the most well-known activists who worked to advance the women’s movement and plan the first international women’s congress was Clara Zetkin. The campaign gathered strength as Germany moved from imperial control to the Weimar Republic, and eventually, equality for all sexes was incorporated into the new Weimar Constitution.
1918 (Britain): Before women in Britain were granted the right to vote, suffragette organisations spent years lobbying, marching, rallying, and demonstrating. The Women’s Social and Political Union organised one of the biggest protests, which drew 250,000 people, in 1908. At the event, suffragettes broke windows and tied themselves to surrounding railings to express their anger at the system. The right to vote was extended to women over 30 in 1918, but it wasn’t until 1928 that everyone aged 21 and above was given the opportunity to cast a ballot.
1919 (Netherlands): The women’s suffrage movement in the Netherlands gained traction in the late 1800s when women there were motivated to join feminist groups happening in England and the United States. In 1917, women were given what is known as a passive right to vote, which allowed them to run for office and be elected in politics but prevented them from casting their own ballots. Women didn’t truly acquire the right to vote in elections until 1919.
1920 (United States): After decades of a women’s suffrage movement that started in the first half of the 19th century, women in the United States finally gained the right to vote in 1920. Women’s rights advocates like Susan B. Anthony had put in a lot of effort to persuade the government that women should be able to vote. Anthony, unfortunately, passed away before the vote for women became a legal right. President Donald Trump posthumously pardoned Susan B. Anthony on August 18, 2020. She was detained in 1872 for casting an illegitimate ballot.
1921 (Sweden): As of 1862, Swedish law allowed women to cast ballots in local elections, but even these rights were rare for women who also held property and paid taxes. Women were awarded universal suffrage in 1919, ending the concept of income-based voting, but they weren’t able to use this new freedom until the national elections in 1921.
1928 (Ireland): In Ireland in the late 1800s, women were denied the right to vote in local and parliamentary elections, were discouraged from pursuing higher education and employment, had any property they owned given to their husbands after marriage, and could only seek custody of their children up until the age of seven. When the Irish Women’s Franchise League was established in 1908, suffragists relentlessly and even brutally fought for the rights of women. In 1918, certain voting privileges for women over the age of 30 were granted, and in 1928, all women over the age of 21 received full voting rights.
1930 (South Africa): The Women’s Christian Temperance Union, the first organisation to advocate for women’s voting rights in South Africa, was established in 1899, marking the beginning of suffrage for women there. With the help of Prime Minister Hertzog, the group eventually took the name “Women’s Enfranchisement Association of the Union” and succeeded in obtaining equal voting rights in 1930. Up until limited suffrage was extended to other non-Black racial groups in the 1950s, voting was only available to white people. Black people wouldn’t enjoy complete voting rights until apartheid ended in the 1990s.
1931 (Spain): Clara Campoamor, an activist who worked with the Spanish Social Party to better the lives of women and advocate for their right to vote, led the fight for women’s suffrage in Spain. Women gained the right to vote after the 1931 uprising and the establishment of Spain’s Second Republic, but it wasn’t until the 1933 election that they could really use that privilege.
1932 (Brazil): Although Brazilian women had been calling for equal rights since the late 1800s, the movement didn’t take off until activist Bertha Lutz published an article in a Brazilian newspaper urging women to seek the right to vote. Lutz later founded the Brazilian Federation for the Advancement of Women, which ran a successful campaign that resulted in the passage of the Suffrage Act in 1932.
1934 (Turkey): Seven years after the Republic of Turkey’s founding, women were given the ability to vote in local elections. However, nationwide suffrage didn’t occur until 1934, when legislation allowing women full political rights was passed. Following this, women started to participate more in politics, and in 1971 and 1993, respectively, Turkey elected its first female government minister.
1944 (France): When the French Union for Women’s Suffrage was established in the early 1900s, women in France began to campaign for the right to vote. With the beginning of World War II and the German occupation, suffrage activities came to an end. However, after the liberation, women were given universal suffrage.
1945 (Japan): Women in Japan were not only prohibited from voting until 1922, but also from participating in political activities and expressing their thoughts. Women gained increasing control over their participation in politics over time, although they didn’t receive full suffrage until 1945. In the first general election following World War II, more than 13 million women cast ballots. Since then, women have taken a more important role in politics, albeit they still hold less than 25% of the seats in the legislature.
1947 (Argentina): In 1947, the Congress of Argentina gave women the right to vote. President Juan Domingo Peron, whose wife Eva Peron had played a significant role in the push for women’s suffrage, signed this right into law. After founding the Peronist Women’s Party, Eva served as its leader until her passing in 1952. Until 3.5 million women had cast ballots in the general election of 1951, women were unable to utilise their newly acquired rights.
1947 (Pakistan): In 1947, Pakistan granted women the right to vote, which was later upheld in 1956 with the addition of a clause establishing a certain number of reserved seats in the Parliament. The first Muslim woman to be elected Prime Minister was Benazir Bhutto in 1988, and more Pakistani women are now registered to vote than ever before.
1947 (India): The fight for women’s suffrage began when India was a British colony, and after reforms were enacted in the 1920s, some women were granted the right to vote. But when India attained independence in 1947 and the Constitution getting adopted in 1950, universal suffrage started to take hold. Presently, even after 75 years of independence, the majority of the parliamentary seats in India’s Parliament are held by men, despite the fact that women have continued to grow more politically active.
1952 (Greece): In the late 1800s, Greek women began to advocate for universal suffrage, although the country did not fully provide voting rights to females until 1952. During such time, educated females and those who were older than 30 could vote in local elections only and not in national elections. Greece elected Katerina Sakellaropoulou to be its President in 2020, giving her way to become the country’s first female President.
1953 (Mexico): In Mexico, women were first granted the right to vote in local elections in 1947, but it took another six years for them to be granted the same right to vote in national elections. Although a law granting women full political rights was passed in 1937, it was never formally implemented, and women didn’t acquire universal suffrage until President Adolfo Ruz Cortines was elected in 1952.
1956 (Egypt): Egypt gave its women the right to vote in 1956 after a long fight led by the Huda Sharawi-founded Egyptian Feminist Union. Sharawi is well known for taking off her veil in a Cairo train station as a form of protest, inspiring other Egyptian women to follow suit. Sharawi fought to improve women’s personal status, education, and voting rights.
1963 (Iran): In Iran, women gained the ability to vote, seek office in the Parliament, get a divorce, and retain custody of their children in 1963. The 1979 revolution put an end to the situation when 22 women held seats in the Parliament and more than 300 held municipal council positions. Women were barred from holding office positions, forced to adhere to the Islamic dress code, and limited to careers in more stereotypically feminine sectors. Despite the fact that they can now run for government, women are still sadly underrepresented.
1972 (Bangladesh): After women participated in the Liberation War alongside males, aiding in the country’s independence, Bangladesh granted women the right to vote in 1971. Women have played a larger role in Bangladeshi politics over time, with female prime ministers being elected on a regular basis since 1988. Sheikh Hasina Wazed has been Prime Minister since 2009.
2005 (Kuwait): In 1973, a measure was introduced to Parliament in Kuwait with the intention of granting women the ability to vote and run for office, but it was swiftly rejected. Women’s suffrage campaigns persisted, and in 1999, the Emir (sovereign) issued a proclamation that was later reversed. After numerous protests and public gatherings, the ability to vote was ultimately granted in 2005.
2011 (Saudi Arabia): In 2011, King Abdullah signed a decree allowing women to run for office and cast ballots in local elections, granting Saudi Arabian women the ability to vote. Their first chance didn’t present itself until December 2015, nearly a year after the King’s passing of the progressive decree. In Saudi Arabia, women hold 20% of the parliamentary seats as of 2021.
Women’s right to vote in the United States
Women have been nearly generally denied the right to vote since the United States’ founding. But it wasn’t until women started to object to this limitation that their exclusion became clear. During the uprising against slavery at the beginning of the 19th century, the campaign for women’s suffrage was born. Women like Lucretia Mott, for example, demonstrated a strong interest in the antislavery campaign and excelled as public speakers.
They called for a convention to discuss the issue of women’s rights in July 1848; this convention was convened in Stanton’s hometown of Seneca Falls, New York, on July 19–20 of that year, and produced a declaration that demanded women’s suffrage as well as the right to education and employment opportunities. It was followed in 1850 by the first national convention of the women’s movement, which was hosted by Lucy Stone and a number of important Eastern suffragists in Worcester, Massachusetts. Together, Stanton and the charismatic suffragist leader Susan B. Anthony led the American suffragist movement for the following 50 years. Their first collaboration took place at a conference in Syracuse, New York, in 1852.
The National Woman Suffrage Association was established in 1869 with the stated goal of winning the right to vote for women through a Constitutional amendment. This group, which conducted a convention each year for 50 years following its founding, was led by Anthony and Stanton. With the intention of attaining women’s suffrage by winning amendments to that effect in the constitutions of several states, Lucy Stone created another organisation, the American Woman Suffrage Association, in 1869. The two organisations collaborated for almost 30 years after joining forces in 1890 to become the National American Woman Suffrage Association.
In several states, efforts were also made to grant women the ability to vote in municipal and local elections as well as in presidential elections. Over the course of the following 25 years, a number of states gave in to the movement’s demands and granted women voting rights. As a result, the number of women elected to Congress grew in each of these states. Thus, these representatives were at least in part compelled by the makeup of their constituency to support a woman’s right to vote on an amendment to the US Constitution. By 1918, 15 states had granted women the same voting rights as men.
Women’s suffrage-related amendments to the federal Constitution were proposed in Congress in 1878 and 1914, but both were soundly defeated. The 1914 amendment just fell short of obtaining even a simple majority of votes in both the House of Representatives and the Senate (a two-thirds majority vote in Congress was needed for the amendment to be sent to the state legislatures for ratification). However, by 1918, all major political parties were dedicated to granting women the right to vote, and in January 1918 and June 1919, the House and Senate, respectively, passed the amendment with the required two-thirds majority.
The secretary of state officially recognised the Nineteenth Amendment as a part of the US Constitution on August 26, 1920, and women received formal voting rights on an equal footing with males. Although the United States was among the first nations to give women the right to vote, it was far from the first; nations like New Zealand and Australia were setting the bar for equal rights for women in terms of voting. Many nations during this time-lagged significantly behind many others in allowing women the right to vote, and many are still up against prejudice and gender bias against women.
Women’s right to vote in the United Kingdom
Woman suffrage in Great Britain was originally requested by the Chartist movement in the 1840s and was first supported by Mary Wollstonecraft in her book “A Vindication of the Rights of Woman (1792)”. From the 1850s onward, prominent liberal intellectuals in England, most notably John Stuart Mill and his wife, Harriet, began to take up the cause of women’s suffrage with great interest. The first woman suffrage committee was established in Manchester in 1865, and Mill brought this society’s petition to Parliament in 1867 with roughly 1,550 signatures calling for women to be given the right to vote.
Few women had been granted the right to vote in parliamentary elections by property ownership prior to the Great Reform Act of 1832, although this was uncommon. Under the Municipal Corporations Act of 1835, women were denied the ability to vote in local government elections. The Municipal Franchise Act of 1869 granted the right to vote to single female ratepayers. The Local Government Act of 1894 confirmed this power and expanded it to some married women. More than a million women in England had registered to vote in municipal elections by the year 1900. In the exceptional set of border elections conducted from 1915 to 1916 under the Welsh Church Act of 1914, women were also granted the right to vote on the same terms as men.
The idea that women were political beings with the right to an opinion, let alone the right to vote, was unheard of in early Victorian Britain, where a woman’s role had been primarily focused on raising children and taking care of the home. But the effects of the Industrial Revolution in Britain also gave rise to a new and rising role for women as they entered the world of public life, along with significant economic and technological advances in the workplace.
The type of job that women could find in the early 19th century was typically domestic service, such as working as a cook or a maid. However, increasingly other women were finding employment in industry, primarily working in factories, frequently in the textile industry. The Industrial Revolution gave rise to the renowned Cromford Mill in Derbyshire, and this sector of the economy was primarily dependent on women to survive.
At the beginning of World War I, the protesters’ momentum was subjected to changes in Britain. Due to the grim realities of war, suffrage convicts were freed and encouraged to help with the war effort. The National Union of Women’s Suffrage Societies (NUWSS), on the other hand, kept up its much less combative efforts to foster gender equality and advocate for women. Many women were compelled by the First World War to fill the voids created by the men who enlisted to fight in the conflict. Women found work not only in fields they had prior skill in, like textiles, but also in munitions factories (anything needed for the war meant that women were suddenly crucial to the nation’s everyday industries, transportation, and infrastructure).
Now that the men had returned from the war, many of the women who had done so admirably throughout the conflict were expected to quit their jobs and go back to their homes. Social norms were still changing. Further, it is necessary to note that post-1928, the voting age for women was reduced to twenty-one years of age in tandem with male enfranchisement.
Representation of the People Act, 1918
The Representation of the People Act, 1918, which was established in 1918, granted the right to vote to women over 30 who met certain property requirements. Even though approximately 8.5 million women fit this description, they made up just around 2/3 of all women in the UK. The same law also made almost all men above the age of 21 eligible to vote and repealed property and other restrictions on men. Men in the military were permitted to vote from the age of 19 as well. Even though the number of voters rose from 8 to 21 million, there was still a significant gender gap.
Equal Franchise Act, 1928
Women who were above 21 years old were not given the same voting privileges as men until the Equal Franchise Act of 1928. Due to this law, 15 million more women were then entitled to vote. Without any resistance from other parties, the Conservative Party was able to approve the legislation.
After being introduced in March, the bill was passed on July 2nd of that year. Millicent Fawcett, the founder of the National Union of Women’s Suffrage Societies, who had led the campaign for the vote, was present at the parliament session to see the vote. The same evening, she noted in her diary that “it is nearly exactly 61 years since I heard John Stuart Mill introduce his suffrage amendment to the Reform Bill on May 20, 1867. I have therefore been extraordinarily fortunate to have witnessed the conflict from its inception.” Millicent Fawcett received a letter from Stanley Baldwin, the Prime Minister, on August 5, 1928. He noted that despite challenges, he always had faith that the law would be approved in “the basic and full shape it ultimately assumed.” He ended his letter by expressing the hope that the United Kingdom would benefit from equal voting and that it would be for the greater good.
Women’s right to vote in India
In a sense, India’s entrance onto the global stage was announced by the first general elections held in 1951. It was the beginning of India’s journey toward becoming the true global and South Asian champion of democratic values. However, getting there wasn’t a simple procedure for India. In comparison to the country’s actual population, Indian natives’ total voting percentage was far lower before 1946.
The ability to vote was restricted to anyone who met certain requirements, including paying income taxes, owning property, including land, and owning property. This aided landowners and those with significant counterbalance in keeping power in check.
Under Article 326 of the Indian Constitution, universal suffrage has been in place since the country’s first general election, which took place in 1951–1952. The 61st Amendment, which went into force on March 28, 1989, lowered the voting age requirement to 18 years old from that of the previously introduced 21 years.
The British government granted limited suffrage to women who owned property in 1918, but despite petitions being filed around the globe, this law (Representation of People Act, 1918) did not apply to British citizens living in other countries. The joint committee of the House of Lords and Commons heard arguments in favour of granting women the right to vote in 1919. The Government of India Act of 1919 permitted the provincial council to decide whether women could vote if they met strict property, income, or educational requirements, despite the fact that they were not given the power to vote or to run in elections.
All of the British provinces and princely states gave women the ability to vote between 1919 and 1929, and some even permitted them to run for local office. The first triumph in this regard was in Madras, which was followed in 1920 by the states of Jhalawar and Travancore. Rajkot state received full suffrage in 1923, and two women were chosen to serve on the legislative council. Complete suffrage was granted in the Madras Presidency, the Bombay Presidency, and the Rajkot state in 1921.
Representation of the People Act, 1918 in the Indian context
Beyond the British Isles, the Representation of the People Act, of 1918, which granted voting rights to some British women over 30, had a significant impact. For instance, many British suffragettes and suffragists had made references to India during their campaigns, and after 1918, they focused more intently on India. Up to India’s separation from Britain in 1947, decisions on Indian women’s voting rights were made in the House of Commons. In 1919 and 1935, there were two key Acts of Parliament on this subject.
The Government of India Act of 1919 gave Indian men who held a specific amount of property the right to vote, as well as expanded and reformed the country’s legislatures. Indian women were expressly denied the new franchise despite campaigns spearheaded by both Indian and British women. Sarojini Naidu, Herabai, and Mithan Tata, three Indian suffragists, attempted to convince the British government to step in on this issue by setting up hearings in the House of Commons and meeting with British MPs in the autumn of 1919.
The government did permit a concession even though women were not given the right to vote. Indian provincial councils were allowed to decide whether to provide Indian women with the right to vote under the 1919 Act. All of British India’s provinces had granted women the right to vote by 1930, but only if they complied with the stringent property rights that equally applied to men. This meant that in most provinces, fewer than 1% of adult females had the right to vote, and India’s voter ratio was roughly 25:1.
The Government of India Act, of 1935 granted voting rights to the wives and widows of registered male voters and instituted a literacy requirement as a substitute for this requirement.
This first group of British female MPs was essential in expanding the voting rights for Indian women because they refused to be exclusive in their feminism or politics and actively worked with Indian activists in both Britain and India. Indian women had high expectations and were actively involved in initiatives for complete adult suffrage.
Struggle in Indian for women’s right to vote
Women began clamouring for Indian women’s political representation between 1917 and 1937. The 1919 and 1935 constitutional reforms served as the backdrop for the women’s suffrage movement. Additionally, throughout the second decade of the 20th century, this activity coincided with the growing national movement. The push for women’s suffrage ran concurrently with the fight for political rights, such as in the liberation struggle, due to the colonial environment and men’s severely limited suffrage.
The Viceroy, Lord Chelmsford, and Secretary of State for India, Edwin Montague, toured the nation in 1917 to implement political reforms known as the “Montague- Chelmsford Scheme of Reforms for India.” This was one of the planned reforms that called for a wider electorate and increased representation of Indians in the legislative councils.
However, there was no mention of women’s right to vote, and the issue of their rights seemed to be completely disregarded. As a result, a number of women and women’s organisations, including the Bharat Stri Mandal (normally Stree), the recently established Women’s India Association, Margaret Cousins, and Dorothy Jinarajadasa (the latter two having also worked for women’s suffrage in England), seized the chance to foster support for women’s suffrage. In December 1917, Sarojini Naidu was the leader of an all-Indian women’s delegation that informed the imperial representatives (Montague and Chelmsford) of the awakening of Indian women (something akin to the West) and registered the demand of women to have the status of “people,” including representation in legislative councils.
The delegation’s first request was that “when the terms of the Indian franchise were drawn up, the word ‘people’ should be understood as including women” and that “the entire document should be worded in such terms as will not disqualify our sex, but allow our women the same opportunities of representation as our men”, the fight to win political and civic rights for all women in India officially began. The Indian women’s suffrage movement encountered opposition from both nationalists and British officials from the outset, which made things difficult for them. While the latter did not agree with their criticism of patriarchy and accused them of being unfaithful to their culture, the former accused them of disregarding the poor masses of Indian women.
As support for women’s suffrage grew across the nation in 1918, the provincial conferences (legislatures) of former Bombay and Madras (now Mumbai and Chennai) voted resolutions to remove sex discrimination from the reform bill that was being considered at the time. They were swiftly followed by the Muslim League, the Bombay Special National Congress, the Indian Home Rule League, and the Andhra Provincial Conference.
In the same year, Sarojini Naidu attempted to persuade the 5,000-strong audience at the Bombay Special Session of the Congress of the merits of granting women the right to vote by highlighting its political and scientific soundness, compatibility with tradition, and adherence to human rights. Naidu emphasised that this would instead assist establish the foundation of national character in the hearts of youngsters and would implant in them values of national life, dispelling the anxieties of men that this may mean interference by women in their official, civic, and public obligations.
In 1918, at the 33rd session of the Indian National Congress, Sarladevi Chaudhurani introduced a resolution in favour of giving women the right to vote. Beyond Sarojini Naidu’s claims, she argued that the “sphere of women” encompassed cooperation with males in all areas of life, including politics. All of the resolutions were made with the intent that when the word “people” or “persons” is used, it should be understood to include both men and women as well as men.
Meetings and get-togethers commenced one after the other across India owing to the need to implement women’s right to vote in elections. Women’s groups were extremely significant in showing support for women’s franchises, and they received unwavering assistance from notable women from both Britain and India. British suffragists like Millicent Fawcett came out to support the Indian women in their cause, promoting petition politics as the best strategy.
The Indian suffrage movement experienced a lot of activity in 1918. Two committees were established by the government to look into the ideas put forth by diverse groups of people in order to carry out the reform strategy. Out of these two, the Southborough Franchise Committee was tasked with gathering for the British Parliament all available criticism on the Franchise plans as well as learning Indian views on the subject of reforms. Taking advantage of the occasion, Indian women did everything in their power to present the Committee with any and all proof that the inclusion of women in the new electorate was necessary.
Women’s right to vote in the Madras legislature
Madras was the first legislature in British India to pass a resolution in favour of women’s suffrage with a sizable majority back in 1921. As a result, women received their first official state recognition as “people” and were granted the same conditions for voting as men. The women of Madras secured the attention of the globe as the news spread. Messages of congratulations came in from all across the world.
Lady Constance Lytton, a well-known British suffrage crusader, said in an article published in The Hindu on July 2, 1921, “please convey my sincere congratulations to the ladies of South India on obtaining the right to vote. The way the experience in our own Island (Britain) has produced fantastic results excites me and makes it seem like a dream.”
The series of events that contributed towards the Madras legislature being the first to pass a resolution supporting women’s right to vote has been laid down hereunder:
1917: In connection with the women’s suffrage movement, Annie Besant, Dorothy Jinrajadasa, and Margaret Cousins founded the Women’s Indian Association (WIA).
1918: The British government dispatched the Montagu-Chelmsford committee to India, where the WIA under Sarojini Naidu petitioned for women’s voting rights.
1918: In order to gather information, the Southborough Franchise Committee visited India. It determined that Indian women did not want the right to vote after only accepting women’s petitions from two provinces.
1918-1921: After persistent advocacy with the Joint Select Committee, the Parliament resolved to let elected legislatures determine the matter.
1921: Madras was among the first states to give women the right to vote.
In addition to extending their greetings, the Women’s Service Guild of Australia, Action Speciale de la Femme in France, and the British Dominion Women’s Citizen Union expressed their hopes that other provinces would soon do the same. Similar resolutions were soon adopted by the United Provinces and Bombay Presidency. Surprisingly, compared to other resolutions, the Madras Council’s resolution reflected the most firm mandate. Of the 90 or so members of the Council present, 40 voted in favour of the recommendation, 10 against it, and 40 abstained.
Development in women’s right to vote from 1927-1937
There were discussions over the conditions under which women’s franchises should be expanded in the years 1928–1937. The British government favoured creating distinct electorates, reserving seats for women, and relaxing the requirements for obtaining a franchise. However, the majority of women’s movement leaders advocated adult franchises and rejected separate electorates and the reservation of seats for women.
The Simon Commission’s appointment in 1927 as the first stage in the creation of a new Indian Act marked the beginning of the second phase of the fight for female suffrage, which began 10 years after the Montague Chelmsford Reforms. Numerous groups, including the WIA and the Indian National Congress, boycotted the Commission since there were no Indians in the team.
Some of the newly formed All India Women’s Conference (AIWC) members, led by the Rani of Mandi, met with the Commission and expressed their requests for giving votes to literate women and reserving seats for women. A Round Table Conference (RTC) to be held in London to explore the next step toward Dominion Status was announced by the Viceroy as yet another Statement of Purpose (SOP) in 1929. The INC and the WIA once more boycotted this. Begum Shahnawaz Khan and Mrs. Radhabai Subbarayan, however, attended the conference in their own capacities and did not represent any women’s organisations.
As a temporary solution, they suggested adult franchises as the best and most exclusive option for women. The Gandhi-Irwin Pact of 1931, by which Congress decided to attend the Second Round Table Conference, was another significant milestone. Under the leadership of Sarojini Naidu, the AIWC undertook the task of creating a memo that would be delivered to the Second RTC’s Franchise Committee. Eight women made up the drafting committee, namely, Rani Lakshmibai Rajwade, Hilla Fardoonji, Margaret Cousins, Taraben Premchand, Faiz Tyabji, and Hilla Fardoonji. The memorandum demanded equal adult voting rights, diverse general electorates, and no other option or nomination of women. The idea also received the approval of a number of women’s organisations. Rajkumari Amrit Kaur led a delegation of fifteen AIWC members to the Viceroy to request adequate women’s participation at the RTC.
Gender equality before the law and universal adult franchise were pledged by the Indian National Congress in its Karachi session in 1931 in response to the women’s movement’s demands for equal political suffrage rights and women’s active engagement in the freedom war. The free India’s Constitution upheld this vow.
A Franchise Committee was established with Lord Lothian serving as its chairman after the British Parliament approved the RTC’s suggestion for the enhanced franchise for women. A White Paper containing their suggestions was released in 1933. The Communal Award, which was also implemented that year, set aside seats for Muslims and Scheduled Castes. The AIWC opposed the idea of reserving seats for women because they believed that the Communal Award, which would separate women, would endanger the fraternity of womanhood in India. Once more taking up the cause, the women’s organisations reframed their demand for political rights.
The demand called for the enfranchisement of all men and women over 21 who lived in metropolitan areas. In order to represent the interests of women before the Committees, a delegation of women led by Rajkumari Amrit Kaur, Dr. Muthulakshmi Reddy, and Begum Hamid Ali were sent, and they renewed their demand for a universal adult franchise. They received the full backing of British women’s organisations that worked to influence public opinion in England in this endeavour.
The pace of the nationalist movement had sped up by the middle of the 1930s, and the AIWC in its 1933 annual session requested the right to vote and equal status for women in India’s future Constitution.
In a resolution from the 1934 session, Rajkumari Amrit Kaur acknowledged that the Joint Select Committee had given women more voting rights and a specific place in the new constitution, but she also expressed disappointment that it had disregarded many of their demands. When the Government of India Act of 1935 was made public and once more rejected the idea of a universal adult franchise, their displeasure increased. However, as only a few women had the right to vote until now, it did enhance the number of Indians who were granted voting rights and the proportional suffrage rights of women. Their numbers slightly grew as some of the prior qualifications were also relaxed and their qualifications, age, etc. were slightly dropped.
All women over 21 who met the requirements for property and education could now vote, however, the women’s organisations were upset with this and stated their dissatisfaction of the Act’s provisions. However, they soon realised that in order to give women the right to vote, they would need to be educated, as the majority of them could not even read. In addition to making quick attempts to address the schooling issue, women also enthusiastically supported the national campaign.
Women’s right to vote under the Indian Constitution
Hopes for the universal adult franchise were ultimately adopted by the new Constitution drafted in 1950, and Indian women received what they had been requesting since 1917. All Indian citizens are now eligible for equal political involvement under the country’s democratic Constitution, irrespective of their caste, class, colour, race, gender, or religious preferences. Following independence, the Gram Panchayat Act was passed, mandating the creation of gram panchayats at the local level.
The 73rd and 74th Amendments to the Indian Constitution, which designated panchayats and municipalities as “institutions of self-government,” were ratified by the Indian Parliament in April and June 1992 in an effort to significantly expand the political rights of women.
The Act’s requirement that at least one-third of all seats, both at the level of functionaries and members, be reserved for women is its most significant component. While male politicians agreed to grant women one-third of the reservation in panchayats, there is persistent resistance and opposition to granting them a similar reservation in state legislatures and the Parliament. As you can see, women continue to fight for equal rights.
Conclusion
As we come to the end of this article, it is necessary to state that women have been subject to oppression in relation to their voting rights since time immemorial. Not to deny, till today, in many places across the world, viewing women as inferior is continuing as they keep rising not only in terms of being eligible to cast a vote but also themselves stand as a representative in the elections. Progressively, many female politicians are coming up across the world to govern nations, thereby being on equal footing with their male colleagues.
Frequently Asked Questions (FAQs)
When did the revolution surrounding women’s right to vote began?
The right for women to vote in elections was started when some people started attempting to amend the voting laws to allow women to vote in the middle of the 19th century.
Why did the women’s rights movement start?
During the uprising against slavery at the beginning of the 19th century, the campaign for women’s suffrage was born. Women like Lucretia Mott, for example, demonstrated a strong interest in the antislavery campaign and excelled as public speakers.
Which was the first country to promote women’s right to vote?
Although a number of other territories granted women the right to vote before 1893, New Zealand can legitimately claim to be the first independent nation to do so.
Which country has not given voting rights to women?
All nations and territories on the globe now allow women to vote, with the exception of Vatican City, where the Pope is solely elected by Catholic Church cardinals, all of whom must be men.
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