According to Section 2(h) of the Indian Contract Act 1872, we know that an agreement enforceable by law is a contract. As used herein, “contract” means any agreement created by the voluntary agreement of parties competent to contract for a lawful consideration and with a lawful aim, which is not void. Parties enter into a contract to bind themselves to certain obligations in exchange for a certain consideration.
A contingent contract depends on the happening or non-happening of some uncertain future event and a Wagering agreement is an agreement to pay a sum of money based on an uncertain event. In this article, we will discuss the difference between a contingent contract and a wagering agreement. One is a contract and another is an agreement, so we can understand that some agreements form contracts and some are not. The agreements which do not form a contract are not enforceable.
Contingent contract
According to Section 31 of the Indian Contract Act 1872, a “contingent contract” is a contract to do or not to do something, if some event, collateral to such contract, does or does not happen. In simple words, contingent contracts are those where the performance of the contract depends on the happening or non-happening of some uncertain future event. Contracts of insurance, indemnity, and guarantee fall under the category of contingent contract.
Example: A contract between Rita and Gita stipulates that if Gita’s house is burned, Rita will pay 59,000 rupees. This is a contingent contract.
Essential elements of contingent contract
The performance of a contingent contract depends on the occurrence or non-occurrence of an event or condition.
This event is collateral to the contract. This event is not a part of the contract. A promise of performance or consideration for a promise should not be attached to the event.
The event must be uncertain. If the event is certain, then it is not a contingent contract.
The contingent should not be a mere will of the promisor.
Enforcement of contingent contract
Section 32-36 of the Indian Contract Act 1872 states some rules for the enforcement of contingent contracts. These are as follows:
Section 32
In Section 32, until and unless an uncertain future event occurs, contingent contracts may not be enforceable by law. If the event becomes impossible, the contract becomes void. For example, Ram contracts to pay Shyam a sum of money when Shyam marries Gita. Gita dies without being married to Shyam. The contract becomes void.
In this scenario, the uncertain future event (marriage) does not occur. Gita dies before marriage, and Shyam could not marry Gita. Therefore, it is no longer a valid agreement, and Ram is not bound to pay Shyam.
Section 33
In Section 33, the enforcement of contingent contracts for future events can be enforced only once the happening of those events becomes impossible, and not before. For example, Aryan agrees to pay Rahul a sum of money if a certain ship does not return. The ship is sunk. The contract can be enforced when the ship sinks.
Section 34
In Section 34, when the contract depends on the performance of a future act that will take place at some future point, that act becomes impossible when the performer does something that makes it impossible for him to perform the act within a set time period or under any other circumstance. For example, Ram agrees to pay Shyam Rs. 15,00,000 if Shyam marries Gita. Gita marries Rahul. The marriage of Shyam to Gita is now impossible, although it is possible that Rahul may die and that Gita may later marry Shyam.
Section 35
In Section 35, contingent contracts, either to do or not to do anything if an uncertain event does not occur within a fixed period of time, may be enforced by law when the specified period has expired and the uncertain event has not occurred or when it becomes certain that it will not occur before the time fixed has expired. For example, Kabir promises to pay Rahul a sum of money if a certain ship does not return within a year. The contract may be enforced if the ship does not return within the year, or is burnt within the year.
Section 36
In Section 36, if an impossible event occurs, contingent contracts to do or not to do anything are void, regardless of whether the parties knew about the impossibility at the time they signed the agreement. For example, Raju agrees to pay Tinku 1,000 rupees if Tinku will marry Raju’s daughter Sneha. Sneha was dead at the time of the agreement. The agreement is void.
Case law
In Nemi Chand And Ors. vs Harak Chand And Ors (1964) case, the judges considered that a claim that a contract is a contingent contract must be alleged, and supported by the party who sets it up. It is useless to argue that the trial court has a bounden duty to consider a case like this suo moto. Although Section 32 of the Contract Act indeed states that contingent contracts to do or not do something if an uncertain future event occurs, they cannot be enforced by law until and unless that event has occurred. It cannot be used to support the claim that the trial court must dismiss the lawsuit if it relates to a contingent contract, but the contingency is not pleaded.
Wagering agreements
Section 30 of the Indian Contract Act 1872 defines the Wagering Agreement. As per this Section, “Agreements by way of wager are void; and no suit shall be brought for recovering anything alleged to be won on any wager, or entrusted to any person to abide by the result of any game or other uncertain event on which any wager is made.”
Example: In an IPL match, if team A wins then Ram will give Rs. 50,000 to Rahul, and if team B wins the match then Rahul will give Rs. 50,000 to Ram. This is a wagering agreement because the agreement is to pay a sum of money based on an uncertain event
A wager is a chance in which each party stands to win or lose based on the outcome of an uncertain event in reference to which it is taken and in the occurrence of which neither party has a legitimate interest. Money is the only thing that matters to them. Since neither party can file a lawsuit in a wager, the agreement is void. The money is all that matters in this situation, not the event. The agreement does not mention a wagering agreement, but it seems to be a game of chance based on what we see, so we mark it as one.
Essential elements of a wagering agreement
There must be two parties.
A wagering agreement must include a commitment to pay an amount of money or an equivalent amount.
The event which is involved in the agreement must be uncertain.
It is essential to have a common intention.
The parties should not have any control over the occurrence of the event.
Parties should have no interest in the event except for stake.
There must be a chance for both parties to win or lose. When either party can win but not lose or can lose but not win, this type of agreement is not a wagering agreement.
Exceptions to the rule of a wagering agreement
Commercial transaction
Whenever there is a genuine intention to conduct legitimate business, such as to take delivery of goods or shares, the transaction cannot be considered a wager. The transaction would be considered a wagering agreement if there are no genuine intentions and parties are only interested in betting on the rise or fall of the market.
Price competition
There are certain competitions where skill is important in order to succeed. For example, crossword competitions, picture puzzles, athletic competitions, etc. Price competitions are games of skill and do not involve wagers because the price is awarded for the merits of the solution.
Contract of insurance
The contract of insurance is the agreement between the insured and the insurance company under which, in exchange for the premiums paid by the policyholders the insurance company undertakes to indemnify the insured against any loss arising from a contingency up to the agreed sum. The performance of an insurance policy, whether it’s for life, fire, or marine, is contingent upon an uncertain event.
Horse racing
A contribution or subscription or an agreement to contribute, for any plate, prize, or sum of money of 500 rupees or greater to the winner or winners of any horse race, is not void by virtue of Section.
The provisions in this section are not intended to legalize horse-racing transactions that fall under Section 294A of the Indian Penal Code (45 of 1860).
Case laws
In Babasaheb Rahimsaheb vs Rajaram Raghunath Alpe (1930) case, two wrestlers entered into an agreement that they will wrestle in Poona on a certain day. The party who fails to appear in the wrestling match will pay Rs. 500 to the other party and the winning wrestler would get Rs 1,125 from the gate money. One of them failed to appear in the wrestling match and the plaintiff sued him for Rs. 500. The defendant contended that the agreement is void because it was a wagering agreement. The court observed that it was not a wagering agreement as there was no mutual chance of gain or loss. In this scenario, both parties could win but neither could lose because the money had to be paid from gate fees given by the public and not from the pocket of either party.
In Gherulal Parakh vs Mahadeodas Maiya And Others (1959) case, The appellant, Gherulal Parakh, and the first respondent, Mahadeodas Maiya, managers of two joint families, entered into a partnership to carry on wagering contracts with two firms. The partners have agreed that the profits and losses from the transactions will be distributed equally. The net result of all these transactions was a loss. As the appellant denied his responsibility to bear his share of the loss, the first respondent filed a suit for the recovery of half of the loss incurred in the transactions.
The Subordinate Judge found that the parties intended to enter into wagering contracts based on the rise and fall of the market. As the object of the agreement was prohibited by law and opposed to public policy, it was void. In an appeal, the High Court ruled that the partners aimed to deal in differences and that the transactions, as wagers, were void under Section 30 of the Indian Contract Act, the object was not unlawful within the meaning of s. 23 of the said Act. Void agreements are not the same as illegal agreements. An agreement is merely void if the law prohibits its enforcement. As such, it can be said that all illegal contracts are void, but not all void contracts are illegal or unlawful.
Difference between contingent contract and wagering agreement
The distinction between a contingent contract and a wagering agreement is as follows –
A contingent contract is defined under Section 31 of the Indian Contract Act 1872. A wagering agreement is defined under Section 30 of this Act.
Section 31 of the Indian Contract Act defines “contingent contract” as a contract to do or not to do something, if some event, collateral to such contract, does or does not happen. Section 30 of the Indian Contract Act deals with the wager but it doesn’t define the term. However, a wager means a promise to pay money upon the determination and ascertainment of an uncertain event.
A contingent contract may not be contingent in nature. A wagering agreement is basically contingent in nature.
Contingent contracts are valid and enforceable in nature. Wagering agreements are void and unenforceable in nature.
Parties to a contingent contract may or may not bind themselves by reciprocal promises. Wagering agreements bind both parties to reciprocal promises.
The purpose of a contingent contract is to do or not to do something in response to certain events. The purpose of a wagering agreement is to win or lose the betting amount.
A contingent contract is a contract to indemnify the loss. The wagering agreement involves paying money or money’s worth on the outcome of an uncertain event.
Contingent contracts are beneficial to society. It has been believed that wagering agreements are detrimental to the public good.
It is only the future event that determines the outcome of a wagering agreement. In a contingent contract, the future event is only collateral.
Conclusion
After analyzing both the concepts we can conclude that wagering agreements are void and contingent contracts are valid. So, we can say that we should avoid wagering agreements.
Law of Contract & Specific Relief- by Dr Avtar Singh
Elements of Mercantile Law- by N.D. Kapoor
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This article is written by Parth Verma, a student of the School of Law, Christ University, Bengaluru. This article seeks to explain the concept of laws and ethics among people all over the world, along with the differences that exist among them.
It has been published by Rachit Garg.
Table of Contents
Introduction
In our everyday lives, we observe various rules and regulations that we are bound to follow. From following the traffic rules to filing taxes in a suitable manner, there are several rules that play a vital role in any society. These are the rules generally formulated by any authoritative body. However, at the helm of these rules are certain socially acceptable practices. Such practices essentially shape these rules. These were followed by the members of society for a very long period of time and were used to regulate the behaviour of people at a time when there were no formal rules. These practices, known as ethics, are then incorporated into the laws of the country due to their general acceptability among people. For several reasons, all ethics are not capable of becoming laws. This article aims to find the basic differences between laws and ethics to determine their overall relationship and changes that should be made to strengthen them.
Difference between law and ethics
Laws and ethics, despite being interrelated in various aspects, have quite many differences between them. These differences are as follows.
Meaning
Law
‘Law’ is a term as well as a concept that is not capable of being defined in a singular sense due to its broad scope. Over the years, different philosophers proposed various aspects of law, all of which were correct in their own sense but failed to provide a single definition of it. As a result, various schools and theories of law exist to this date, proposed by several thinkers such as Emmanuel Kant, Plato, Aristotle, Jeremy Bentham, etc.
Analyzing its definition from a broader point of view, a law can be defined as a set of rules and regulations that are used for regulating human behaviour. This definition covers the major aspects of the law. However, the law has various other aspects and features which can’t be covered in a single statement. The things that are common in each thinker’s opinion about the law are that the violation of these laws tends to cause some punishment or penalty, for example, imprisonment or payment of compensation. These laws also can’t be created by any individual and should be made a formal authority in the country. As a result, Austin defined the law as a ‘command of the sovereign’ wherein the government or the authority is not subjected to any influence from external sources. These laws, however, can’t be made in complete isolation from the needs and expectations of the people living in that country. Hence, the law also needs to take into consideration society and the norms that are being followed by citizens.
Ethics
The term ethics has been derived from a Greek term known as ‘ethos’ which means a custom or a character. It focuses on the moral aspects of society along with the moral behaviour of individuals. Ethics essentially refers to the basic values that an individual should have as a member of society. These ethics are not codified or uniform across the regions, as different communities might have different values and ethics, which are then passed on from one generation to the other through word of mouth. In each and every field, ethics are of the utmost importance to ensure that there is no chaos. For example, legal ethics are to be followed by professionals working in the legal field in current times. Society has its own ethics and norms that are to be practiced by its members in their day-to-day lives. Most people are also bound by their own religion or dharma to follow and maintain certain ethical standards for living in the religious community.
With respect to the relationship of ethics with law, ethics are the informal laws of any community. Though there is no obligation on any person to follow the ethics nor are these enforceable by the state, any person is expected to practice certain ethics.
An example of ethics is paying respect to our elders in India or being honest in our work. These are not protected in the form of laws but enjoy general applicability in society to live in harmony and co-existence. Hence, ethics are also very important for any nation to thrive. As ethics essentially aims to distinguish between right and wrong, which is also the underlying premise of law, as a result, ethics and law are very closely related as a result.
Origin
Law
Laws are made by the state, which includes the lawmakers of the country. These might include legislators. Apart from the lawmakers, the entire Parliament, including Lok Sabha, Rajya Sabha, and the President, is involved in the procedure of lawmaking that is also highly formal in nature. This is the position of the law in current times. However, laws have originated from the writings and commentaries of various jurists and legal thinkers, which led to the establishment of various schools of law. The various schools of law are as follows:
Natural School
According to the Natural School of Jurisprudence, laws aren’t made by human beings. They only discover and apply these laws. It is some external force, such as God, who makes these laws. The rights provided to human beings are inherent by virtue of human nature. It means that each and every human being is to be provided with certain basic rights that can’t be taken away from them under any circumstances. Further, it is also based on the fact that the law is discovered and interpreted by human beings due to their better reasoning capacity than all the other creatures on earth. The main propounders of this school were Aristotle, Emmanuel Kant, etc.
Positive School
Under the Positive School of Law, the laws are made by the person who is empowered to do the same. In other words, the law is the command of the sovereign. The laws should be strictly separated from morals and religion. The laws made by the state are positive in nature, which means that each and every individual should aim at upholding the rights of others. If they fail to do so, they might be subjected to sanctions or penalties. Hence, as per this school, sanction or enforcement is the very essence of the law. The main proponents of this school are Jeremy Bentham, Austin, etc.
Sociological School
The Sociological School of Jurisprudence focuses on the functional aspect of law, which is the effective administration of justice. As per this school, the law is the body of principles that are recognized and enforced by the various tribunals for the administration of justice. People obey the laws not because of the fear of punishment but to meet their needs. The sanctions imposed for not following the law are not the force but the awareness of the people. The main propounders of this school were Roscoe Pound and Montesquieu. This is one of the very last schools of jurisprudence.
Historical School
According to this school, the laws have partly been derived from the social habits of the people and partly from the different experiences of the people in their lives. The laws already exist in this world and are known by the people. These laws then develop gradually along with the silent growth of customs and unformulated public opinion. It was also stated that the law develops like a language over the years. It develops various new terms and jargon that are then used in common parlance. The main proponent of this school was Savigny.
Realist School
As per this school of jurisprudence, the laws are made by the judges. In other words, the role of judges in giving decisions in the courts is vital as they set the precedents that will be followed by future courts. The focus is more on the judicial precedents and the laws are made on the basis of what the judges in the courts decide. Laying down a uniform set of laws would help in regulating human behaviour, but at the same time, certainty of law is a myth. The predictability and the usage of the laws depend on the varying facts and circumstances of each case. The main propounders of this school were Gray and Cardozo.
Philosophical School
This school of jurisprudence is very unique in the way that it doesn’t concern itself with what the existing laws are or what previous laws were. The thinkers aim to develop such ideas of justice to provide for an ideal legal system for all. The thinkers of this school have considered the law to be composed of various abstractions. The laws are generally removed from their objectivity when they are required to be very definite and precise to be applicable universally. The main propounders of this school were Hugo Grotius, Jean Jacques Rosseau, etc.
These were some of the writings of different thinkers that laid down the origin or the foundation of the present laws. Hence, these are at the foundation or provide the origin of laws.
Ethics
All ethics or ethical standards are a byproduct of all societal norms and traditions that have been followed by people for many years. Certain customary practices laid down the general behaviour to be followed by the members of society, which eventually took the shape of ethics.
In other words, ethics and values for any community are stated by the members of the community itself. There is no intervention by the state. These can also be made by legal thinkers, philosophers, etc., belonging to a common sect. Ethics or values aren’t laid down in a written form in any community. These are rather passed on among the people through word of mouth and are propounded by either family members, religious leaders, or philosophers belonging to that particular region or community. Further, these ethics are not codified or available in a single source. This is because people living in different regions, as well as belonging to different communities, have varying belief systems, owing to which their customs and ethical values would also be different.
Uniformity
Law
All the laws are made in the country to apply to all the people. No other individual or entity is allowed to make the laws. This helps in ensuring uniformity of rules in the country that are to be followed by all. No section of society can claim to have different laws. This helps in ensuring equality in the country and, at the same time, ensures that there is a common set of laws applicable to all. In other words, they have a uniform impact on all citizens and institutions across the entire nation. This provides clarity to citizens and also removes the scope for any misuse or ambiguity due to the existing legal provisions.
Ethics
Ethics can’t be made applicable to the people of an entire country. The main reason behind it is that different people follow different customary practices that might be unique to their own community or group. As a result, these practices might even be conflicting at times. For example, bigamy is allowed among a group of Hindus in Goa, whereas the same is prohibited among other sects of Hindus. This clearly shows that there can’t be any uniformity among the ethics of different communities. However, within a single community or group, there is a higher possibility that people will follow the same ethical values and standards.
Role of Religion
Law
Religions might play a significant role in the formulation of codified laws for any given country. Examples of the same can be observed for all religions in India, such as the Hindu Marriage Act, 1955, Indian Christian Marriage Act, 1872, and the Dissolution of Muslim Marriage Act, 1939. In this way, certain important aspects of various religions are accommodated in the form of laws that are going to be binding on the citizens. Hence, religion impacts the law, and at the same time, laws also impact any religion.
However, the laws aim to ensure that no religion is given any preference over another. Further, no specific religion is allowed to have any influence over the laws of a nation. Its primary purpose is to ensure secularism, or ‘Dharmnirpekshta’, which has been stated in the preamble of the Indian Constitution. As per secularism, religion and law should be kept separate from each other, and the state shouldn’t promote any particular religion or prefer it over others.
Ethics
Most ethical values are determined by society or any group on the basis of religion. The religion being followed by a particular community determines the ethics and traditions that it needs to follow. As a result, the ethical values stated under one religion might be in conflict with those of some other religion. It becomes very difficult to separate religion from the ethical values of a given community. Religion, to a large extent, influences the practices people belonging to a given community or group resort to.
Flexibility
Law
Laws can be both flexible as well as rigid at the same time. With the changing needs of society, the laws are required to be changed to accommodate the new ideas and the vision of the people. The laws should be kept flexible in such situations.
At the same time, bringing amendments to the laws is not very easy as it involves a complex procedure. However, the laws should neither be very dynamic nor very rigid. If the laws became very dynamic, they could be easily changed and there would be no stability. On the other hand, if they are too rigid, it would be difficult to change them and accommodate the changes in society. This could eventually lead to a revolution to bring about a change in the system, thereby hampering the peace and stability of the land.
Hence, laws are flexible to a certain extent, but a considerable amount of effort would be required on the part of lawmakers to use this essential feature of the law.
Ethics
Ethics is far more rigid in comparison to laws because these are followed by the people in a given community since time immemorial and without any stoppages. Bringing about a change in ethics would require changing the outlook of the entire community that has held a certain belief for centuries. This is very hard to achieve and might even lead to protests and revolts by the community at times, thereby disrupting public order.
Objectives
Law
The law has certain objectives that it aims to achieve. These objectives are as follows:
Administration of justice
The primary objective of any law is to administer justice in such a manner that it is fair to all. By laying down the acts which are unlawful and the punishment for doing such acts, the state ensures that fair justice is provided to the aggrieved person. This justice is administered through sanctions or punishments, which essentially involve either imprisonment or the payment of compensation to the injured party. At the same time, by giving punishment to the wrongdoer, the law creates a deterrent impact on all other people in the country and seeks to restore the condition of the injured.
Ensuring peace and stability
Another objective of any law is to ensure that there is stability in society, with different communities living in peace. This would ensure a stable social and public order, which would become the foundation for the development of a nation.
Enhances social, political, and economic development
The laws aim at enhancing the political, social, as well as economic activities of any country. However, the qualification to achieve the same is that the laws shouldn’t be arbitrary and should rather focus on the rights of all in a country.
In all those nations where the laws are made to fulfill the personal desires of the leader or the whims and fancies of the government in utter disregard for the people, such as in North Korea, all activities will eventually suffer. Their economy is on a continuous decline, with people dying due to starvation. There is no voting process as the dictator has the sole authority till he dies, as given in their Constitution. The laws hence can have a significant impact on the country’s position in all respects in the entire world.
Ethics
The objective of ethics, on the other hand, is to make people aware of the difference between right and wrong so that they become good citizens and protect the moral rights of others. These provide a template for people of the basic conduct and nature they should have in society. From respect for the elderly to talking politely, the ethical standards aim to continuously improve to facilitate the process of societal inclusion and development. In this way, ethics aims to reform the entire society. The meaning of morality is continuously changing, and what might have been moral for citizens 50 years ago might no longer be considered moral. Changes in ethical values could also act as an instrument of social change. An example of this is the abolition of sati. When the entire Hindu community accepted this practice as immoral, it was removed despite its being in practice for many centuries.
Punishments and penalties
Law
For the breach of any law, a person could be penalized in the form of some fine or compensation. The wrongdoer can also be punished through imprisonment for a certain period of time. In other words, a person could be penalized if he/she doesn’t act in accordance with the laws of the country.
Ethics
No punishment or penalty could be inflicted upon a person if he/she doesn’t follow the ethical standards laid down in any society. Ethics only lays down certain acts that a good individual is expected to perform in a society that are not enforceable by the state.
Enforceability
Law
The laws are legally enforceable by the state upon the citizens. In other words, a person is bound to follow the laws without fail. If they breach the laws, appropriate legal action could be initiated against them, either by the aggrieved party or by the state.
Ethics
Ethics are not enforceable or binding on any person. No person can be compelled to follow any particular tradition or engage in required ethical conduct. Following certain ethics is a matter of choice for a particular individual, and the state can’t force any person to necessarily follow them.
Examples and classifications
Laws
The laws can be divided into various categories based on different criteria. On the basis of region, the law can be divided into international law and municipal law. While international law consists of statutes and covenants that are applicable to all countries at the global level, municipal laws refer to the domestic laws of a given country. In the event of a conflict among them, the municipal laws will always prevail.
They could also be categorized on the basis of dealing with individuals. These could be divided into public law (focusing on public rights) and private law (rights of a private individual). There are also many branches of law, such as common law (uncodified) and civil law (codified). These are some major classifications of the law. An example of a legal provision is the Indian Penal Code, 1860.
Ethics
Ethics can be divided into four major categories. These are as follows:
Normative ethics: This form of ethics is concerned with determining how one ought to act in a moral sense in a collective group or a community. Instead of focusing on the current trend of morality in society, it aims to delve deeper into how people should and must morally interact with others.
Personal ethics: It refers to the ethics that an individual needs to follow while interacting with others in society. An example of ethical conduct is obeying and respecting our parents. It also consists of honesty, integrity, and selflessness while interacting with others in a social setting.
Social ethics: It refers to the ethics that aim to reflect upon the morals and ethics of the social structure and the social systems in a given region. It not only focuses on achieving individual interests but also works towards the attainment of group interests.
Professional ethics: It refers to the ethics that aim to determine the ethics and behaviour of an individual in the business environment. An example of the same is taking responsibility for any business-related task and at the same time, being accountable for it.
Overview of difference between laws and ethics
Basis
Laws
Ethics
Meaning
These are a set of rules and regulations to administer justice and regulate human behaviour in society.
Ethics refers to all the acceptable customs and practices that have been in place since time immemorial.
Origin
Laws are made by the legislators or the lawmakers in a country, and Parliament plays an active role in the entire process.
Ethics are a byproduct of society. These are formulated by religious leaders or family members in society.
Role of religion
Religion has no role to play in the formulation of laws.
Ethics can be decided on the basis of the religion of the people in a particular region.
Uniformity
Laws are uniform across the entire country, and all people are bound to follow them.
Ethics vary from region to region depending on the beliefs of different people living in different areas.
Flexibility
Laws are more flexible than ethics as they can be changed on the basis of the demands of people.
Because of the rigid mindsets of the people in a community, ethics are very difficult to change.
Objective
The objective of laws is to create a civil society with proper social order and peace.
Ethics aim to make people distinguish between right and wrong and protect the moral rights of others.
Punishment
A person can be punished for committing any wrongful act, such as the payment of fines or imprisonment.
A person can’t be punished for not following the ethical standards as they are not legally binding.
Enforceability
Laws are enforceable by the state upon the citizens of the country.
Ethics are not enforceable on the part of the state, and individuals are not legally bound to follow them.
Examples
An example of law are the provisions of the Indian Penal Code, 1860.
An example of ethics is respecting and obeying our parents.
Views of various scholars on law and ethics
John Rawls
In his book, ‘The Theory of Justice’, John Rawls focused on achieving equality in society and treating every person with absolute fairness. The purpose of any law should be to provide people with the best possible benefits, even the less advantaged members of society. Hence, his theory directly focused on equality in society through fairness and cooperation among members of society regardless of their race, religion, gender, caste, etc. It means that his views on ethics and laws were directly entwined with each other and he didn’t identify any direct distinction between laws and ethics. He was a staunch opponent of utilitarianism, believing that it could lead to an unstable society and would generate disagreement among people.
HLA Hart
According to him, laws and ethics are highly intertwined with each other. They can’t be separated from each other under most circumstances. The laws are made on the basis of the ethics that the people follow in a given region, and hence these should be subjected to moral scrutiny. Social morality and ethical standards that people follow in any given society eventually influence the law, either abruptly or through concerted action by people. Morality is at the core of each and every legal system and is extremely close to any given law. However, he at the same time explicitly stated that morality is not always a necessary condition for making any law valid.
Conclusion
There are various differences between ethics and laws. Still, it becomes very difficult to separate them in society as they ensure effective public order and peace among their members. There are several ethics that should be removed or changed with the help of laws, and in a similar manner, ethics can also act as an instrument to bring about a change in society. There is a need to balance the use of ethics in laws so that the old traditions and ethical standards are respected and, at the same time, they have a uniform impact on all citizens. It is only then that the laws would keep public order under control and people would also be satisfied.
Frequently asked questions (FAQs)
How are ethics reflected in law?
Ethics are an integral part of the law. These ethics and societal values provide a strong foundation for any law made in a country.
Are ethics legally binding?
Unlike laws, ethics are not legally binding on any individual. It’s not compulsory for a person to follow certain ethics and they are only ‘expected’ to follow those being members of society.
How do laws bring about change in society?
Laws can act as strong forces to bring about changes in society. Formulation of new laws can help in curbing regressive or exploitative practices to ensure justice and public order in society. Basic moral rights are at the helm of all laws, thereby giving rise to legal rights.
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 Pragya Agrahari of Amity Law School, Lucknow. This article provides a detailed analysis of the matrimonial relief of judicial separation as provided under various personal laws. It also covers the difference between divorce and judicial separation.
It has been published by Rachit Garg.
Table of Contents
Introduction
According to the famous anthropologist Robert Lowie, “Marriage is a relatively permanent bond between permissible mates.” Marriage is a universal institution created to regulate the lives of human beings. It may have different implications in different cultures, but it is everywhere in society. In the Hindu social heritage, marriage is considered a sacrament. It is considered a religious duty of a person, and the marital bond is said to be inseparable and irrevocable. But with the advent of time, this concept has changed, and now it is no longer treated as inseparable. Under Indian matrimonial laws, marital relations can be put to an end by an agreement of judicial separation or through a divorce.
Judicial separation is a tool provided to married couples who are not willing to end their marriage entirely but only want to suspend some rights and obligations in marriage, whereas divorce ends the marriage entirely. An agreement of judicial separation provides an alternative to divorce.
This article will examine the concept of judicial separation and the grounds under which the decree of judicial separation can be pleaded. It also analyses its similarities and differences with divorce.
What is judicial separation
A judicial separation is a legal decree passed by a court to order a husband and wife to live separately or to end their conjugal relations without actually dissolving their marriage. It is sometimes called “divorce mensa et thoro”, that is, separation from ‘bed and board’. After the order of judicial separation, the husband and wife are not obliged to live together or cohabit, and all the basic marital obligations between them are suspended. They are merely separated from each other, consensually, so that they can get time to introspect their matrimonial relations. The agreement of judicial separation ordinarily results in either divorce or reconciliation between husband and wife. Hence, this period of separation acts as a time to review their marriage, and if they are not happy with their marriage, they can put it to an end with an agreement of divorce.
As the parties to a separation agreement remain husband and wife, they are not free to remarry. And if they remarry, they can be held liable for the offence of bigamy. If one of the spouses dies during the subsistence of the separation agreement, the other spouse will inherit his/her property. Another condition for a valid judicial separation was that a marriage should also be valid between the parties. The agreement of separation can’t take place in void marriages, but the case may be different if the marriage is voidable.
The various provisions for judicial separation were provided in the following Acts:
In the Hindu religion, marriage is considered a holy sacrament that is unbreakable and eternal in nature. It is considered not only for this life but also for many future lives. According to the ancient lawgiver, Manu, marriage cannot be dissolved. But due to the emergence of new problems in the modern life of an individual, various changes took place in Hindu law. Now, marriages are no longer considered indissoluble in nature. Various relief measures are provided to the parties in a marriage, in case of any disputes or other reasons, to dissolve the marriage through divorce or plead for judicial separation.
Section 10 of the Hindu Marriage Act, 1955 provides for the matrimonial relief of ‘judicial separation’ and the same position was also provided under Section 23 of the Special Marriage Act, 1954. The grounds under which the decree of judicial separation can be demanded by either husband or wife are the same as provided for agreement of divorce in both the legislations.
The various grounds for judicial separation were provided under Section 13 sub-section (1) and (2) of the Hindu Marriage Act, 1955, and under Section 27 sub-section (1) and (2) of the Special Marriage Act, 1954. Under the grounds specified in sub-section (1), either party can present a petition for judicial separation; and under the grounds specified in sub-section (2), only the wife can present the petition for judicial separation. Some of these grounds are as follows:
Adultery,
Cruelty,
Desertion,
Conversion,
Unsoundness of mind or mental disorder,
Venereal disease,
Renunciation,
Not heard for 7 years,
Bigamy,
Husband guilty of rape, sodomy or bestiality.
Parsi Law
In the Parsi religion, marriage is considered a contract and is solemnised through a ceremony called ‘Ashirvad’, in which the priest gives blessings to the married couples in the presence of two Parsi witnesses.
Under the Parsi Marriage and Divorce Act 1936, the provisions for nullity of the marriage, divorce, and judicial separation were provided as a relief measure for married couples. Section 34 provides for ‘suits for judicial separation’ which can be filed by any Parsi husband or wife on the various grounds mentioned in the Act for divorce under Section 32. These grounds are similar to those mentioned under the Special Marriage Act, 1954, and the Hindu Marriage Act, 1955.
Christian Law
Christian marriages are solemnized according to the Christian rites, ceremonies, and customs in the presence of the Minister of Religion, the clergyman of the church, or any other religious person. These marriages also take place in contract form.
The various provisions related to marriage and other personal laws of the Christian community were provided under the Indian Christian Marriage Act, 1872, but the provisions regarding divorce and dissolution of marriage were provided under the Divorce Act, 1869. Section 22 and Section 23 of the Divorce Act, 1869 allow the Christian husband or wife to obtain a decree of judicial separation on the grounds of adultery, cruelty or desertion for more than 2 years. This decree will be the same as a divorce a mensa et toro, that is, a divorce that separates the husband and wife and forbids them to live together but does not actually dissolve the marriage.
This decree can be reversed under Section 26 of the Divorce Act upon the petition of the spouse of the party on whose petition the decree of judicial separation was granted. It can be prayed on the ground of his/her absence during the petition for judicial separation, and if the court finds it satisfactory, it can pass a decree for its reversal.
Muslim Law
There is no concept of relief from judicial separation in Muslim law. In the case of Rahmat Ullah and Khatoon Nisa v. the State of U.P. (1994), it was observed that “Muslim Personal Law or Shariat Law, although recognise the concept of talaq, that is, divorce, but doesn’t know or does not conceive of any such thing as ‘judicial separation as provided under the Hindu Marriage Act and the Special Marriage Act”. Though there is no law which specifically provides for the relief of judicial separation to the spouses, there are some landmark cases which extend the grounds provided under Section 2 of the Dissolution of Muslim Marriages Act, 1939, for the dissolution of marriage on the grounds of judicial separation. Some of the grounds as provided under the Act are:
No whereabouts known of husband for 4 years,
Neglect or failure to provide maintenance for 2 years,
Husband sentenced to imprisonment for 7 years or more,
Failure to perform marital obligations for 3 years,
Impotency,
Insane or suffering from leprosy or venereal disease,
Repudiation of marriage by wife before 18 years when marriage solemnised before 15 years,
Cruelty.
In the case of Ms. Jordan Diengdeh v. S.S. Chopra (1985), the honourable judges enumerated various grounds under which a Muslim wife can also obtain a decree for the dissolution of marriage. This case also stressed the need for uniform laws with regard to the nullity of marriage, divorce, and judicial separation, which will apply to all people irrespective of their religion.
Grounds of judicial separation in India
Adultery
It refers to voluntary sexual intercourse between one of the spouses in a marriage with another person out of wedlock. In the case of Dr. H.T. Vira Reddi v. Kistamma (1968), the Court provided an award of judicial separation to the appellant (husband) on the ground that the respondent (wife) had committed sexual intercourse with a third person. The Court held that “the relief of legal separation will be provided even if a single act of infidelity on the part of the other spouse is proved.”
Cruelty
The meaning of cruelty is not the same as the word cruelty understood in the layman’s language. ‘Legal cruelty’ has a different connotation. The Supreme Court, in the case of G.V.N. Kaeswara Rao v. G. Jalli(2002), tries to define the term ‘cruelty’ in reference to marriage. The Supreme Court held that the act would be cruel if it was intended to cause suffering to the other party. It may not create apprehension in the mind of the spouse that it is harmful to live with the other spouse. The intention of the party causing the cruelty is immaterial. Moreover, it need not be against the petitioner nor need to be done only by the respondent.
Desertion
Desertion for a continuous period of two years can be the ground for the appeal of judicial separation. It means a total repudiation of marital obligations by one party without any reasonable cause and the consent of the other party. It can be of three types-
Actual desertion
When any of the spouses actually abandons the other party through any of his/her acts. For example, in the case of Meena v. Lachman (1959), the wife left for her parent’s home without informing her husband and made false promises of return but did not come back for a period of 2 years. The Bombay High Court held desertion and ordered judicial separation.
Constructive desertion
When any of the spouses creates such an environment which forces another party to leave, it is called ‘constructive desertion’ by the party who is forced to do so. For example, in the case of Jyotish Chandra Guha v. Meera Guha (1969), the husband was not interested in his wife and his behaviour towards her was cold and rude from the beginning of the marriage, due to which the wife suffered a lot of agonies, mental and physical, and was forced to file a divorce petition. It was held to be desertion at the hands of the husband.
Wilful neglect
When any of the spouses intentionally neglects the other party without physically deserting, it is wilful neglect. It includes the refusal to cohabit or the neglect of various other marital duties.
Conversion
When any one of the spouses has converted to another religion and ceased to be a Hindu, the other party can appeal for judicial separation. In the case of Vilayat Raj v. Smt. Sunila (1983), where the husband converted to Islam and moved a petition for dissolution of marriage. The question was whether an apostate of Hinduism could file a petition for dissolution of marriage under the Hindu Marriage Act, 1955. The Court held that he can file a petition as the conversion of religion per se does not end the marriage but only acts as a ground for ending the marriage. However, the Court also observed, “party is not entitled to take advantage of his own wrong or disability and gain from a situation which he has brought about, resulting in detriment to the other spouse.”
Unsound mind or mental disorder
If any one of the spouses is of unsound mind or suffering from any mental illness or disorder that is incurable in nature and it is difficult for another party to live with the spouse with such a condition, one can file an appeal for judicial separation. In the case of Anima Roy v. Proboth Mohan Roy(1968), where the husband demanded the nullity of the marriage on the ground of the unsoundness of mind of his wife, it was contended that she was suffering from schizophrenia on the date of the marriage. The Court did not allow his petition as there was an unnecessary delay of three years from the date when it was alleged that he came to know about his wife’s problem, in the filing of the petition, and the evidence shown was also not satisfactory.
Venereal communicable diseases
If any one of the spouses is suffering from any venereal diseases which are communicable and incurable, like HIV/AIDS, HPV, syphilis, etc., the other party can pray for the agreement of judicial separation. In the case of Madhusudan v. Smt. Chandrika (1975), the husband appeals against the dismissal of his petition by the District Judge for annulment of marriage or judicial separation on grounds of his wife’s suffering from venereal disease, syphilis. The Court set aside the appeal as he was unable to prove that his wife was suffering from syphilis for a period of three years before the date of the petition. It was also not proved that the disease was incurable.
Renunciation
Renunciation means that the person has abandoned the whole world and all the material pleasures to lead a spiritual life and attain enlightenment. It is one of the grounds on which a party to a marriage can pray for judicial separation. In the case of Teesta Chattoraj vs. Union of India (2012), the expression ‘renounce the world’ was defined as to withdraw from worldly interests in order to lead a spiritual life. It means formally consenting to abandon, surrender, or give up a claim, right, possession, etc.
Presumption of not being alive
When any of the spouses goes missing for a minimum of 7 years and there is no information about his/her aliveness, nor is his/her family or friends aware of his/her presence, then it is presumed that the spouse has died and the other spouse can pray for judicial separation on this ground.
Grounds of judicial separation available to the wife
Bigamy
It refers to marrying the other person when one is already legally married to one person. Before the commencement of the Act, if the husband remarries the other woman, even when his wife is alive, the wife could file a petition for a grant of judicial separation from her husband. In the case of Harmohan Senapati v. Smt. Kamala Kumari(1978), the plaintiff (wife) has filed a suit for judicial separation as the defendant (husband) has married the other woman and lived with her without dissolution of their earlier marriage.
Guilty of rape, sodomy or bestiality
If the husband, after the marriage, becomes guilty of rape, sodomy, or bestiality, then the wife is entitled to file a petition for judicial separation on this ground. For example, if ‘A’ and ‘B’ are husband and wife and the husband ‘A’ is found guilty of rape of another woman, the wife ‘B’ can file a petition for judicial separation.
Non-resumption of cohabitation after an order of maintenance
If any decree or order was passed against the husband for providing maintenance to the wife under various acts like the Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the Code of Criminal Procedure, 1973, and no cohabitation between the husband and wife was resumed for a period of 1 year or more, the wife can file a petition for judicial separation.
Repudiation of marriage after the age of 15 and before the age of 18
If the marriage was solemnised when the girl has not attained 15 years of age and she has repudiated the marriage after attaining the age of 15, but not before attaining 18 years of age, the wife can file a petition for judicial separation. This ground plays a great role in providing relief to minor girls, especially from backward communities, who were married against their wishes.
Consequences of judicial separation
After an agreement of judicial separation, the husband and wife are no longer obligated to live together. Although their legal status as husband and wife remains unchanged, cohabitation between them remains suspended. Section 376B of the Indian Penal Code, 1860 provides legal relief to a separated wife by stating that if, after the decree of judicial separation, the husband had sexual intercourse with her without her consent, he would be held liable for punishment. The punishment for such an offence will be for a minimum term of 2 years, which may extend to 7 years. Moreover, the spouses were restrained from remarriage during the period of judicial separation. In the case of Narasimha Reddy v. Basamma(1975), it was held that if any spouse carried out a marriage during this period of separation before divorce, it would amount to bigamy. The spouses after the judicial separation were entitled to the same property rights as before, as upheld in the case of Krishna Bhattacharjee v. Sarathi Choudhary(2015), where the Supreme Court allowed the right of ‘stridhan’ to the wife after an agreement of separation. The Court held it as the exclusive property of the wife.
Sometimes, the court grants a decree of judicial separation for a period of one year so that spouses can take decisions either for conciliation or divorce. This period provides them time to introspect their marriage and provides an opportunity for reconciliation.
Is judicial separation the same as divorce
Judicial separation and divorce are both matrimonial reliefs provided by various legislation to the aggrieved party in a marriage. Both are ways to dissolve marital obligations and rights towards each other in a marriage. But unlike divorce, judicial separation is a ‘lesser evil’ as it does not end the whole marital bond itself. It only separates the husband and wife and restricts them from living together, but the marital bond between them as husband and wife remains the same. One can reverse the decree of judicial separation by living together or by resuming their conjugal obligations and rights toward each other.
In the case of Amit Singh v. Sandhya Singh (2019), the Allahabad High Court has enumerated various points of difference between the matrimonial relief of divorce and judicial separation.
Some of them are as follows:
Grounds
Divorce
Judicial Separation
Termination of marriage
After the agreement of divorce, the marriage bond between the spouses is terminated.
After the agreement of judicial separation, the marriage bond between the spouses is not terminated.
Mutual rights and obligations
The mutual rights and obligations against each other end with the divorce.
The mutual rights and obligations against each other remain suspended only in the case of judicial separation.
Chance of reconciliation
There is no chance for reconciliation as the marriage no longer exists.
There is a chance for reconciliation if the spouses agree to live with each other again and resolve their differences.
Right to remarry
The parties are allowed to remarry as they are no longer bound by any marital bond.
The parties are not allowed to remarry as their marital bond was merely suspended, not ended.
Status of being husband and wife
The parties are no longer called husband and wife.
Both parties remain husband and wife to each other.
Time for filing the petition
The petition for divorce can only be filed after one year of the marriage.
The petition for judicial separation can be filed at any time after the marriage.
Process
It is a two-step process. First, for reconciliation and then for divorce.
It is a one-step process.
Rights and liabilities
The divorced partner loses all his/her rights to the partner’s assets.
The partner in a judicial separation has the same rights as married ones in the assets of the partnership.
Why judicial separation is better than divorce
It was held in various cases that judicial separation is a ‘lesser evil’ than divorce, as the chances of conciliation in marriage are higher in the case of judicial separation. Unlike divorce, there is no permanent breakage of marital bonds in judicial separation. Therefore, it provides the time for both the parties in the marriage to introspect their relations and decide their future conditions, whether they want a divorce or a reconciliation. Sometimes, disputes in marriages arise due to some trivial matters and divorce appears to be a huge step for such disputes. In such cases, judicial separation provides an alternative means of relief to the victim.
According to English law, there are two types of divorce:
Absolute divorce (vinculo matrimonii), and
Limited divorce (a mensa et thoro).
A judicial separation is a form of limited divorce in which only the obligation of cohabitation is suspended while the marital bond still subsists. It acts as a final step before a permanent divorce to resolve their marital disputes. Moreover, this also provides some time for the parties to review their decision and take advice from their friends and family about the same.
In the case of Mozelle Robin Solomon v. Lt. Col. R.J. Solomon (1968), the Bombay High Court held, “The difference between the two is that a decree for divorce has the effect of dissolving the marriage and putting an end to the marital bond, thus making the absolute separation between the parties both in fact and in law. A decree for judicial separation is, however, not one of final irrevocability but is one for legal separation and does not of itself result in the dissolution of the marriage tie.”
Can judicial separation be granted in place of divorce
In the case of Vinay Khurana v. Shweta Khurana (2022), the Delhi High Court observed that matrimonial reliefs of judicial separation and divorce are completely different, although they are both granted on similar grounds. While judicial separation does not intend to end the marital bond between husband and wife, the divorce liberates them from their marital bond, giving them the right to remarry. Hence, the court held the earlier decision of the Family Court as faulty, which granted a decree of judicial separation in place of a divorce.
This case also talks about the powers of the Family Court to alter the relief sought by the parties. It was held that it is not for the Family Court to substitute one matrimonial relief sought by the parties, with the other. It cannot tell the parties what is ‘good and bad’ for them. It can only advise the parties, taking into account the various facts associated with the case.
How to apply for judicial separation
A petition for judicial separation can be filed by either party, husband or wife, on the grounds provided under the respective acts. According to the provisions under Section 19 of the Hindu Marriage Act, 1955, every petition related to judicial separation shall be presented to the district court within the jurisdiction:
Where marriage was solemnised,
Where the respondent resides at the time of the petition,
Where the spouses last resided, or
Where the petitioner resides at the time of the petition.
According to Section 20 of the Hindu Marriage Act, 1955, every petition should contain the facts and nature of the case on which the claim for judicial separation can be founded. It must also show that there is no collusion between the parties seeking judicial separation.
Section 21 of the Hindu Marriage Act, 1955 provides that all the proceedings related to this Act are regulated by the Code of Civil Procedure, 1908. In Order VII Rule 1 of the Civil Procedure Code, 1908, it was provided that every plaint for judicial separation shall contain the following information:-
Name, place and residence of the petitioner,
Name, place and residence of the respondent,
Facts of the case,
Jurisdiction of the court,
Grounds for judicial separation,
Relief that the petitioner seeks,
Date and place of marriage.
After such a petition, the court sends notice of the petition to the respondent and hears both the parties’ arguments. The court will examine the truth of the grounds under which the claim for judicial separation was made and pass a decree of judicial separation if satisfied with its credibility. The trial of a petition for judicial separation should conclude as expeditiously as possible or within six months from the date of such petition.
Once the parties are judicially separated, they can also apply for a divorce if the circumstances of the case demand it. Under Section 13B of the Hindu Marriage Act, the parties can obtain a ‘divorce on mutual consent’ on the ground that they are living separately for a period of one year or more. After the first motion and the presentation of the divorce petition, they will get a period of six months, known as ‘cooling period’ which was granted as a last chance to reflect on their decision. But this cooling period was not necessary, especially when the parties were already judicially separated. It has a similar process as a petition for judicial separation except that the petition for divorce cannot be presented before one year of the solemnization of marriage.
Limitations of judicial separation
Complex as divorce: Although it acts as an alternative to divorce, judicial separation is not a less complex process than divorce. The grounds for both of these matrimonial reliefs are the same and the procedures for filing petitions for both of them are the same.
Unnecessary marital bond: Judicial separation seeks to save that marital bond, which has already been broken on severe grounds like cruelty, desertion, adultery, etc. just to show society that keeping the marital bond alive is unnecessary.
Same psychological effect: The agreement of judicial separation projects the same stress and psychological tension in the minds of the spouses seeking separation as in the case of divorce.
Status of judicial separation globally
England
The provisions for judicial separation in England are provided in Section 17 and Section 18 of the Matrimonial Causes Act, 1973. Either or both parties can file a petition to obtain judicial separation.
According to the Royal Commission on Divorce and Matrimonial Causes, appointed in 1909 and presided over by Lord Gorell, judicial separation forces celibacy while remaining in the ties of marriage. It was criticised many times due to its inadequacy to resolve the situation and its detrimental effects on the parties and their children. However, the Commission upheld the requirement of judicial separation for those for whom the divorce was repugnant on religious and conscientious grounds. Another Royal Commission on Marriage and Divorce in 1956 called for the retention of this matrimonial relief on similar grounds.
The USA
In the United States of America, it is known as ‘legal separation’ while it has the same meaning as judicial separation. Laws related to legal separation are different in different states of the U.S. In fact, some states do not even recognise the concept of legal separation. The states that recognise this concept consider it essential for religious purposes or for enjoying various other maintenance benefits.
Australia
In Australia, provision for separation is contained in Section 49 of the Family Law Act 1975, and it means no more living together as a couple. The federal family laws of Australia define separation as “an act of ending the marriage or de-facto relationship” and it involves the ending of cohabitation between the parties. The couples can also be separated under one roof by fulfilling certain criteria. This is called ‘separation under one roof.’ Neither any legal process to obtain separation is required nor any registration of separation needs to be done. But the couples need to inform the relevant authorities about the same. They also have to take note of the date of separation as it is a pre-requisite to obtaining a divorce in Australia. A couple can obtain a divorce only after a separation of one year or more.
Canada
In Canada, the provision for divorce and separation is contained in Section 8 of the Divorce Act, 1985. When the couples end their marriage and start living separately, then they are called ‘separate’. There is no concept of judicial separation as such, but there is a concept of ‘separation agreement’, which is a contract made between the parties divorcing or separating. Also, the separation for one year forms the ground for obtaining a divorce. Separation agreement is a contract between the couples which deals with various issues between the parties like living arrangements, division of property, maintenance, custody of children, etc.
Conclusion
Marriage in our society, especially in India, is considered a sacrosanct union and the breakage of this sacred union is seen as an inauspicious event. This belief, from time immemorial, has mandated many couples to live in forced marriages, which are full of unhappiness. People hesitate to seek the relief of divorce as it is a very huge step for them, enough to tarnish their reputation, especially in the case of women. Hence, they can go for various other alternatives.
Judicial separation provides an alternative to divorce, which can be filed any time after the marriage. If the parties to the marriage are not happy with their marriage, they can pray for judicial separation and meditate on their relationship. There are many advantages of judicial separation over the agreement of divorce, as aptly stated by the courts, that it is a lesser evil than divorce. It provides time for the parties to rethink their decision and reconcile with each other. This tool has been proven in restoring peace among broken families and in maintaining the piousness of the institution of marriage.
Frequently asked questions
What happens after the decree of judicial separation?
After the decree of judicial separation, the wife and husband are free from the obligation of living together. During the period of separation, they get a chance to mend their relations and seek annulment of the decree of separation. They can also seek a divorce and dissolve their marital relationship if they are unable to restore peace between them.
Which is better for matrimonial relief, divorce or judicial separation?
Judicial separation seems to be a better matrimonial relief and the best alternative to divorce. Before the breakage of the marital bond completely, it provides a space for reconciliation. Moreover, it also does not dissolve the marital tie permanently, it just suspends some obligations and rights between them.
Can a wife be entitled to maintenance from her husband after the decree of judicial separation?
Yes, the wife is entitled to maintenance from her husband even after the decree of judicial separation. If the court finds that the wife is unable to meet her own expenses, it can order maintenance for the wife. This position was held in the case of Rohini Kumari v. Narendra Singh (1971).
Can a Muslim woman seek the relief of judicial separation?
No, Muslim women cannot seek the relief of judicial separation as there are no provisions for judicial separation in their personal laws. Sharia law and other personal laws of Muslims do not recognise any such thing as judicial separation. They only recognise matrimonial relief of talaq (divorce).
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A Start-up grows when it has a steady flow of investments. A Start-up can finance itself from banking institutions, venture capitalists, private equity, or angel investors however there are multiple restraints attached to it as well. A small entrepreneur might find it difficult to have access to these financial methods. Therefore, it becomes necessary to broaden the range of financing instruments available to the Start-up ecosystem to continue their role in investment, growth, innovation, and generating employment. This is where crowdfunding comes into play.
Initially, Crowdfunding gained popularity in India through various other sectors, including medical expenses and social impact businesses. Crowdfunding for Startups is still a growing concept in India, but with the boom in the start-up ecosystem, it could become the most popular source of investment opted by small enterprises.
This article aims to understand the concept of crowdfunding in India, its regulations, and its drawbacks.
What is crowdfunding
Crowdfunding is a method used to raise money, where a group of people contributes by pooling funds for startups, projects, or any other ventures. Small amounts of funds are put together by a large number of investors by way of fund-raising campaigns, accompanied by strong advertising for a specified period. These fund-raising projects are carried out on crowdfunding platforms, social media, etc.
One can congregate crowdfunding from friends, family, and entrepreneurs who believe in the business concept. Crowdfunding could also be a very persuasive way to pitch your ideas to potential investors.
Types of crowdfunding
Crowdfunding is an umbrella concept under which there are various kinds of crowdfunding. The different types of crowdfunding are:
Equity-based crowdfunding
In this type of crowdfunding, the benefactor is allowed some equity in a company by way of trading capital. The owner of such equity has a share in the profit by way of a dividend or distribution. However, such a type of crowdfunding is illegal in India.
Reward-based crowdfunding
Any contribution in exchange for a reward is called Reward-based crowdfunding. The reward can be in the form of giving access to the company’s products or services. It is non-equity-based funding. The reward-based funding is common for projects that involve free software development, motion picture promotion, scientific research, civic projects, etc.
Donation–based crowdfunding
In Donation based crowdfunding individuals donate and contribute a small amount of finance without any expectation of return. This type of crowdfunding is mostly used for projects that involve social causes. We have seen that Donation-based crowdfunding is used in situations of natural calamities, disaster relief, charities, etc.
Debt crowdfunding or Peer-to-Peer (P2P) lending
P2P crowdfunding is similar to any other loans and these loans are repaid along with interest. The rate of interest can be decided by a mutual agreement between the borrower and the lender. In this type of setup, the borrower can be an individual or a legal person.
Difference between crowdfunding, private equity, venture capital, and bank loan
S.No
Basis
Crowdfunding
Private Equity and Venture Capital
Bank loan
How is it raised?
In Crowdfunding the business is pitched to a large online audience through which it can generate funds either through pre-order of products or through the sale of items at a discount.
In PE and VC the business idea is pitched to a limited set of investors or High Net Worth Individuals (HNIs)
Banks usually require a proven track record or a proven business model for financing.
Return on Capital
In crowdfunding, no equity is given in return for the finances provided. Also, Equity crowdfunding is illegal in India.
In this type of investment, the Entrepreneur must provide equity in return for capital.
A bank loan usually requires repayment and collateral.
Stage
Crowdfunding doesn’t require any previous track record and is used generally for raising seed capital.
A business can raise finances from PE or VC after the business has generated certain tractions.
A bank loan cannot be obtained without having a proven track record.
Advantages of crowdfunding
Availability
Anyone who has basic computer skills and a clear business idea can set up a crowdfunding campaign page.
Vast network
For successful crowdfunding, it is important to increase its reach by adopting various networking strategies such as search engine optimization (SEO), etc. This helps create a vast network of people.
Building a community
For raising funds through a crowdfunding campaign a business needs to share their business idea with people who could be prospective buyers or clients in the future. Through this, a community of people could be built successfully.
Advancement in the business
By proposing your business idea before a targeted audience a business could receive positive as well as negative feedback. A business could make advancements even before entering the market based on this feedback.
Complete ownership
No requirement to give up any equity or any requirement to have a repayment plan or interest payments.
Disadvantages of crowdfunding
High scrutiny
The platforms that regulate crowdfunding campaigns might reject your business idea if it does not meet their criteria. The idea might also be rejected by the audience which might not be good for a business’s reputation.
Lack of protection
By disclosing your project details on an online platform you are open to the risk of data and identity theft, and scams.
Fees
Crowdfunding platforms as fees take some percentage of the amount received as donations, in case the business has received a very less amount then this option won’t be feasible.
Regulatory framework of crowdfunding
Crowdfunding is rather an unconventional concept that could not be placed either under “Public offer”, “Private placement” or as “VCF or AIF”. However, since the Indian government has been focussing more on start-ups and small businesses, so for promoting their growth, the government realized the importance of crowdfunding platforms in India as a fundraising platform to meet the needs of start-ups and other smaller companies.
Therefore to regulate, SEBI has brought a Consultation paper discussing the prospects of crowdfunding and its implementation in India. This Consultation paper aims to protect retail investors as well as provide capital to Startups and Small businesses.
Scope of these consultation papers
Donation-based, reward-based, and peer-to-peer lending don’t fall under the scope of SEBI. Therefore the three types of crowdfunding that are regulated by SEBI are:
Equity-based crowdfunding
Debt-based crowdfunding
Fund-based crowdfunding
Regulations provided
Eligible investors
As per SEBI’s consultation paper, only “Accredited investors” are eligible to invest through crowdfunding platforms. These Accredited investors include:
Qualified Institutional Buyers (QIBs) as per the definition provided in the SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2009.
A Company that is incorporated under the Companies Act with a net worth of Rs. 20 crores or more.
High Net-worth Individuals (HNI) with a net worth of 2 crores or more.
Eligible Retail Investors (ERI) who have an annual gross income of Rs. 10 lacs or more. ERIs would include those retail investors who have filed an income tax return for a minimum of 3 financial years. Additionally, the ERIs should not invest more than 10% of their net worth i.e. a minimum of INR 20,000, and cannot invest more than INR 60,000 in an issue through a crowdfunding platform.
Eligibility for companies and conditions
SEBI has excluded any company which has evolved as a business and is at a better stage of benefitting from the crowdfunding option. Therefore only the following companies are eligible for benefitting from crowdfunding:
A company that is not more than 2 years old,
An unlisted company,
A company that is not a branch or that is not an associate of any larger conglomerate or group of companies
Not engaged in financing ventures like further lending
Not engaged in real estate activities, and
Not offering more than INR 100 million in a year.
In addition to this, it also proposed that these issuer companies shall not engage in multiple platforms but route all their offers through one crowdfunding platform which is recognized by SEBI. They should not engage in advertising their offers to the public or in incentivizing others to promote their offers. They should also have provisions dealing with the oversubscription
Investment limit
SEBI has proposed that the offer through the crowdfunding platform shall not be made to more than 200 ERIs and HNIs. This excluded QIBs, thus, the offer could be made to an unlimited number of QIBs.
However, SEBI had further proposed that all QIBs should hold more than 5% of the securities issued collectively. Further, a company should purchase a minimum of 4 times the offer value per person, HNI should buy at least 3 times the minimum offer value per person and an ERI should purchase the minimum offer value per person which is INR 20,000 in a private placement of securities. Additionally, the limitation on investment by ERI is INR. 60,000.
Disclosure requirement
The whole crowdfunding procedure begins when a small company or a start-up sends an application to the crowdfunding platform. After the application is sent, the platform conducts due diligence if the results are positive, then the company’s information and requirements are posted on the platform. Accredited Investors can then assess the company and its requirements. If the investor is interested, then the issuing company can circulate the offer by private placement to the accredited investor who is registered on the crowdfunding platform.
In addition, SEBI has proposed that the private placement should be by provisions of Section 42 of the Companies Act, 2013. It provides details regarding the offer size and price, the financial condition of the company, details of the management and governance, and the risks associated with the business.
Generally, the offer documents do not contain information regarding the future plans because of the lack of history of the company, but it is advisable for the company to also provide future growth plans to the investors. Furthermore, the company raising funds is required to make biannual disclosures to the crowdfunding platform regarding financial statements, usage of funds, state of business, other fundings, and pending litigations or penalties.
Eligibility of crowdfunding platforms
SEBI has classified entities into three classes that can set up a crowdfunding platform:
Class I would include Recognized Stock Exchanges and the Depositories registered with SEBI.
Class II would include Technology Business Incubators that are promoted by state or central government and have experience of 5 years with a net worth of INR 10 crore or more and it should be registered as Society under Societies Act, 1860 or under Section 8 of Companies Act.
Class III would include the Associations of Private Equities and Angel Investors that have 3 years track record, 100 or more members, are registered under Section 8 of Companies Act, 2013, and have a paid-up share capital of INR 2 crores.
SEBI has also proposed separate entities with experience and knowledge in the field to form the platforms. It has also put forward a separate new class of Crowdfund AIFs for Fund-based crowdfunding.
Conclusion
Crowdfunding is still an evolving concept in the business world. We have seen successful crowdfunding campaigns in other sectors but using this method of generating funds for small businesses and start-ups is yet to see its peak. SEBI released its consultation paper to provide a regulatory framework for this new evolving method, but it failed to take off the burden from early-stage businesses seeking funds, the framework is more investor-concentrated rather than business-friendly. However, this method is much more simple compared to other routes of investment.
While opting for the crowdfunding method of raising capital a business should first investigate the platform on which it plans to set a crowdfunding campaign and protect itself from scams. A start-up or small business must go through the platform’s policies thoroughly and should also confirm that the platform is within the eligibility criteria of SEBI.
Lastly, Crowdfunding is an unconventional but effective tool for raising funds. India is now the third largest country having start-ups, therefore in the future, we will see more growth in crowdfunding and it will be the more practised route of raising funds.
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This article was written by Srija Singh, a student at Amity Law School, Noida. This article discusses corn laws along with their origin and repercussions. The author has also discussed how and why it was repealed.
It has been published by Rachit Garg.
Table of Contents
Introduction
The revocation of Britain’s Sludge Laws in 1846, one of the most important profitable policy opinions of the nineteenth century, has long conspired and puzzled political scientists, chroniclers, and economists. Why would a Conservative High Minister act against his own party’s claims? The Rightists formed their government in 1841 with a strong commitment to defending husbandry. A year later, Prime Minister Sir Robert Peel was in charge of repealing the protectionist Sludge Laws, violating party beliefs and undermining the economic interests of land-keeping. Only a third of Conservative members of Parliament supported the abandonment of the legislation, and within a month of its repeal, Peel’s government fell. The Rightists remained out of control for decades. In this article, we will discuss the Corn Law and how it originated, and why it was repealed.
What is Corn Laws
The word “corn” is generally (but far from widely) held to mean the dominant original cereal crop. In the United Kingdom (UK), “corn” means either wheat or all traditional cereal crops (wheat, barley, oats, etc.). The Corn Laws were enacted in the United Kingdom between 1815 and 1846, imposing limits and duties on imported grain. They were intended to raise grain prices to help independent directors. The policies raised food costs and drew criticism from civic groups with far less political influence than in rural Britain. The Corn Laws had set up high import fees, making it prohibitively expensive to import garbage from other countries, even when food inventories were low. Conservative renters supported the measure, but it was opposed by Whig manufacturers (a member or supporter of a major British political group of the late 17th and early 19th centuries seeking to limit the royal authority and increase parliamentary power and workers). The Anti-Corn Law League was successful in transforming popular and elite opposition to the legislation into a huge, civil, middle-class moral movement with a romantic ideal.
The first two years of Irish scarcity, from 1845 to 1852, were marked by a significant lack of new food inventories. Sir Robert Peel, a conservative, was able to call off the war with the backing of the Whigs in Parliament, defeating the objections of most of his party.
“Corn” referred to any grain that needed ground, notably wheat. The Importation Act of 1815 enacted the laws which were repealed by the Importation Act of 1846. The statutes were sometimes seen as exemplifications of British mercantilism.
Food prices were profitable by-products. The price of grain was related to the price of the most essential primary food, chuck, and the worker spent a sizable part of his stipend on the chuck.
The result was a political schism between co-proprietors (a long-established class that was disproportionately represented in Parliament) and the growing class of manufacturers and fake employees (who were under-represented). The former demanded that their husbandry profits be maximized by raising the price at which their grain could be sold. The goal was to maximize profits by breaking the stipend they supplied to their plant workers; yet men could not work in the factories if a plant pay envelope was not enough to feed them and their families; so, high grain prices kept factory stipends high as well.
Origin of Corn Laws
In 1813, a House of Commons Committee vowed to ban foreign-produced grain until the price of domestically grown muck reached eighty shillings per quarter. The political economist Thomas Malthus thought this was an acceptable price and that relying on imported maize would be catastrophic for Britain because fewer charges would reduce sloggers’ stipends and manufacturers would lose money due to property owners and growers’ loss of bargaining strength. Nonetheless, David Ricardo believed in free trade, believing that Britain might make better use of its resources. Sludge prices ceased with the outbreak of peace in 1814, and Lord Liverpool’s Tory administration passed the 1815 Corn Law. This culminated in major riots in London as well as the Manchester Peterloo Massacre. In 1820, Thomas Tooke’s merchandisers’ petition was brought to the Commons, asking for free trade and the elimination of protective tariffs. Lord Liverpool said that he supported free trade but that the complex restrictions made it difficult to curb protectionist policies.
William Huskisson, President of the Board of Commerce, wrote the Commons Committee report in 1821 asking for a return to the “basically open” trade of 1815. The Importation Act of 1822 said that sludge might be imported if the price of domestically obtained sludge reached eighty shillings per quarter. Still, it could not be imported if the price fell below seventy shillings per quarter. The sludge price never reached eighty shillings between the passage of this Act and 1828. Property owners rejected Huskisson’s sliding scale idea in 1827, so Huskisson and the interim Prime Minister, the Duke of Wellington, devised a new sliding scale for the Corn Importation Act of 1828. When the price of residential sludge was fifty-two shillings and a quarter or less, the duty was thirty-four shillings and eight pence, reduced to one shilling when the price reached seventy-three shillings.
In 1820, Thomas Tooke presented the merchants’ petition to the House of Commons, requesting free trade and the repeal of protective tariffs. In 1821, the President of the Board of Commerce, William Huskisson, published a Commons Committee report calling for a response to the 1815 years of “almost unrestricted” trade. The Whig administrations who controlled from 1830 until 1941 chose not to repeal the sludge laws. Sir Robert Peel became Conservative Prime Minister in 1841, and for the first time, Richard Cobden, a famous free trader, was branded. Peel had studied Adam Smith’s workshop, David Hume’s workshop, and Ricardo’s workshop, and in 1839 said, “I have read all that has been published by the gravest experts on political frugality touching rent, stipend, taxes, and tithes.” In 1842, he altered the sliding tariff system, lowering the highest tariff rate to twenty shillings if the price fell to fifty-one shillings or less.
In 1838, the Thani-Corn Law League began secretly working for repeal. They paid for pens like William Cooke Taylor to explore their cause in northern England’s manufacturing districts. Cook Taylor was an anti-Corn Law propagandist who published several works, including the Natural History of Society (1841), Notes of a Tour in the Manufacturing Districts of Lancashire (1842), and Factories and the Factory System (1844). Cobden and the members of the anti-Corn Law League believed that inexpensive food meant an advance stipend, and Cobden praised a worker.
When nourishments are high, people have so little to pay for them that they have little or nothing left to buy clothes with; and when they have little to buy clothes with, there are many clothes sold; and when there are many clothes sold, there are too many to vend, they are truly cheap; and when they are truly cheap, there can be no important paid for making them, and as a result, the manufacturing working man’s paycheck is reduced. This raises the demand for them, and as the demand falls, the price rises, allowing the working man to receive an advanced paycheck and the master to earn more.
Repeal of Corn Laws
Government regulation of exports and the significance of sludge was well proved long before the nineteenth century (Barnes 1930). The Sludge Laws of the seventeenth and eighteenth centuries were intended to prevent “grain from living at any time, either so dear that the poor cannot survive or so cheap that the farmer cannot live by growing it.” The Napoleonic Wars marked the beginning of a new era in the history of the Sludge Laws. Agriculturalists had high grain prices throughout the war, but prices fell sharply after the conflict. In response, Parliament passed the Corn Law of 1815, which allowed free entrance when the price of sludge was greater than eighty shillings per quarter and prohibited entry when the price was less than 80 shillings. Some argue that, unlike earlier sludge laws, this new regulation was protective.
Others maintain that fear of failure still drives government decisions. Rapid population increase and reliance on alien sewage are alleged to have justified a tone-acceptability policy based on public security agencies. A third argument for the protection measure is that it was rushed through by the government to compensate for the support of renters as it rose to pay its war debt. The 1815 statute had two initial flaws, namely, it earned no government benefits from protection and it was overly stringent.
Others maintain that fear of failure still drives government decisions. Rapid population increase and reliance on alien sewage are alleged to have justified a tone-acceptability policy based on public security agencies. A third argument for the protection measure is that it was rushed through by the government to compensate for the support of renters as it rose to pay its war debt. The 1815 statute had two initial flaws: it earned no government benefit from protection, and it was overly stringent. A Select Committee of the House of Commons investigated public solicitations for torture in response to the 1815 law, and its report was published.
The fixed duty prevented the price creation issue that any sneaky scale would face. Foreign Secretary George Canning and others were concerned that a permanent obligation would limit flexibility in times of failure, increasing the chance that the government would be forced to postpone the duty during comparable periods. Other politicians supported the sliding scale because, in contrast to the fixed duty espoused by “cold-blooded political economists,” it was built on “expertise” rather than “proposition.” Huskisson’s definition of the sneaking scale was that it healed the worst point of 1815—severity. The Agronomists rejected Huskisson’s 1827 Bill because his pivot point of sixty shillings (from which the duty of twenty shillings would traditionally descend) would give them inadequate protection.
When drafting the 1827 law, Huskisson and the Duke of Wellington (who became Prime Minister in 1828) became entangled in an abecedarian debate. The former looked to promote freer sludge trade, while the latter tried to integrate agricultural protection. In 1828, Huskisson and Wellington agreed on a sliding-scale tariff on sludge, such that as the price rose, so did the levy. Fay envisioned the 1828 sliding scale as “Huskisson’s putrefied sliding scale.” Huskisson proposed a pivot point of 60 or 62 shillings, but the 1828 Act, set it at 66 shillings.
The 1828 scale differed from Huskisson in that there were significant jumps in the scale(13 shillings, eight pence, duty for sixty-nine shillings, and a 1-shilling duty for seventy-three shillings). When prices were high, speculators took advantage of the rapid-fire descent of the scale, postponing transactions until the cost increased by 1 or 2 shillings to avoid paying tariffs. Despite this problem, the 1828 laws lasted until Peel implemented a reasonable sliding scale in 1842.
The population of the United Kingdom increased from 12.6 million to eighteen million between 1811 and 1841, making British growers less capable of supplying domestic demand. The rise of British industrial assiduity and import commerce, notably in fabrics, was another factor that proved fatal to the sludge regulations. Furthermore, when the early 1830s false drug and import crush faded, business people grew increasingly vociferous about the agronomist’s “illegal” protection.
The league machine
The Anti-Corn Law League was the first ultramodern and public-position political pressure group in the United Kingdom. The Anti-Corn Law League was founded in London in 1836, but by 1838, it had moved to Manchester. The League is described by historians as “the most emotive of nineteenth-century lobbying groups, exerting a distinct influence on the repeal of the Penal Laws in 1846.” The League’s civic propaganda and electoral enrollment juggernauts were two critical components of its functional strategy. Subscriptions to the League were significant.
It kept a small army of workers and speakers on the road, distributing numerous publications (most famously, the infamous anti-Corn Law Circular) and giving hundreds of speeches on the glories of free trade and the immoralities of protection. The League used the enrollment push to replace protectionist co-owners in Parliament with proponents of free trade. Following free traders’ electoral setbacks in 1841 and 1842, the League concentrated its energy and resources on achieving free-trade maturity in the approaching general election in 1848. Ultimately, its founders recommended a political strategy that included interfering with name registries and exploiting propaganda bias by being choosers. In preparation for the 1848 election, the League aimed to add as many free merchants as possible while removing as many protectionists as possible from these lists.
The Chartist movement presented the League with an alternative challenge. The Chartists were a well-organized working-class movement that fought for administrative reform, emphasizing the importance of reform encompassing the full social and political spectrum. The League, on the other hand, ran a single-issue campaign to secure repeal. Chartists and League clash regularly degenerated into open enmity and violence, with Chartists blaming Leaguers for being serpents to the reform cause and Leaguers condemning Chartists of expecting unachievable reforms and so destroying their targeted strategy.
Repercussions of Corn Laws
In the two decades following 1850, the price of sludge was fifty-two shillings. Because of the advent of faster transportation by rail and steamboat, as well as the modernization of the Agrarian Ministry, the champaign granges of North America were suited for exporting massive amounts of low muck. Apart from the United Kingdom and Belgium, every sludge-producing country expected tariff increases in response. The price of English-grown sludge in 1877 was fifty-six shillings, nine pence a quarter, but it never fell below ten shillings for the rest of the nineteenth century.
In 1878, the cost was decreased to forty-six shillings and five pence. By 1885, sludge-raising land had shrunk by a million acres, and the sludge price had dropped to thirty-one shillings a quarter in 1886. Britain’s dependency on imported grain was 2% in the 1830s, 24% in the 1860s, 45 percent in the 1880s, and 65 percent in the 1890s. The 1881 story reported a decline in agrarian sloggers of 250 from 1871, but a rise of 496 in local sloggers. Many of these were originally ranch workers who moved to cities to find work, even though agricultural loggers earn the best wages in Europe. The influx of new metro slaves was a key component in the rise of the Industrial Revolution, which was also a factor in the rise of slavery.
Conclusion
Because of these extreme restrictions and consequent taxes on any grain entering the country, the British could only buy grain from within their borders. This increased the price of chicken as well as the overall cost of living. The Corn Laws decreased the British people’s discretionary money in general, as well as their total profitable expansion. Because the working class could not travel anywhere except for food, they stopped buying manufactured goods, reducing leading manufacturing gains. Despite this, the sludge laws aided property owners. Despite making up only 3% of the population then, rich lessees had the rare opportunity to bounce. As a result, the sludge laws disadvantaged the working class while helping the wealthy elite. For a long time, the affluent in Congress were unconcerned about the suffering of the lower class, which is why these restrictions remained for so long before Britain fought for a more flexible trade policy like the one we are presently seeing. heard screams because of the suffering of the period, but it took some time for the true association to address the concerns fairly. In 1832, the right to bounce was granted to a major part of the trafficker class, resulting in the laws.
FAQ- Frequently Asked Questions
Who did the corn laws benefit?
The beneficiaries of the Corn Laws were the nobility and other large landholders who owned the majority of profitable farmland.
Why were corn laws imposed?
This measure was intended to protect English farmers from cheap imports of grain following the end of the Napoleonic Wars.
This article is written by Daisy Jain, a law student at the Institute of Law, Nirma University. This article gives you an overview of Section 148 of Income Tax Act, 1961. It also talks about the reassessment considerations while issuing a notice under Section 148.
It has been published by Rachit Garg.
Table of Contents
Introduction
The Income Tax Department (IT) has the authority to review an income tax return previously filed by any individual under Section 147 of the Income Tax Act, 1961 (IT Act or ITA). By issuing a notice under Section 148 for income avoiding assessment, the Assessing Officer may accept your ITR for reassessment considerations if such stated circumstances are met. Let’s talk more about the assessment and reassessment notices issued pursuant to Section 148 of the Income Tax Act. According to Section 148 of the Income Tax Act, if a person’s taxable income has evaded the IT department’s assessment, an Assessing Officer will issue a notice to provide the appropriate documentation to demonstrate that they are in compliance with tax laws. The essential features of this Section of the ITA are summarised in this article. So, if you’re interested in learning more, keep reading!
Understanding Section 148 of Income Tax Act, 1961
Being a diligent citizen, you paid your taxes and are now at ease. Nevertheless, there’s a likelihood you could not have mentioned all of your sources of income. Akin to this, a small percentage of people can purposefully decide not to reveal all of their incomes, minimize their taxes, and therefore dodge paying taxes. The law has put in place the necessary safeguards to monitor such instances. One such safeguard provided by our legislators is Section 148 of the Income Tax Act, 1961.
The IT department must notify any income tax computation that hasn’t been recalculated or reassessed in accordance with Section 148 of the IT Act. The assessee would be contacted by an Assessing Officer, according to this provision. The issuance of notification in cases where any income has avoided recomputation or reassessment is covered under this Section. According to this Section, an Assessing Officer must inform the concerned assessee by providing him or her with a notice requesting the following information:
His/her tax returns for income.
The income tax returns of a person other than the questioned assessee who was found to be liable for assessment under this Act in the year preceding the pertinent assessment year.
Either within a 30-day notice period or within a time frame that has been expressly indicated in the Assessing Officer’s notice, the assessee will be expected to submit his or her income returns. The assessee will be expected to produce the income returns of any other assessable persons in the manner and format that have been authorized and confirmed in accordance with the Act’s provisions, as well as any other pertinent information that may be expected to be supplied. The Assessing Officer would explain his reasoning before sending any notification to the concerned assessee.
Any taxable income that may have slipped unnoticed and has not been assessed in accordance with the specified standards of the Income Tax Act may be assessed or reassessed by an Assessing Officer under Section 148. The Assessing Officer may exercise his or her right to conduct an income assessment or reassessment in accordance with the rules outlined in Sections 147 through 153 if there is any reason to believe that an assessee’s taxable income may have escaped assessment.
Who can issue a notice under Section 148 of Income Tax Act
The following are the factors that determine the eligibility criteria for issuing a notice under Section 148 of the Income Tax Act, 1961:
An Assessing Officer with a level lower than a Deputy Commissioner is ineligible to give a taxpayer a notice. This is consistent with the clause listed in Section 151(1). Additionally, it is referenced in Section 147 or Section 143(3). However, if a Joint Commissioner finds that an Assessing Officer’s justification is credible, the AO may notify the concerned taxpayer.
After four years have passed since the end of the intended assessment year, an Assessing Officer is not permitted to issue a notice. Nevertheless, if a Principal Chief Commissioner decides that the justifications offered by an AO are sufficient for issuing a notice, an Assessing Officer may send a notice to the taxpayer.
Principal Chief Commissioner, Principal Commissioner, or Joint Commissioner are not permitted to submit a notification on their own in either scenario (1) or (2), even though they believe the justifications gathered by an AO to be sufficient for doing so.
Timeframe to issue a notice under Section 148 of Income Tax Act
Keep in mind that a notice of tax evasion might be given to a taxpayer within the following timeframe:
In accordance with Section 149, an Assessing Officer may send a notice within 4 years after the end of an assessment year in question if a person fails to report a taxable income of 1,00,000 to the IRS.
Re-assessment is still acceptable up to three years after the end of the assessment year in concern if a taxpayer avoids a taxable income of over one million rupees. On the basis of the rules outlined in Section 151, a representative will issue this notice.
If a person receives income from resources outside of India, an assessment is still legitimate for up to 16 years.
An AO cannot send a notification to a taxpayer in accordance with Section 147 if an assessment or reassessment has been finished relying on Section 147 or Section 143(3) and 4 years have passed since the end of the assessment year in concern. However, take note that an Officer has the following authority to issue a notice:
A taxpayer skips filing their income tax returns in accordance with Section 139, 148, or 142(1).
A person lacks to provide factual information required for determining the tax liability.
Reasons for issuing a notice under Section 148 of Income Tax Act
If the Assessing Officer has cause to think that your income that was subject to tax has evaded assessment, you may get a notification under Section 148. If he has evidence to back up his claims, he will put them in writing and issue you a notice in accordance with section 148. The AO cannot just choose to reopen your case without providing any justification.
The AO cannot give you a notice for the reassessment of the identical documents if you provided accurate information and documents during the initial assessment. There must be some fresh evidence—new documents or facts—demonstrating that income has evaded taxation. He may initiate legal proceedings against you under Sections 147 and 148 if fresh information surfaces that indicates you have hidden some money.
The Assessing Officer shall mandatorily record and give reasons why he or she believes the assessee is evading the assessment of income pursuant to the issuing of any notice to an assessee under Section 148.
If there is no evidence or information to support the assertion that the assessee has disguised a significant amount of income or that the assessee needs to be further examined, the statement will not be taken into consideration as a valid basis to send a notice to the assessee under Section 148. Such justifications will be characterized as imprecise and vague.
The Assessing Officer cannot serve a notice to an assessee relying only on a disagreement in viewpoint or perception until new and pertinent information or data is given to the Assessing Officer. If an assessee has revealed all pertinent data related to his or her taxable income as well as revealed and given fact-based data, which has resulted in the finalisation of his or her assessment or reassessment, the Assessing Officer will not have cause to assume or sincerely doubt the assessee in the inquiry.
Relying on documentation and actual facts that the assessee has already submitted over the course of the assessment, the Assessing Officer cannot merely make a fresh judgement and send a notice to the assessee. Only after the Assessing Officer has been given additional information or documentation can a notice be issued.
The Assessing Officer, however, will have full power to send a notice to the infringing assessee under Section 147/148 if any data or specifics have been either covered up or not revealed by the assessee in an inquiry and such an intervention has come to the Assessing Officer’s notice at a later stage.
What to do if you have been issued a notice under Section 148 of Income Tax Act
The process that should be followed after a notice has been given under Section 148 has been set forth by the Supreme Court. The following are the stages:
The assessee may submit a new return with the actual income in accordance with the notification. Income may be equal to or greater than what the assessee reported in the initial return.
The assessee may write to the Assessing Officer and request that the returns submitted in accordance with Section 139(1) be regarded as returns submitted in response to the Section 148(1) notice.
The assessee may request justification for the issuance of the notice under section 148 after the returns have been submitted. The assessment proceedings and the finalised assessment judgment may be invalidated if such justifications are not given (CIT v. Jagat Talkies Distributors, 2017).
The assessee also has the option to challenge the notice, and the Assessing Officer is required by spoken order to resolve those concerns (Simaben Vinod Rai Ravani v. ITO, 2017).
If the Assessing Officer rejects the assessee’s concerns, he must wait four weeks before moving forward to give the assessee time to take corrective steps and dispute the denial decision.
The assessee may submit an application under Section 144A to the additional/joint commissioner if the Assessing Officer does not resolve the concerns and initiate assessment processes.
The assessee may participate in the assessment process without disagreement and may file a review against the assessment order with the Commission (Appeals).
Replying to notice under Section 148 of Income Tax Act
The most important thing to remember is not to take notice carelessly. Please abide by the following instructions if you get a notice under Section 148:
Look at the notice to see if there are any grounds for belief that the Assessing Officer documented when issuing the notice in accordance with section 148. You could ask the Assessing Officer to submit a copy of the documented justifications if the notice does not include them.
If you have good cause to accept what the Assessing Officer reported, file the return as soon as possible. Submit the copy to the Assessing Officer in the previously filed case.
If you are submitting an income tax return in reply to a notification under Section 148, make sure you do your thorough research and accurately state all of your expenses and earnings. If you fail to accurately disclose any of your revenue, it could lead to needless fines.
You may contest the legitimacy of such a notice before the Assessing Officer or higher officials if you think that the notice was not formally charged or that the reasons given by the Assessing Officer for initiating the assessment under Section 147 are incorrect.
The Court would stop the assessment process if you won your case. Nevertheless, the evaluating Officer may move forward with the reassessment if the verdict is not in your favour.
Conclusion
Thus, it can be inferred that in cases where an income has eluded re-computation or assessment, the IT Department may send a notification in accordance with Section 148 of the Income Tax Act. The Assessing Officer must, nevertheless, have verifiable proof that the assessee avoided having their income for the relevant assessment year assessed.
Frequently Asked Questions
What is Section 148 of Income Tax Act reassessment notice?
If an income escaping assessment is made on an already filed income tax return and it satisfies the requirements, it is known as a Section 148 reassessment notification.
Is it possible to challenge a Section 148 notice of reassessment of income tax?
If you are confident that the justifications given are false, you may question the reliability of an income tax reassessment notice.
What is the deadline for reopening Section 148 Income Tax reassessment cases?
Following the Union Budget of 2021, the window for reopening Section 148 income tax reassessment cases has been reduced from six years to three years for any income exceeding Rs. 50 lakh.
What occurs if a tax reassessment is found to be incorrect?
If you successfully contest the legality of an income tax reassessment under Section 148, the Court will halt any legal action taken against you.
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 Vaishnavi Peddibhotla currently pursuing PG Diploma in Media Laws (22-23) from Nalsar University, Hyderabad. This article has been edited by Ojuswi (Associate, Lawsikho).
Weddings in India are a celebration of two people’s spiritual union and, in general, a lavish occasion for the guests. The ceremonies are lavishly staged, with lavish dishes, vibrant colours, and musical processions. Western influences have impacted traditional Indian weddings in a big way with the advent of liberalisation and globalisation in the 1990s, and as a result, the extensive use of music, pop music, or film soundtracks in non-traditional parts of wedding celebrations has become commonplace. In today’s Indian weddings, sangeet is the most important element. It’s a moment when a complete family is dancing to the music before the wedding day. But the question is whether this delight comes at the cost of copyright infringement.
Weddings ceremonies & copyright infringements
Regardless of the type of home, sangeet and mehndi have acquired popularity in India. What changes in the scope of the festivities?
The Copyright Act of 1957 states in Section 51(a)(i) that “any person, who does anything for which the owner of the copyright has been granted the exclusive right to do so by this Act, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act is considered to be infringing the owner’s copyright.” Regardless of whether the institution is commercial or not, a requisite licence must be obtained in order to play pre-recorded music in public areas.
This clause serves as a safety net for owners who, among other things, incur financial damages when their work is illegally aired or performed without their consent. However, the Act does not grant the owner of a musical work total rights by giving some required exclusions in cases when the infringement is deemed to be harmless. Under Section 52 (1) (za) “The performance of a literary, dramatic, or musical work, or the communication to the public of such a work or of a sound recording in the course of any bona fide religious ceremony or an official ceremony held by the Central Government, the State Government, or any local authority, is not considered an infringement”. For a better comprehension of the provision, marriage procession and its attendant social celebrations are included within the scope of “religious rituals”.
Fair use doctrine
The fair use exemption was released in Article 9, section 2 of the Berne Convention, which was eventually popularised as the Three-Step Test. In summary, the test states that it is up to individual legislatures to authorise the reproduction of specific works (a) in limited circumstances, (b) where reproduction does not conflict with regular exploitation of the work, and (c) does not unreasonably violate the author’s legitimate interests.
Protection of fair use is established under section 52(1) of the Indian Copyright Act, 1957, as revised in 2012, which exempts certain acts from the ambit of copyright infringement. While most of section 52(1)’s provisions apply to all copyrightable works, some are limited to specific works. For example, section 52(1)(k) pertains to playing sound recordings in an enclosed room or in a non-profit club; section 52(1)(z) pertains to sound recording storage; and section 52(1) (za) pertains to performance in a religious ceremony, a government ceremony, or marriages.
Expert appointed to assist in fair use of sound recordings
In the recent case of Phonographic Performance Limited (PPL) and Lookpart Exhibitions And Events, Private Limited, Justice Pratibha Singh of the Delhi High Court has requested an expert opinion from Professor Arul George Scaria on the legislative history and scope of Section 52(1) (za) of the Copyright Act. The precise topic is whether or not music used in marriage ceremonies and social gatherings is excluded under Section 52(1) (za), and whether or not such usage is considered fair use.
In the current lawsuit, the plaintiff, Phonographic Performance Limited, engaged in the business of granting licences for the public performance and communication to the general populace of sound recordings premised on assignments that had been conferred to it by its member record labels, the copyright holders of the audio recordings. While Defendant, Lookpart Exhibitions and Events Pvt. Ltd., is an organisation that manages occasions and offers services, such as DJ services for other social events like weddings. While Defendant argued that it was not necessary to do so, Plaintiff requested an interim injunction in the current lawsuit, asserting that Defendant should have gotten a licence for playing music at various social gatherings that are handled and arranged at commercial venues.
At the initial hearing of the injunction request judge refused to grant an ad-interim injunction in favour of PPL at this time and instead gave the parties time to finish their pleadings in exchange for the defendant depositing a sum of Rs. 1,000,000 with the Registrar General of the High Court in a fixed deposit. The court has directed the expert to provide a written note of arguments on the issue, instructing him to research the provision’s historical origins as well as case law from India and abroad on the subject of fair usage as well as fair treatment of sound recordings.
The matter was taken up on 06th July 2022 a request for intervention under Order I Rule 8A CPC made by Novex Communications Pvt. Ltd. and The Indian Performing Right Society Limited (IPRS), who asserts ownership of a large repertoire of sound recordings and several underlying works respectively. The applicant thus asserts that the potential decision would have a direct impact on this Court in the current lawsuit regarding the issue of infringement exceptions as envisioned by the Act’s Section 52(1)(za). The applicant is allowed to participate in the current lawsuit as an interested party and was asked to file the affidavit within two weeks.
Following the prior ruling dated May 11th, 2022, the Expert, Dr Arul George Scaria, has submitted his written arguments and has virtually joined the hearing. Lawyers are allowed to give their oral arguments on the legal issue brought up in the current case on the hearing date after that. The Expert will virtually join the proceedings on the following date to support the Court. The matter is now listed to come up on 22nd August 2022.
Judicial stand
This matter is ambiguous because of the difference of opinion of the Indian Judiciary in this matter.
In the case of Phonographic Performance v. State of Punjab, the Hon’ble Punjab and Haryana High Court held that reproducing a sound recording without a licence from the copyright society in any event (including a marriage ceremony) would be a violation of copyright, and the court further proceeds to narrowly interpret the words “in the course of any bona fide religious ceremony (marriage)” stated as under:
“A sound reproduction by a DJ performing at such an event is surely a function that is connected to marriage. It is not as if a DJ’s performance amounts to conducting the marriage. Marriage is definitely different from the functions connected to the marriage and the tariff regime applies to performances at such functions even if it has a religious overtone.”
Furthermore, in the case of Devendra Kumar Ramchandra Dwivedi v. State of Gujarat and Ors., as per the Hon’ble Gujarat High Court, the fundamental aim of Section 52(1) of the Copyright Act, 1957 is to exempt the live performances of such creations since there is no commercial objective, no admission charge, and/or admission proceeds are used solely for academic, religious, or charity reasons and not for private monetary benefit. The fair or honest usage doctrine is the most important limitation on a copyright owner’s exclusive rights:
“The Central Government State Government or any local authority can arrange the performance of a literary, dramatic or musical work, officially which will not amount to infringement of copyright or also in connection with a bonafide religious ceremony like Navratri Pooja, Arati, etc. so also marriage procession or other social festivities associated with a marriage, would not amount to infringement of copyright.”
In a sense, the Hon’ble Court has confined the scope of Section 52(1)(za) to the Central Government, State Governments, and Local Authorities, as well as non-commercial purposes.
Notification regarding licence
However, the aforementioned judgments were rendered prior to the Registrar of Copyright’s notification of August 27, 2019, which resolved these issues. Copyright societies have stopped opposing the use of sound recordings in wedding ceremonies, according to the Notification. Other occasions, such as Mehndi, Sangeet, engagement, wedding anniversary, and reception parties, are still ambiguous, and according to Copyright organisations, permission is necessary for utilising sound recordings in such activities.
In light of the ongoing uncertainty and disagreements between copyright societies and hotels, banquets, and other venues, a legislative amendment should be brought to bring some clarity on the scope of use of sound recordings in wedding festivities
After considering the foregoing provisions, the Registrar of Copyright clarified under Section 52(1) (za) of the Copyright Act, 1957, that playing of sound recordings during religious ceremonies, including marriage procession and other festivities associated with marriage, is permitted and such usage does not constitute of copyright infringement, and thus no licence is required.
As a result, the government has emphasised that using sound recordings for weddings and similar activities is not an infringing activity under Section 52 of the Act and that no licence from the Copyright Owner or the Copyright Society is required. The public notice clarifies the situation and attempts to clear up any ambiguity around the clause. However, this explanation raises another question: would the use of the sound recording in the course of any wedding or similar festivities held in a hotel or commercial premises necessitate obtaining a licence? A reference to Section 52(k) is made in order to grasp the intent underlying this query:
“(k) the causing of a recording to be heard in public by utilising it,-
(i) in an enclosed room or hall meant for the common use of residents in any residential premises (not being a hotel or similar commercial establishment) as part of the amenities provided exclusively or mainly for residents therein or
(ii) as part of the activities of a club or similar organisation which is not established or conducted for profit;”
In light of section 52(k), the recording to be played in the general populace must be done in a confined setting or auditorium for the evident use of residents, or as part of the celebrations of a club or similar arrangement, provided that it is not a hotel, commercial institution, or for-profit institution. Hotels and other business places, such as banquet halls, are thus free from the idea of a legitimate act of recordings played in public.
As a result, the language in the notice emphasising that no licence is necessary for using music recordings for weddings as well as associated celebrations doesn’t completely resolve the disputed matter. Despite the notice explicitly stating that sound recording is protected under Section 52 for weddings and associated festivities, it is unclear if this protection will also apply to weddings and related functions held in a hotel or other connected commercial institution.
In Novex Communications Private Limited v. Union of India & Anr, numerous sound recordings’ copyrights are owned by the petitioner-company, Novex Communications Private Limited (Novex), which is in the business of issuing permits for the use of its sound recordings in public. Novex submitted the current writ petition contesting the legality of a public notice from August 27, 2019, published a notice that the Registrar of Copyrights claimed to interpret Section 52(1)(za), and determined that no permission was necessary to be sought to the use of sound recordings during marriage-related activities.
In the current Writ Petition, Novex argued that the Registrar of Copyrights had overstepped his authority and entered the legislative realm, which is illegal, by interpreting or defining the scope of Section 52(1) (za) in the public notice. Additionally, Novex claimed that the public notice violated the Indian Constitution’s provisions because it interfered with its fundamental freedom to conduct business under Article 19(1)(g).
The P&H High Court ruled that “there could not be a general interpretation of the provision as stated in the public notice and that the question of whether specific acts would fall within the exempted categories listed under Section 52(1) of the Copyright Act, 1957 would have to be decided based on the facts of each case.”
It also ruled that the public notice did not state by what authority it was issued and could not revoke the copyright owner’s legal ability to bring civil or criminal legal action for copyright infringement. If the interpretation outlined in the public notice was followed, it could be abused by infamous individuals who would play sound recordings for profit in commercial spaces. The court also held that by relying on the interpretation, the police could refuse to prosecute similar cases of copyright infringement.
According to the Court’s ruling, Novex’s fundamental rights and safeguards under Article 19(1)(g) were also violated by the Public Notice, which was also published in breach of the theory of separation of powers. The public notice was revoked by the P&H High Court in light of the aforementioned conclusions.
International perspective
In this section, we will see the position of different countries regarding how they deal with the matter of licensing sound recording for wedding ceremonies and other functions.
Position in Italy
The simple performance of a song live or recorded in Italy entitles the performer to royalties in the form of Società Italianadegli Autori ed Editori (SIAE taxes), which must be paid to the copyright owner of the song regardless of who the artist is. Before the wedding day, a list of music or the music programme, known as the bordereau, must be given to the SIAE authorities, who will then determine the rate of royalties that must be paid. One receives a certificate stating that their bordereau and musicians are SIAE-approved after paying the SIAE levy and following specific SIAE requirements. Before the authority authorises any contract related to the wedding, the owners of Italian wedding venues demand this certificate.
Position in Philippines
In the Philippines, weddings are considered public occasions. It is a social gathering at which a large number of individuals, including the family’s closest social acquaintances as well as others from beyond the family’s typical circle, gather to celebrate the marriage of the bride and groom. The Sound Recording Rights Society, Inc. (SRRS) is a Philippine Collective Management Organisation (CMO) that offers licences for the commercial use of sound recordings held by its members. The society licences copyright-protected sound recordings for broadcasting, transmission, and public performance, as well as mechanical replication of sound recordings for digital storage.
Position in Australia
The owners of copyright in the music, lyrics, and sound recording must provide permission for music to be played in public. Certain copyright licences may already be in place with the couple’s wedding professional or venue. Music performances at weddings, on the other hand, are normally not open to the public, even whether they take place in a hotel, wedding hall, or restaurant because weddings are considered private occasions. Hymns or song lyrics are normally protected as literary works for the lyricist’s lifetime plus 70 years. Copyright will have lapsed if the author died before July 1, 1958. As a result, they can be freely utilised in many ancient hymns or songs. However, permission to reproduce the lyrics may be requested if the songwriter is still living.
Conclusion
The current public outcry over private parties recording and playing music has the potential to be constructively channelled. It is necessary to take measures to comprehend the nature of certain aspects of copyright law that are confusing or ineffective in practice. This can ensure that we have more effective and practical copyright laws, which will help our society as a whole have a brighter future. The recent judgement of the P & H High Court set aside the notice released by the government. This order is a major game-changing and can be seen as a positive step for the copyright owners however, the negative side of the order can be against the interest of the general public as they cannot use the sound recordings without acquiring a proper licence. The question that arises is if everyone can manage to afford to get the licences in India. Can this be practically possible? It has to be seen if the upcoming judgement by the Delhi High Court will align with the judgement of the P&H court or if the court may bring out a different angle that will strike a balance between upholding the primary objective of Copyright Law and the interest of the general public at large.
It would be noteworthy to see if the clauses can be interpreted in a way that balances the interests of all parties involved, especially with the Indian context in mind.
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This article is written by Parth Verma, a student of the School of Law, Christ University, Bengaluru. This article seeks to explain Section 202 CrPC, 1973 including its features, objectives, important case laws, and issues.
It has heen published by Rachit Garg.
Table of Contents
Introduction
There is a saying in criminal law that it is better to have ten guilty persons escape than one innocent suffer. This is the very objective of justice i.e., to ensure absolute fairness for all. It has been imbibed in the Code of Criminal Procedure, 1973. A person who is a victim of a criminal act can adopt various routes like approaching the police directly for getting a First Information Report (FIR) filed before them or making a complaint directly to the Judicial Magistrate in the court of competent jurisdiction. After taking cognizance of the offence, the police or Magistrate may undertake an investigation to ensure that proceedings take place quickly. At the same time, there is a need to ensure that the rights of the accused are also protected. Any step, whether issuing a summon or taking cognizance, needs to be taken responsibly. As stated under Section 202 of the Code of Criminal Procedure, 1973, the Magistrate can even postpone the issue of summons or warrants to look into the case. This article seeks to explain this section along with the issues that might arise in its application.
Process before invoking Section 202 CrPC
Before the application of Section 202 in any given case, there are certain prerequisites that are needed to be fulfilled which are as follows:
When a criminal act is committed against the person concerned, he/she has two routes to seek justice.
They can either approach the police and get an FIR (First Information Report) filed with them which shall then initiate the investigation process.
However, in the case of a non-cognizable offence, the above is not possible. In such a situation they can file a complaint before the Magistrate.
A complaint as defined under Section 2(d) of the Code of Criminal Procedure, 1973 refers to any allegation made in oral or writing by a known or unknown person, with a police report not included except in case of a non-cognizable offence. A complaint can not only be filed by the sufferer but by any other person as the concept of Locus Standi is diluted in criminal proceedings.
Upon receiving such a complaint, the Magistrate, if satisfied, can take cognizance of the offence under Section 190(1)(a) or dismiss the same under Section 203 of the Code.
At the same time, even before taking cognizance of the offence, the Magistrate can issue a search warrant under Section 93. The Magistrate can also order an investigation by police of the complete matter to be very sure before taking cognizance of the offence under Section 156(3) of this Code.
After taking cognizance of the offence, they are required to investigate the case by themselves by examining all the witnesses presented before them on oath. The substance of such interrogation and examination should be reduced to writing and be made readily available under Section 200 of the Code.
However, there can be several exceptions under which no investigation is required. A complaint made by any public servant or the Court under Section 195 won’t require any investigation. Further, if a case has been transferred from one court to another or if the police have investigated a case that turned out to be a non-cognizable offence, their investigation reports would become a complaint in itself.
To ensure that there is no issue on part of the complainant, Section 202 of the Code could come into the picture. In order to be very sure that the claims are genuine, the Magistrate can order a further investigation and postpone the process of issuing a summon or warrant to the accused. This section hence plays a vital role in a criminal proceeding to provide a fair opportunity to both parties.
This is the general procedure that is followed before going on to Section 202 for postponing the issue of the summon or arrest warrant to the accused. Its features and the related case laws would be discussed in the coming sections.
What is Section 202 CrPC
Section 202 of the Code of Criminal Procedure, 1973 primarily focuses on the postponing of the issue of process on the part of the Magistrate. In other words, a Magistrate, if he deems fit to carry out a further inquiry in a given case either by himself/herself or an investigation by the police, may postpone the issue of process. This Code primarily has the objective of ensuring that there is absolutely no issue or loophole in the case which might be exploited by either of the parties, thereby ensuring fair and equitable justice. Apart from that, there might be certain cases that might require deeper investigation than was thought before. Due to this, to obtain some more time for investigation, the issue of process could be postponed. The Magistrate might formally take evidence from the witnesses on oath as per the powers assigned to them. Only after a complaint has been filed before the Magistrate and he/she has taken cognizance of the case can this section be invoked.
Section 202 CrPC read with Section 192 CrPC
Section 192 of the Code mentions the process of making over a case from one Magistrate to another. The Chief Judicial Magistrate can take over the case to a subordinate Magistrate for any inquiry or trial after taking the requisite cognizance of the same. Any Magistrate, empowered by the Chief Judicial Magistrate, can take over the case for the inquiry or trial to any other competent Magistrate as well. This is an alternate route through which a complaint could be indirectly filed before a given Magistrate authorized by the Chief Judicial Magistrate. A complaint can be directly made to the Magistrate under Section 202 or can be referred to a Magistrate under Section 192 of the Code. Both these sections lay down the various routes or options through which any complaint can be filed before Judicial Magistrate.
Features of Section 202 CrPC
Post cognizance stage
The need for Section 202 arises after the Magistrate has taken cognizance of the offence. In other words, if the Magistrate doesn’t dismiss the case on the basis of the complaint and decides to further look into it, Section 202 could come into the picture.
Investigation
Under this section, the Magistrate has the power to investigate the specific matter of law kept for consideration under the complaint that they have received under Section 192 or Section 202. On the other hand, they can also instruct the police to carry out an investigation into the matter. The difference between the investigation by police under Sections 156(3) and 202 is that while in the former, the investigation has to be carried out from scratch regarding the entire matter, the scope of the investigation is narrow and very specific in the latter. Further, an investigation under Section 156(3) is carried out to find whether there is any material that prima facie could be used for issuing summons. The same investigation is not considered to be final and could be subjected to further scrutiny.
Postponement of issue
Under Section 202(1) of the Code of Criminal Procedure, 1973, the Magistrate upon receiving a complaint can certainly postpone the issue of the summon or the arrest warrant to the accused, and during this time period, they can either conduct the inquiry by themselves or direct the police to carry out the investigation. However, there are certain exceptions to it where they can’t order the investigation. In Section 202(1)(a), if the Magistrate is of the opinion that the case is exclusively triable by the Court of Session, there is no need for investigation. Further as per Section 202(1)(b), if the complaint has not been made by the Court, no investigation can take place, unless the complainant and the witness have been examined on oath under Section 200 of the Code. The basic purpose behind it is to be very sure of the allegations before taking any action against the accused.
Examination of witnesses
The Magistrate, if he deems fit, can take the evidence of the witnesses on oath as stated in Section 202(2) of the given Code. In those cases where the Magistrate is of the opinion that the offence which is being complained about is exclusively triable by the Court of Session, he/she can ask the complainant to present all the witnesses and subsequently examine them. However, for issuing summons to any person residing beyond the Magistrate’s jurisdiction, the Magistrate is compulsorily required to carry out the investigation, whether or not there are any sufficient grounds for proceeding.
Powers with the Magistrate
As per Section 202(3) of the Code, if the investigation under Section 202(1) has not been carried out by a police officer, the same power will get transferred to the Magistrate except for the fact that they will not be allowed to arrest the person without any warrant. In other words, the Magistrate shall obtain all the powers of the officer in charge of that police station.
No external intervention
As per this section, no person, not even the accused, is allowed to intervene in the process of investigation or inquiry. It is a function that is to be performed by the Magistrate and he is only going to be responsible for the investigation whether it is conducted personally by him or by police who are ordered to conduct the investigation by the Magistrate.
Objectives of Section 202 CrPC
While analyzing any criminal case, certain problems might arise. To be very sure while carrying out the investigation, this section could play a vital role. The basic objectives of this section are as follows:
The primary objective of this section is to provide the Magistrate with sufficient time to scrutinize and investigate the complaint filed by any person. Through this, they would be able to ensure that the person who has been alleged as the wrongdoer is prevented from facing any unnecessary or unjust action because of the frivolous or malicious complaint that is filed.
Another major objective of this section is to facilitate an investigation by the police after taking cognizance. After taking cognizance, the investigation would be more specific in nature thereby leading to more accurate findings. Hence, the possibility of the investigation reports being more accurate and reliable would also increase.
A Magistrate by himself can find out whether there is any material evidence to support the allegations made in the complaint by the person.
The Magistrate is also given the power to examine the witnesses on oath under Section 202. This could further help the Magistrate determine the direction of the criminal proceeding and accordingly dismiss the complaint or order for further investigation.
Under this section, there is no intervention by the accused in the process of inquiry. This helps in ensuring that the investigation is conducted fairly and in an unbiased manner to get accurate results, thereby ensuring fair justice.
These are some of the major objectives which this section aims to achieve. The responsibilities of both Magistrate and police are very high. Hence, they need to perform their roles with utmost honesty and without any bias.
Relevant judgements
Vadilal Panchal v. Dattaraya Dulaji Ghadigaonker and Anr (1960)
This case was among the very first cases in which the Supreme Court of India discussed the scope of Section 202 of the Code of Criminal Procedure, 1973. In this case, the respondent Vadilal Panchal openly fired at a mob on the road when they were pelting stones at passing cars and shouting slogans. This caused serious injuries to the appellant and he was sent to the hospital. An inquiry was conducted by the police and they came to a conclusion that Vadilal was justified in his action as it was for private defence. However, the Magistrate requested another inquiry under Section 202. The complaint was dismissed after which the appellant moved the High Court.
The Court in its judgment stated that the objective of Section 202 is to determine the truth or falsehood of the complaint in order to justify the issue of the process and to start the proceedings against the concerned person.
Chandra Deo Singh v. Prokash Chandra Bose (1963)
In this case, a First Information Report was filed by the plaintiff and others against the respondent, alleging that the respondent had committed a murder. However, the relative of the deceased filed a complaint before the court that the FIR was false and there were people other than the persons claimed in the FIR who committed the murder. He requested the Magistrate to investigate the complaint and carry out the inquiry.
There were several issues in the process of investigation. The Supreme Court of India, in this case, held that the basic objective of Section 202 of the Code is to remove any form of hesitation that might be there in the mind of the Magistrate and help them to form an opinion regarding whether they should proceed with a further investigation or dismiss the suit there and then. When there is direct evidence, however, available against the accused, a summons can be issued by the appropriate Magistrate.
Mohabbat Ali v. State of Uttar Pradesh (1984)
In this case, the complainant filed a complaint against the accused for committing dacoity. A police investigation was carried out and the reports were also prepared and duly submitted. After obtaining these reports, the Magistrate issued summons to the accused to stand for their trial. Such offences were exclusively triable by the Court of Session.
The Allahabad High Court, as a result, held in this case that since this case can be directly dealt with in the trial court, there was no power with the Magistrate to issue summons directly due to which this order is invalid. Under Section 202(2) of the Code, all the witnesses that the petitioner wanted to produce should have been appropriately examined and the order should only have been passed later by the Magistrate according to the evidence that he had provided.
KM Mathew v. State of Kerala (1991)
In this case, the appellant was alleged to be the accused in a complaint that had been filed by an advocate who was aggrieved by a news item that had been published in that newspaper. The Magistrate issued a summons to the appellant. The appellant requested the Magistrate to drop the proceedings contending that the complaint didn’t actually prove that he had edited or published that material. The proceedings were subsequently dropped and the advocate filed a special leave petition challenging the High Court’s decision.
In this case, the Supreme Court held that the Magistrate had the required powers to drop the complaint. The Court further went on to say that the Magistrate must be completely satisfied that there is sufficient ground to proceed with the investigation but that satisfaction is to be arrived at after conducting the inquiry under Sections 200 and 202 of the Code.
Lacunae in Section 202 CrPC
While this section can have various benefits as seen above, it also has certain limitations which should be considered for improving the Criminal Procedure in India. Some of these issues are as follows:
Delays in the issue of process
Since the issue of process is postponed under Section 202, it might be fair for the accused. However, if there is a situation of Res Ipsa Loquitur (the thing speaks for itself) on the part of the complainant through the severe injuries suffered, he/she shall be deprived of quick justice in such a situation. In other words, despite the injury and the person causing such injury being clearly known in the case, the injured party would be deprived of quick redressal. They are essentially stuck in a situation where they can be severely injured but can’t obtain any compensation for a longer period.
Discretionary
All the steps that have been provided in Section 202 of the Code can be carried out at the whims and fancies of the Magistrate. He/she has the power to decide whether the cognizance shall be taken and whether the case should be referred for further investigation or not. They can also easily decide whether the suit shall be dismissed or not. While they have so many responsibilities as well as the necessary authority, they aren’t accountable for their acts. Hence, their personal bias could enter and fair justice might not be provided.
Tedious examination process
While the examination of witnesses can be carried out by the Magistrate, the process can get very tedious at times. The complainant shall firstly be required to find all the eyewitnesses to the incident and present them before the Magistrate. The Magistrate would need to examine them and if it is inconclusive, could even dismiss the complaint. After such a long process as well, the efforts and time of both the complainant and the Magistrate can be redundant.
Redundant police investigation
Since the police are already required to investigate the matter before the cognizance is taken up for the matter by the Magistrate, doing it again after taking the cognizance of the complaint will be a mere redundant activity. Though the scope of the investigation would narrow down, another investigation, despite being more focused, would only lead to the same results, if the initial investigation had been carried out diligently. Hence, ordering a police investigation again would only be a wasteful and redundant activity.
Issue of process under Section 204 CrPC
Under Section 204 of this Code, the issue of the process can be carried out lawfully by the Magistrate. It is directly related to Section 202. If after carrying out the investigation under Section 202, the Magistrate is satisfied that there is sufficient ground for proceeding with the case, they can directly issue the process under Section 204 of the Code. In such a situation, they can either issue summons or an arrest warrant after taking cognizance of the case. However, there are several questions that might arise while dealing with both sections simultaneously. One of them is with respect to the jurisdiction of the person.
In the case ofSunil Todi v. State of Gujarat (2021), it had been held by the Court that in all those cases where the person who has been accused for some offences stays in a geographical region outside the Magistrate’s jurisdiction, they are mandatorily required to carry out the inquiry and registration under Section 202 of the Code.
The same was reaffirmed by the Allahabad High Court in an application filed by Ms. Geeta and four others challenging the summons issued under Section 406 of the Indian Penal Code. When the inquiry is not conducted in a suitable manner, the amendment brought to Section 202 of CrPC is going to absolutely frustrate.
In another case Adalat Prasad v. Rooplal Jindal(2004), an appeal was made against the decision of the Delhi High Court. The respondent had filed a complaint against the appellant for defrauding him as well as for misrepresentation. The accused was repeatedly issued summons due to which he moved the trial court and the judge eventually recalled the summons. Hence an appeal was filed before the High Court stating that the Magistrate didn’t have the power to recall the summons under Section 204 of the Code. The Court, in this case, held that if the Magistrate after contemplating the inquiry under Section 202 of the Code is satisfied that there is sufficient ground for going forward with the proceedings, they can issue the process under Section 204 of the Code. Further, they have all the due powers to postpone the issue of summons or to even recall the summon without any influence or intervention from any external force.
Conclusion
The criminal justice system in India is slowly becoming more and more outdated. This is both in terms of the fines as well as the entire procedure that is being followed. With an increasing number of criminal cases based on false evidence and complaints, there is a need to bring about certain changes in the current system. To ensure the same, the Code of Criminal Procedure, 1973 provides for various sections dealing with the different routes and steps that can be adopted by the Magistrate as well as the aggrieved party to obtain fair justice. Section 202 plays a vital role in ensuring fairness to even the accused and to keep him/her protected till the Magistrate is very sure to proceed with the action or the issue of summons.
Hence, it can be concluded that the existing provisions are very stringent but should be changed and updated from time to time for filling all the gaps. To realize the true potential of the Criminal Legal System, an effective balance is required to be achieved between the rights of the complainant and the accused.
Frequently asked questions (FAQs)
What is the role of a witness under CrPC?
The main role of a witness under CrPC is to testify and tell what they exactly know about any given situation. Whatever the witness states in a court is said to be a testimony. Under Section 202 of CrPC, the issue of process can be postponed for investigating witnesses on oath.
When is the strength of evidence in supporting the conviction determined?
The strength of evidence towards supporting the conviction of an individual is to be determined at the trial stage and not at the stage of inquiry as provided under Section 202 of the Code of Criminal Procedure, 1973.
Which Section is very closely related to Section 202 of the Code of Criminal Procedure, 1973?
Both Section 202 and Section 200 work in tandem with each other. Section 200 consists of a stage, only after which Section 202 could come into force. Under Section 200, the Magistrate could take cognizance of the complaint and examine the witnesses. After taking the necessary cognizance, the Magistrate under Section 202 can postpone the issue process to critically analyze the complaint.
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This article is written by Satyaki Deb, a LL.M. (IP) candidate from the Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur. This article provides an exhaustive overview of martial law and its related concepts from an analytical viewpoint.
It has been published by Rachit Garg.
Table of Contents
Introduction
In today’s modern world, where most countries in the world have become a welfare state from a police state, the term ‘martial law’ at times appears to be a relic of the past. Common public perception around the world about martial law is unfortunately pretty vague, because presently, only a miniscule of the most unfortunate people are cursed to live and survive under the heavy yoke of martial law.
In periods of peace, the civil authorities are in charge of the administration and other agencies of the state. The armed forces remain under the control of the civil administration in these periods of peace. But in times of armed rebellions, insurgencies, natural disasters and / or wars, when the civil machineries in the whole state or in a portion of the state fail to maintain law and order, then the armed forces are empowered to take control of the affected area. All civil administration becomes subordinate to the appointed (sometimes self-appointed) Martial Law Administrator (MLA), who is usually the military commander and he dictates the Martial Law Regulations (MLR) which contains the list of martial law offences and their punishments upon violations. The Martial Law Administrator virtually enjoys unlimited powers and can do almost anything to restore peace and order. This is when martial law is said to be in force.
What is martial law
Before delving into the details of what martial law is, let us first have a look at what the term ‘martial law’ means loosely to the common people. In general, the term ‘martial law’ signifies the following four systems of military authorities, viz-
i) Law for the governance of the armed forces of a state, which is called military law. This is a type of statutory law and is used to govern military personnel only, thus making it of little concern to the civilians.
ii) Law for the governance of conquered territories and affected regions at home state during times of war by military commanders as per established customs of public law.
iii) Law for the suppression of internal rebellions or armed insurgencies and this is perhaps the most significant form of martial law as this relates to maintenance of law and order and protection of life and property. This is the most significant form of martial law because herein the military forces do not remain subordinate to civil authorities and cross the constitutional limitations placed on civil authorities and their police forces in order to restore law and order.
iv) The fourth form of martial law is when a military commander does a military coup and topples the civilian government and assumes power. Instances of this form of martial law have been viewed in Pakistan, Bangladesh and other countries in the world.
Definition of martial law
According to Black’s Law Dictionary (8th ed. 2004, Pg-3092), the term ‘martial law’ has been defined as –“The law by which during wartime the army, instead of civil authority, governs the country because of a perceived need for military security or public safety. The military assumes control purportedly until civil authority can be restored.” It has been further defined as – “A body of firm, strictly enforced rules that are imposed because of a perception by the country’s rulers that civil government has failed, or might fail, to function. Martial law is usually imposed when the rulers foresee an invasion, insurrection, economic collapse, or other breakdown of the rulers’ desired social order.” Every country has a ruler or government, who is mostly democratically elected. Now, what this definition means is, at times when the law and order situation of the country breaks down because of external and /or internal factors or is in such a state that is unsuitable for the ruler or government, then in order to restore the former situation of law and order or peace in the country, the harsh and strict form of regime that is imposed upon the people of that country is called martial law.
Explanation of the term ‘martial law’ and its features
In present times, martial law is believed to be a common law concept and is more of a ‘necessary evil’ solution for situations of serious disorder and breakdown of civil machineries in a state or in some areas of a particular state. Martial law is actually based on the legal maxim ‘salus populi suprema est lex’which means ‘safety of the people is the supreme law’. It is based on the concept that when the civil authorities are unable to protect the people of the state, it becomes the duty of all loyal citizens, including the military forces, to employ necessary forces for the protection of the people and restore peace. Thus, martial law is a law of necessity where the necessity is an actual and factual one and there can be no general rule as to what degree of necessity warrants martial law. It can only be decided subjectively, on a case to case basis.
Since martial law becomes operative after the breakdown of civil authorities or in their absence, any civil authorities that continue to function during the operation of martial law act in subordination to the military commander’s will. For example, often civilians with judicial experience are appointed as court officers but they have to function at the pleasure and will of the MLA. The military commander in charge of the martial law enjoys summary powers and can deploy any degree of force for restoration of tranquillity in the affected areas under his control. The only check that may be there in the power of the military commander is the degree of emergency that warranted the imposition of martial law in the first place. In other words, based on the nature and character of the emergency, the military commander is expected to judge the degree of force he will be employing to restore law and order.
Some people prefer the term ‘martial rule’ and find it more apt than the term ‘martial law’. For example, Fairman, in his ‘The Law of Martial Rule (1930)’, argued that martial law is not a law, but more of a rule, because it is something that is indulged or allowed as a law. He further argued that martial law is not built on the edifice of settled principles but is built on the arbitrary will of the military general, that can vary from time to time as per his whims. So, according to Fairman and like minded people, the term ‘martial rule’ is a more accurate one compared to the term ‘martial law’. But this perspective is mostly considered incorrect. This is because when the military commander makes laws arbitrarily or otherwise, he is acting as the legislator. Moreover, during the imposition of martial law, separation of powers fades away and the Martial Law Administrator becomes the supreme legislator, supreme executive or executioner and supreme judiciary. Thus, whatever the military commander wants becomes the law, he uses the military powers to enforce that law and punishes those in violation of his law. The military commander mostly does this out of necessity to restore peace and as a last resort after civil machineries have failed or are on the verge of breakdown. So, even if the wishes of the military commander are called martial proclamations or military orders, in effect they are laws and for this reason, the term ‘martial law’ is preferred to the term ‘martial rule’. Only in places where military coups have taken place displacing a democratically elected government, the term ‘military rule’ becomes apt.
Origin of martial law
Like all common law, martial law too owes its origin to the English legal system. Initially, the term martial law was not in vogue. The term that was used in its place is ‘marshal law’ and the courts of law that dealt with this ‘marshal law’ were known as the ‘Courts of the Constable and Marshal’. These Courts of the Constable and Marshal enjoyed both civil and criminal jurisdictions and awarded punishments for every crime during times of war, whether it was committed within the English territories or outside the realm of English territories.
Statutorily, recognition was given to martial law during the reign of King Richard II, approximately at the end of the fourteenth century. But gradually, the English Parliament started opposing the wide powers of these Courts of the Constable and Marshal and started placing restraints upon them. An example of one such limitation placed upon these martial law courts can be found during the reign of King Henry VI in 1439, when power was stripped from these marshal law courts and the Common Law Courts of England were entrusted to deal with the power of punishing the deserters of the King’s army. Some of the instances when martial law was invoked in England can be briefly stated as follows:
Once in the reign of Henry VIII, during the suppression of the Pilgrimage of Grace in 1536 and 1537.
During the suppression of the Northern Rebellion of 1569 by Queen Elizabeth I.
King James I invoked martial law in 1617, 1620, 1624 and 1625.
King Charles I invoked martial law in 1626 and 1627.
According to various writings, the last tried case in a Marshal Court was in 1737.
Difference between martial law and military law
For a very long time, the two terms ‘martial law’ and ‘military law’ have been used synonymously. Until about the 1830s, this indiscriminate usage of these two terms in the same capacities continued. Perceptions started changing from the 1842 rebellion of Rhode Island, when the US government invoked martial law to restore law and order. This led to the landmark case of Luther v. Borden (1849)where the US Supreme Court held that “…the martial law is the suspension of the common law, for the purpose of giving summary powers to the military. Further, the insurrection constituted a state of war and the state may use its military power to put down an armed insurrection and the State was itself the final arbiter in such a decision…” Thus, in this precedent case, it became abundantly clear that the US Constitution sanctioned the use of martial law as the last solution when civil machineries of the State had collapsed or were on the verge of collapse. Other countries too accepted this interpretation of the term ‘martial law’ where it meant the use of the military to restore law and order in an area under emergency conditions. On the contrary, military laws and rules are statutory laws passed by the Parliament to govern the military forces both at times of peace and war. For example, The Army Act, 1950; The Army Rules, 1954 etc.
Martial law in India
Even a cursory reading of the previous segments of this article would have made clear by now that martial law is invoked when the civil machineries are unable to maintain the law and order of a particular area. Since India’s independence on 15th August, 1947, her citizens did not require to witness the imposition of martial law unlike the times of the British Raj. But the following segments of discussions will answer if there is any scope of martial law in India or not, whether imposition of martial law is legal in India or not, whether elements of martial law are already present in India or not and much more.
Habeas Corpus and martial law in India
The significance of the writ of Habeas Corpus can never be stressed enough. This writ, which is often described as the ‘first security of civil liberty’ is a great constitutional privilege. The writ of Habeas Corpus, when translated from Latin literally means ‘you have the body’. A Judge of a constitutional court like High Courts or the Supreme Court may issue this writ to any authority detaining a person and ask that authority to prove that the person was legally detained and thus this writ works as a prompt and effective remedy against illegal detention. Now, the question that arises is what happens when martial law is invoked? Will the writ of Habeas Corpus be still available then?
To answer this, a more detailed look into the concept of martial law is necessary. As mentioned before, martial law is invoked when the civil machineries have broken down or are on the verge of a breakdown. Now, when there is no law and order in place and the civil machineries are simply unable to restore peace, we can definitely call such a scenario, a situation of emergency. Post independence, martial law has never been invoked in any place of India till date, but emergencies have been proclaimed. While discussing Habeas Corpus and emergencies, the case that must never be missed is the infamous case of ADM Jabalpur v. Shivkant Shukla (1976 SC). Here, perhaps in the darkest hour of India’s constitutional jurisprudence, a five judge bench with a majority of 4:1 had held that during times of emergency, the citizens can be stripped of all fundamental rights including the right to approach the constitutional courts with a writ of Habeas Corpus. Luckily later on, in addition to several implied overruling of this infamous case, in the landmark case of K.S. Puttaswamy v. Union of India (2017 SC), the Hon’ble Supreme Court of India expressly overruled the ADM Jabalpur case and inter alia held that the right to life and personal liberty including the right to the writ of Habeas Corpus cannot remain at the mercy of the State. In other words, even during times of emergency the writ of Habeas Corpus cannot be suspended by the State. So, as an inference or logical deduction from this landmark overruling of the infamous ADM Jabalpur case it can be stated that even if in future, martial law is invoked in any parts of India, the writ of Habeas Corpus cannot be suspended and hence no illegal detentions by military authorities will be permitted.
The beauty of this overruling is almost parallel to the famous dissent of Justice H.R. Khanna in the infamous Habeas Corpus case or the ADM Jabalpur case. Almost echoing his dissent, that had cost Justice Khanna his Chief Justiceship, the 9 Judge Bench of the landmark Puttaswamy case unanimously held inter alia that the Constitution cannot be the sole repository of the fundamental right to life and liberty in any civilised state for such sacrosanct rights are inalienable to human life and predates the Constitution of India. Such strong words by a 9 Judge Constitution Bench in favour of the fact that right to life and liberty cannot be taken away without the proper authority of law corroborate the conclusion that even if in future, martial law is invoked in any parts of India, the writ of Habeas Corpus will be available ensuring only legal detentions. Moreover, courtesy to the Constitution (44th Amendment) Act, 1978, Article 359 was amended to ensure that even during times of emergencies Article 20 and Article 21 of the Indian Constitution cannot be suspended. This further ensures that the Indian Parliament does not suspend the writ of Habeas Corpus during times of emergency or imposition of martial law. Though the concept of fundamental rights in the Indian Constitution has been inspired and borrowed from the US Constitution, this situation in India is a blessed contradiction with the scenario in the USA where the US Congress is empowered to suspend the writ of Habeas Corpus in times of rebellion, invasion or on grounds of public safety.
AFSPA and martial law in India
Considering the mammoth impact of the AFSPA, a comprehensive discussion on Armed Forces (Special Powers) Act (1958) and its equivalent Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 demands its own solo space and is thus beyond the scope of this article. Attempts have been made to discuss only those elements of the infamous AFSPA that prima facie contain elements of martial law.
Before delving into brief discussions on the provisions of the AFSPA that resemble martial law, it is pertinent to note at the outset that a five Judge Constitution Bench of the Hon’ble Supreme Court, in the case of Naga People’s Movement of Human Rights v Union of India (1997), have upheld the constitutionality of the AFSPA, 1958. But a list of Dos and Don’ts for the armed forces during the imposition of AFSPA was also laid down by the Supreme Court in this landmark judgement. A combined reading of Article 246(1), Entry 2A of List I (Union List) in the Seventh Schedule and Article 355 of the Indian Constitution provides legitimacy to the AFSPA.
Now, let us briefly study some of the elements of the AFSPA that appear to contain features of martial law, the justifications in favour of them and against them. They are discussed as follows:
Section 3 of the AFSPA, 1958 empowers the Central Government or the Governor of any State or the Administrator of any Union Territory to declare the whole or any part of the State or Union Territory as ‘disturbed area’ and invoke AFSPA there, when in their opinion such a ‘dangerous or disturbed condition’ exists that the use of military forces in the aid of civil authorities is necessary. It is argued that the military forces should be used only against external threats to a country. So, in the opinion of many jurists, scholars and human rights activists, the power to use the armed forces to quash internal disturbances is an excess use of force and goes against the basic tenets of human rights and constitutional rights. The argument that is mostly advanced against this is that, presently, the threats, especially terrorist threats to a nation have become so diverse that clear cut distinctions between external and internal threats have become very hard to identify. As a result, situations may be grave enough to warrant the deployment of the military forces to curb internal rebellions, insurgencies etc., to restore peace and order faster and to make sure complete mayhem is not let loose.
Section 4(a) of the AFSPA is notorious for empowering any officer (commissioned or non-commissioned) of the armed forces working in a ‘disturbed area’ to use any force (even lethal force) necessary for the maintenance of public order, if there is a contravention of any law and order in force, even to dispel the assembly of five persons or more when such assembly is prohibited, etc. This shows that when in other areas of India, violators of Section 144 CrPC usually get a few months simple imprisonment, in the designated disturbed areas where AFSPA is in force, the violators can be shot to death. The only barrier to such wide powers to take away another person’s life is the discretion of the military personnel shooting and the quantum of warnings given before shooting is also at the discretion of the military personnel which he is expected to exercise on the gravity of the situation. The military personnel shooting need not provide any explanations or justifications as to why in his discretionary power, it was necessary to shoot with lethal force. Such wide military powers are widely argued to be the British colonial remains and goes against various international non-derogable human rights. Are the people of the disturbed areas at a similar stature to the Indian government and armed forces as the Indians were to the British before independence?
Section 4(c) of the AFSPA empowers any officer (commissioned or non-commissioned) of the armed forces working in a ‘disturbed area’ to arrest without any warrant any person who has committed a cognizable offence or is reasonably suspected to commit a cognisable offence or is about to commit a cognisable offence and in order to effect such arrest any amount of force may be applied. It is argued that in most cases, these arrests end up being arbitrary arrests and preventive detentions on mere suspicions. Moreover, though the military has been instructed to hand over these arrested persons to the nearest police stations with the least possible delay, it is believed based on reliable sources that they often keep these arrested persons in their custody for more than the recommended period of twenty four hours.
Section 4(d) of the AFSPA also gives wide powers to any officer (commissioned or non-commissioned) of the armed forces working in a ‘disturbed area’ to enter and search any premises without warrant to effect any arrest as mentioned above or to recover unlawful weapons etc.
Endless discussions are possible on how much further the AFSPA has got the stench of martial law and the above discussions constitute merely the tip of such iceberg for practical reasons. What is worse is that because of Section 6 of the AFSPA, without the permission of the Central Government, no legal action can be taken against any military personnel who have allegedly transgressed their powers under the guise of AFSPA. The recent killings of innocent civilians in the Mon district of Nagaland in December, 2021 by the members of the Indian armed forces and the way the perpetrators or the shooters have still not been punished is another of the many testaments that substantiate the allegations of extreme lack of accountability behind the discretionary powers of the military forces working in the disturbed areas. It is true that martial law has never been expressly invoked in India since independence, but the ground realities of AFSPA reek of de-facto martial law. Sitting in areas where our own rights are protected and then arguing about the necessary cost of human rights and constitutional rights that the innocent civilians of the disturbed areas must give up to get back peace and for the greater good, unfortunately stinks of nothing short of hypocrisy. In this regard, the recent efforts of the Indian government in trying to reduce the number of ‘disturbed areas’ is a welcome step in the right direction.
Article 34 of the Indian Constitution
After going through the above discussions on martial law, the natural question that may crop up in our mind is – what does our Constitution say on martial law? Well, no articles in the Constitution lays down what is martial law or when and how it can be invoked. The only provision that contains the term ‘martial law’ is Article 34. Let us have a look at what this Article says before briefly analysing it. According to Article 34 of the Indian Constitution, “Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.” In other words, it can be clearly seen that if necessity arises, martial law may be imposed in any parts of India and some of the ‘foregoing provisions’ i.e. the Fundamental Rights enshrined under Part III of the Constitution may be suspended. Moreover, any government personnel or any other person working under martial law to restore peace and order may be indemnified or protected for acts done in furtherance of the objectives of the martial law by Acts of the Parliament at a future date. Now, this provision may be interpreted to be the leeway provisions for personnel abusing their power under the garb of martial law. But attention of the readers is drawn to the objective of this clause which is to ensure that the military personnels working to restore law and order can function without the fear of backlashes when peace has been restored. When the situation is so grave that civil administration has broken down or is on the verge of breakdown, the military commander has to make laws on his own and conduct trials for the violators of such laws even though he is not the law making authority. So, to legitimise retrospectively, the necessary steps of the military or any person working to restore peace, Article 34 is necessary. The scope of misuse of a legal provision should not be the argument for its deletion. But one pertinent point that needs to be mentioned in this regard is that, no loopholes in the Indian Constitution are present by which the Indian armed forces can usurp a democratically elected government and there are sufficient safeguards at various levels to ensure the same.
Martial law around the world
After understanding the concepts of martial law in India, it is only prudent to know about martial law from a global perspective too. The following segments will briefly discuss how martial law has been dealt with in various countries across the world in the light of related concepts. And the reason the concept of Habeas Corpus has been stressed so much while discussing martial law is because while civil administration gets suspended and the citizens are at the mercy of the will of the Military Law Administrator (MLA), it is this writ of Habeas Corpus or like provisions that can take the front seat and protect innocent civilians from illegal detentions and persecution. In times of grave necessity, most of us are willing to bow down to the stricter norms and laws laid down by the military commander for the sake of restoration of law and order, but such peace must not come at the dear cost of illegal detentions and persecutions by the military. In the grave times when most civil laws are suspended, it is this writ of Habeas Corpus that can put some sort of accountability and check on the broad powers of the military commander. So, analysing the scope of Habeas Corpus in the times of martial law across various countries will help us comprehend better the full canvas of martial law but due to obvious practical impossibilities of covering the martial law of every country in the world, only some of the present global powers have been studied from an analytical viewpoint.
Habeas Corpus and martial law in USA
Before independence, the USA was mostly a British colony and thus the concept of Habeas Corpus in the US Constitution owes its origin to the common law. According to Article I, Section 9, Clause 2 of the US Constitution- “The privilege of the writ of the Habeas Corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it.” Since this provision is mentioned under the Article dealing with the Congress, It is clear from this that the founding fathers of the US Constitution empowered the US Congress to suspend the writ of Habeas Corpus in the above mentioned circumstances of rebellion, invasion and public safety, and thus it is the Federal Government of USA that was prohibited from suspending the writ of Habeas Corpus.
Unlike post-independence India, since the independence of the USA in 1776, there have been quite a few instances when martial law has been invoked in various parts of the US from time to time. The following important cases in the history of US Constitutional jurisprudence will provide a more comprehensive and clearer picture about martial law in the US scenario. As far as practicable, the subsequent cases have been provided in a chronological manner for the convenience of understanding.
John Merryman, a citizen of Baltimore was arrested by the armed forces without any warrant from any lawful authority and was imprisoned under the authority of General George Cadwalader. When Chief Justice Roger B. Taney, during his Circuit Court duty issued a writ of Habeas Corpus to the commanding officer Cadwalader, it was replied that the petitioner had been arrested upon the order of General Keim of Pennsylvania. No warrant, witnesses or evidence based on which this arrest on the general charges of treason and rebellion was made was provided to the petitioner’s counsel. Moreover, the military commander refused to obey the writ of the Chief Justice of US stating that the President of US had empowered him to suspend the writ of Habeas Corpus at his discretion and he was doing so in this case.
The arrogant and brazen reply of the military commander in response to the Chief justice’s writ of Habeas Corpus led to the following judgement of the Court. It was held that-The US President simply cannot usurp the power to suspend the writ of Habeas Corpus and the fact that he delegated such power to a military commander to be used at his own discretion is shocking.Only the US Congress can suspend the writ of Habeas Corpus in the manner prescribed in the US Constitution.A military officer can arrest a civilian who is not under the purview of rules and articles of war only to aid the civil authorities and when the civilian has committed an offence against the US. Thereafter, such civilians should immediately be transferred to the civil authorities to be dealt with according to the law.
Lambdin P. Milligan, a citizen of the State of Indiana, was arrested and tried before a military tribunal and was sentenced to death during the later part of the US Civil War on charges of conspiracy against the government, aiding the rebels, etc. He made a writ petition of Habeas Corpus which reached the US Supreme Court.
The conviction of the petitioner by the military tribunal was overturned by the US Supreme Court because the State of Indiana was not a warzone and civilian courts were still functioning there. Moreover, the military tribunal was not a court as per the US Constitution and being a court not recognised by the US Congress, the conviction of Milligan was held to be illegal. In this context, the solemn words of Justice Chase are pretty significant. He said- “The Constitution of the United States is a law for the rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances.” Such words reiterate the supremacy of the constitutional law under all circumstances. In other words, though civil law may be suspended during the imposition of martial law, the constitutional law provisions can never be suspended except as otherwise provided by the Constitution itself.
After the dreadful Pearl Harbour attack at Hawaii by the Japanese military, the then US President Roosevelt had issued a couple of executive orders which were soon enacted into laws. Gordon Kiyoshi Hirabayashi, the petitioner, who was a student at the University of Washington, was convicted of violation of a curfew and relocation order.
The US Supreme Court made it clear that during the imposition of martial law any order or rules made by the military commander which in his judgement is necessary to prevent threatened injury or damage is valid in the eyes of the law including racial discrimnation (against the Japanese in this case) because in the words of Chief Justice Stone, who wrote the unanimous judgement on behalf of the Bench – “..in time of war residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry.”
After the shameful terrorist attack on the World Trade Centre in 2001, the US began its war against terror. In this process, 2 British citizens, 2 Australian citizens and 12 Kuwaiti citizens were arrested by the US military from Afghanistan and imprisoned at the infamous Guantanamo Bay US military base in Cuba. The families of these prisoners filed the writ of Habeas Corpus in the US seeking to declare their imprisonments unconstitutional. The US government argued that since the detainees were not US citizens and were detained on fully sovereign Cuban land, they had no jurisdiction to file the writ of Habeas Corpus. The District Court and the US Court of Appeals for the District of Columbia agreed with the US government and the matter finally reached the US Supreme Court.
Guantanamo Bay, though a property of Cuba, was leased to the US government in perpetuity where the US government exercised ‘complete jurisdiction and control’. Giving this reasoning, the US Supreme Court, in a majority decision of 6:3, held that since the US government enjoyed complete control and jurisdiction over the Guantanamo base, the detainees had the jurisdiction to file the writ of Habeas Corpus irrespective of their citizenship status. This case is a landmark case in the sense that even non US citizens detained by the US military during times of war or imposition of martial law have the right to challenge the constitutionality of their detentions by the writ of Habeas Corpus. Later, once again, in the case of Boumediene v. Bush (2008), the US Supreme Court upheld the constitutional right to the writ of Habeas Corpus of the prisoners at Guantanamo Bay.
In the US, at least 68 times martial law has been invoked and the full canvas of martial law is still unfortunately in the grey. Despite the confusions, from the above discussions, the following conclusions on martial law in USA have been attempted, viz-
The US President has no legal authority to declare martial law (though it has been done and/ or approved in the past by US Presidents like Lincoln, Roosevelt etc.). But the US Congress may be able to legalise the Presidential declaration of martial law by authorising the same, though this aspect of legalising Presidential martial law declarations retrospectively is somewhat inconclusive.
State officials can invoke martial law if the situation in the State warrants the same. For example: After the Pearl Harbour attack by Japan, Hawaiian authorities invoked martial law which was later approved by the then US President Roosevelt.
The declaration of martial law by State officials cannot violate the provisions of the US Constitution and can be reviewed by Federal Courts.
Though the US President is not legally empowered to invoke martial law on his own, he can deploy the US military to assist civilian authorities and this power is only one notch below the imposition of martial law in effect.
Until the enactment of comprehensive legislations at the Federal and State levels that better define the scope of martial law in the US, the precise boundaries of martial law will remain unsettled, thus dangerously leaving open gaping holes in the martial law that can be misused at the dear cost of human rights and civil rights violations.
Habeas Corpus and martial law in Canada
The substantive portion of the laws dealing with Habeas Corpus owes its origin to England and Wales and according to Section 10 of the Canadian Charter of Rights and Freedoms (1982) – “Everyone has the right on arrest or detention to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.” So, it can be seen that every arrest or detention may require to face the scrutiny of the courts of law by the writ of Habeas Corpus. Now, the obvious question that arises is can this writ of Habeas Corpus be suspended? If so, who is empowered to do it and under what circumstances? These answers lie in the provisions of the Section 33 of the Canadian Charter of Rights and Freedoms which deals with non obstante clauses. By virtue of these non obstante or notwithstanding clauses, only the Canadian legislation is empowered to suspend the writ of Habeas Corpus. The circumstances that can warrant this suspension are not expressly laid down in the Charter and till date at the federal level, the writ of Habeas Corpus has not been suspended, although at the provincial levels Section 33 declarations have been made at times.
Now, the recent incident in the earlier part of 2022 when the Canadian truck drivers’ protests against Covid 19 restrictions and vaccinations were getting out of hand, emergency provisions were invoked by the Canadian Federal Government but it was made clear that military forces were not going to be used and that the fundamental rights (including the right to the writ of Habeas Corpus) under the Canadian Charter of Rights and Freedoms were not going to be suspended . Thus, even though to the layman martial law was being invoked by this emergency declaration, legally speaking, no martial law was put into force by the Canadian legislation. In this regard, it can be safe to comment that though not done till date, the writ of Habeas Corpus can be suspended by the Canadian legislation at the federal level in future if there is necessity and martial law as a law of necessity can be invoked.
Habeas Corpus and martial law in Russia
According to Article 22(2) of the Constitution of the Russian Federation, only by virtue of an order of a court of law can a person be arrested, detained or kept in custody. Moreover, in the absence of an order of a court of law, a person may be detained for a maximum forty eight hours only. Further, the Code of Criminal Procedure, 2002 mandates that only when a person is accused or suspected of committing a crime carrying a prison term of minimum two year imprisonment, can he be detained. But unfortunately, there is no express mention of the writ of Habeas Corpus in the Russian Constitution. So, in cases where there is a minimum two year imprisonment term and a suspected or accused individual needs to be detained for more than forty eight hours, the officials conducting the inquiry, that is the prosecutors and / or investigators have to seek judicial permission from a court of law at least eight hours before the expiry of the detention period. In other words, although the writ of Habeas Corpus is absent to a detained individual, he / she cannot be detained for more than forty eight hours without judicial sanction. The detention period can be extended for the next seventy two hours to help the investigators and prosecutors build the case against the detainee. Also, within three days, the judge’s order can be appealed to a higher court of law.
After seeing the rights of a detainee to challenge his detention in Russia, it is time to look at the scenario from the lens of martial law. According to Article 87 of the Russian Federation, the Russian President can invoke martial law to the whole of Russia or any part of it during an aggression or direct threat of aggression against Russia and must immediately inform about the same to the Council of the Federation (Upper House of the Federal Assembly) and the State Duma (Lower House of the Federal Assembly). Also, the federal constitutional law shall define the regime of martial law. In other words, the decrees of the President cannot violate the federal constitutional laws regarding martial law which is envisaged under Federal Constitutional Law No. 1-FKZ of January 30, 2002. In areas where martial law is invoked, depending on the necessity, there can be military censorship and / or full control of the media and communications, additional measures can be taken to provide higher degree of secrecy to the state authorities and local self-government bodies but court proceedings are to remain public. Further, according to Clause (4) of the Article 1 (Warlike situation) of the Federal Constitutional Law No. 1-FKZ of January 30, 2002, the rights and freedoms of any individuals (citizens, foreigners, stateless persons) can be limited as per the necessity of the situation.
Thus, the above discussions make it logical to infer that in times of peace, an individual is protected from illegal detention by judicial scrutiny but if martial law is invoked, depending on the necessity, such rights may be curtailed or suspended.
Habeas Corpus and martial law in France
There is no express use of the terms ‘Habeas Corpus’ and ‘martial law’ in French law but similar provisions have been envisaged in the constitutional law and other statutes. Firstly, the similar provisions to Habeas Corpus will be briefly mentioned and then those provisions that are similar to martial law will be portrayed. Thereafter, attempts will be made to see how far an individual can protect himself or herself from illegal detentions during imposition of martial law in France.
The provisions envisaging safeguards similar to that of Habeas Corpus can be discussed under two heads, viz-
Constitutional safeguards: The French Constitution (1958) inter alia contains the Declaration of the Rights of the Man (1789) and Article 2 of this Declaration proclaims the preservation of liberty, property, safety, resistance to oppression which are the natural and inalienable rights of the man. Further, Article 7 of this Declaration envisages that an individual can be accused, arrested or detained only as per the provisions of the law and following the due procedure of law. In addition to these, the French Constitutional law strongly deters arbitrary detentions and the French Penal Code comes down heavily on any civil servant or judicial officers indulging in the same. In addition to the above mentioned constitutional guarantees, France also is a signatory to the European Convention for the Protection of Human Rights and Fundamental Freedoms and Clause (4) to Article 5 of this Convention states that “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” All these provisions envisage the key to the protection of the famous French principle of fundamental right to liberty of an individual against illegal detentions by state machineries.
Procedural safeguards: The procedural safeguards envisaged in the French Code of Criminal Procedure implement the substantive guarantees mentioned above. For example: According to Section 126 of the Code, any arrest made on the basis of a warrant will be considered an arbitrary detention if the arrested person has not been questioned for twenty four hours and the judicial officers and civil servants indulging in arbitrary detentions will be severely punished as per the provisions of Articles 432-4 to 432-6 of the French Penal Code. Another example is that of Section 77 of the Criminal Procedure Code, which ensures that a suspect is not detained for more than twenty four hours by the police and this detention can be increased for another twenty four hours by the public prosecutor. After this for further extensions, sanctions of judicial officers will be necessary.
These above discussions clearly show that even in the absence of the express provisions of the writ of Habeas Corpus, French laws have sufficient safeguards to protect an individual from illegal arrests and detentions.
Now, coming to martial law in France, two articles in the French Constitution are of interest to us in this regard, viz Article 16 and Article 36. Before delving into brief discussions about the same, let us note that the term equivalent to martial law in the French landscape is ‘state of siege’. By virtue of Article 16, the French President can declare an emergency under serious and immediate threat to the French Republic. For a long term declaration of emergency, the President will require the consensus of the Constitutional Council and the Presidents of the Parliaments (National Assembly and the Senate). And according to Article 36 of the French Constitution, the Council of Ministers (Executive) can declare a state of siege for a maximum period of twelve days without the approval of the Parliament. Exactly what can be done under a state of siege has not been expressly laid down.
Based on analytical research read with the provisions of Habeas Corpus like provisions and martial law like provisions discussed above, the following inferences can be drawn in the case of France, viz-
Historically, at times, the state of siege provisions have bulldozed the constitutional safeguards at the cost of the right to liberty of the individual.
But there is this concept of constitutional dualism which requires that there should be two sets of legal provisions for the protection of the rights and liberties of the common man – one during times of peace and one during emergency situations based on the degree of necessity.
So, martial law or state of siege laws, being creatures of necessity, how ferociously they should be unleashed by the military to restore law and order totally depends on the degree of emergency. Even a thin line of accountability in the form of minimum laws that protects the individuals from illegal arrests and convictions by the military during martial law can actually help in the restoration of peace faster. In other words, during imposition of state of siege laws only that much erosion of constitutional guarantees should take place as required, not a degree more.
Habeas Corpus and martial law with respect to International law
The right to challenge the legality of one’s detention by state authorities is a basic human right enshrined by various international treaties and covenants. Some of these provisions expressly envisage the right to the writ of Habeas Corpus while others lay down parallel provisions without expressly using the term. Interestingly and logically enough, these international treaties and covenants also contain provisions to curtail or suspend civil and political rights in times of emergency or necessity. By now, we have understood that martial law is a law of necessity and is generally imposed during dire times of emergency or necessity to restore peace and order. Let us have a look at these provisions in international law envisaging the right to Habeas Corpus (or like provisions) and how they can be suspended during an emergency.
According to Article 8 of the Universal Declaration of Human Rights (UDHR), “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”. In other words, an individual can challenge the legality of his detention or arrest which takes away his / her fundamental right to life and liberty before the competent courts of law.This provision does not expressly mention the term ‘Habeas Corpus’ but lays down the general scope of judicial review of the legality of a detention and is thus considered to be equivalent to the writ of Habeas Corpus by various jurists and legal scholars. Since, the UDHR is considered as the primary source of human rights at the global level, the incorporation of provisions envisaging the likes of Habeas Corpus go a long way in distinguishing it from conventional obligations of states.
Moreover, according to Article 9(4) of the International Covenant on Civil and Political Rights (ICCPR), “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” This provision is similar to the above mentioned Article 8 of the UDHR but the difference in significance lies in the fact that UDHR is a declaration whereas, ICCPR is a covenant (treaty) that has been ratified by 172 states (as of December, 2018) and the Human Rights Committee that monitors the implementation of the ICCPR have held multiple times that the restrictions on Habeas Corpus are generally not permissible.
Now, let us have a look at some of the international provisions and the circumstances that empower a state to curtail or suspend this basic human right of an individual to challenge the legality of his / her detention. According to Article 4(1) of the ICCPR, any treaty state when the life of that nation is threatened may derogate the civil and political liberties envisaged under ICCPR but such derogations must be limited to the extent required as per the necessity of the situation. But Article 4(2) of the ICCPR also lays down that there are certain non-derogable human rights no matter the severity of the emergency such as the rights against murder, torture, slavery and discrimnation. Moreover, Article 4(3) of the ICCPR requires any state derogating the ICCPR rights to immediately inform about the same to the UN Secretary General and the date till which emergency measures will be in force which may be challenged by other treaty parties before an international monitoring body. But unfortunately, there are no provisions in any international treaties that include the right to Habeas Corpus as non-derogable in nature.
Thus, the above discussions show us that according to international law, the states are obligated to provide the right to Habeas Corpus during normal times but during times of emergencies, depending on the degree of necessity, the right to Habeas Corpus may be suspended. In other words, if martial law is invoked, depending on the graveness of the situation, the right to Habeas Corpus may be locked away for the greater good, for international law fails to guarantee the same under every circumstance.
Conclusion
After studying in detail on martial law, the first logical thing that may crop in our minds is that martial law is like a necessary evil. It is something that can be immensely abused, but for the restoration of law and order in extremely troubled areas, martial law becomes a dire necessity. After a thorough analysis of martial law both at the national and global level, it is strongly believed that what lacks is proper parameters around martial law. For example: It needs to be clearly defined at first as to what martial law is in the eyes of the Legislative, how the Central or Federal Government (as the case may be) plan to retain well defined control over the Military Law Administrator, well defined deterrent steps to prevent abuse of power, at least some clear provisions that will demand some accountability from the armed forces imposing martial law, clearly defined remedial measures for the victims of abuse of power, etc. are dire necessities to control this necessary evil and at the same time use it to its fullest extent to restore peace and order at the earliest. In today’s modern age, with the ever dynamic and intermingling scope of external and internal threats to a nation, clearing the shadows around martial law will garner ground support in the disturbed areas and help in restoration of peace faster. A legally crippled armed force in charge of restoration of peace in severely disturbed areas is not what is sought here. You see, martial law is a lot like nuclear power – tremendous power to bless and curse at the same time. What is simply needed here is that martial law around the world be treated with the due safety precautions that can ensure the minimum to preferably nil collateral innocent lives for the greater good of faster restoration of law and order.
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This landmark judgment dated 23 March 2022 marks the recent development in the field of maritime law. The division bench of the Bombay High Court addressed the issue of whether the crew wages and Protection & Indemnity Club’s payment towards crew wages can be treated as Sheriff’s expenses and/or a maritime lien. The judgment also mentioned guidelines relating to the abandonment of a ship (vessel).
General information
Vessel Name: GP Asphalt I
Vessel owner: G.P Asphalt Shipping Inc
Swedish Club: Protection and indemnity with which vessel was entered. Appellant in Commercial Appeal 108 of 2021.
FTI Consulting: Company undertaking restructuring of the owner of the defendant’s vessel.
V8 Pool: Respondent in Commercial Appeal No. 108 of 2021 which arrested the vessel. (Marshall island corporation)
Coram: S.J. Kathawalla and Milind N. Jadhav, JJ. [OS2]
Facts
In the present case, the vessel was arrested on 22 December 2020. Owners made the last supply of provisions and fuel on 22 December 2020. Wages had not been paid since November 2020. The abandonment (which under the MLC is considered to be when the owner does not make provision for supplies or when the owner fails to pay two months’ wages to the crew) was brought to the notice of the Swedish Club by the crew’s email dated 7 January 2021. The Swedish Club filed its interim application indicating its readiness to make payments for the crew’s benefit and seeking leave for the same on 21 January 2021. It moved an application without delay and an interim order was obtained on 27 January 2021 insofar as the food/water/supplies for the crew were concerned.
Chronology of events
On 22nd December 2020, a vessel M.T. GP ASPHALT I is owned by GP ASPHALT Shipping Inc. The Swedish Club was arrested by V8 Pool Inc. The Crew members informed via emails to the FTI consulting, that the company is undertaking a restructuring of the owner of the vessel, regarding low vessel supplies. Thereafter, the company arranged supplies for a month.
On 7th January 2021, the Crew emailed to the Swedish Club that salaries for November and December 2020 were overdue and arrangements had to be made for food and water.
On 21st Jan 2021, the Swedish Club filed interim application no. 2062 of 2021, stating that the vessel has been abandoned and relying on MLC 2006, seeking leave to make payments for maintenance and wellbeing of the crew. However, the Ld. Single Judge disallowed the application.
The crew members also filed an interim application no. 1395 of 2021, seeking that their wages accrued post-arrest be treated as sheriff’s expenses and be paid out immediately from the sale proceeds. However, the Ld. Single judge disallowed that application by an order dated 11 march 2021. Thereafter, both the Swedish club and crew members appealed the respective orders. Both appeals were allowed.
Issues
The following issues came up before the appellate court (Bombay High Court):
Whether the crew wages accrued on board a vessel after her arrest by the Admiralty Court would rank as sheriff’s expenses?
Whether a party who has approached the admiralty court for leave to pay the crew their wages can claim amounts from the sale proceeds of the vessel as sheriff’s expenses/maritime lien?
Whether pre-arrest wages paid by the Swedish Club can be given the status of maritime lien?
Rule/Law
Rule 1084 of the Bombay High Court (original side) Rules, provides that, “if expenses are required to be incurred during the period of arrest for the safety & preservation of the ship and its crew, the sheriff should make a report to the Admiralty Court and the Court shall pass appropriate orders after hearing all the parties. A party putting sheriff in funds pursuant to such order will be entitled to recover those amounts as sheriff’s expenses,” (Para 43 of the Swedish Club vs V8 Pool Inc. And 3 Ors, Commercial Appeal No. 108 Of 2021 In Interim App. No. 2062 Of 2021)
LD. single judge decision (from which appeal was preferred)
The Swedish club was obligated under MLC 2006 to make payment for 4 months and was not a volunteer. If Swedish Club makes the above payments post-ship arrest, it will not be counted as Sheriff’s expense.
To seek reimbursement, the Swedish club will have to:
File a suit
Prove the claim
Determine priorities and then seek reimbursement from the sale proceeds.
One thing to be noted, the crew themselves filed an application seeking that their wages accrued post-arrest be treated as Sheriff’s expense and paid out immediately as sale proceeds. However, the application was disallowed by the Ld. Single Judge by stating that it was open to the crew to prove their entitlement of such amount by way of suit. Aggrieved by the decision of the Ld. Single Judge, both Swedish Club and the Crew Members appealed from the respective orders.
Swedish club’s submissions (before the appellate court)
The Swedish Club made the following submissions before the Appellate Court-
That the payment made to the crew by the Swedish Club, i.e., USD 64,663 should be considered Sheriff’s expenses (these are the payment for wages accrued from 22 December 2020 (the date of arrest) till 28 February 2021 (4 months payment made by Swedish Club).
Rule 1084 of the Bombay High Court (Original Side) Rules defines what is considered as “Sheriff’s expense” and Swedish Club had approached the Ld. Single Judge under this Rule for leave, as per established admiralty law, to make payment of the crew wages which had accrued during the period of arrest through the Sheriff
The Swedish Club also stated the provisions of MLC (Standard A2.5.2). This Standard establishes requirements to ensure that an effective financial security system is in place to assist seafarers in the event of their abandonment. The financial security system shall provide direct access, sufficient coverage and expedited financial assistance, per this Standard, to any abandoned seafarer on a ship flying the flag of the Member.
It is important to understand when a seafarer is considered “abandoned”. A seafarer is considered abandoned when a shipowner:
fails to cover the cost of the seafarer’s repatriation; or
has left the seafarer without the necessary maintenance and support;
has otherwise unilaterally severed their ties with the seafarer including failure to pay contractual wages for at least two months.
Assistance provided by the financial security system shall be sufficient to cover the following:
outstanding wages and other entitlements due from the shipowner to the seafarer under their employment agreement, the relevant collective bargaining agreement or the national law of the flag State, limited to four months of any such outstanding wages and four months of any such outstanding entitlements;
all expenses reasonably incurred by the seafarer, including the cost of repatriation; and,
essential needs of the seafarer like food, water, clothing, etc.
The Swedish club approached the Ld. Single Judge to discharge its humanitarian obligations under MLC. Regulation 12 of Standard A2.5.2 specifically provides that the P&I Club is entitled to stand in the shoes of the crew once it has made payment to the crew. If the Maritime Labour Convention casts an obligation on the P&I Club to pay, it also gives the P&I Club the right to subrogation i.e., to step in the shoes of the crew and to enjoy the right which the crew enjoyed. (Para 16 of the Swedish Club vs V8 Pool Inc. And 3 Ors, Commercial Appeal No. 108 Of 2021 In Interim App. No. 2062 Of 2021)
Rule 1084 does not make any distinction between voluntary payments and payments made otherwise. Any party who incurs expenses to maintain a vessel under arrest or wages to the crew during the period of arrest is entitled to recover such expenses as Sheriff’s expenses, irrespective of whether it is voluntary or not.
What needs to be kept in mind is whether the expenses relate to the period when the vessel is under arrest. If yes, then these expenses should be categorised as Sheriff’s expenses regardless of the identity of the person who has borne or is willing to bear it. If a party wishes to make payment to the crew of its wages and stand in the shoes of the crew, leave has to be taken from the Admiralty Court before making any such payment. Without such leave, the crew’s rights in its wages cannot be assigned/ subrogated.
Thus, in the present case, Swedish Club voluntarily came forward seeing the condition of the crew and in line with its humanitarian obligations under the Maritime Labour Convention, legitimately expecting that the Ld. Single Judge would follow the worldwide practice that permits P&I Clubs, once the vessel is sold, to recover such amounts standing in the shoes of the crew.
The Swedish Club submitted that Ld. Single Judge failed to follow the binding precedent of this Court in (a) coming to a conclusion that crew members were not entitled to recover post-arrest wages as Sheriff’s expenses and (b) finding that a P&I Club was not entitled to recover wages that it had paid to the crew members for the period of arrest as Sheriff’s expenses. (Citing various judgments as proof of precedent).
Crew members’ submissions (before the appellate court)
Crew Members had been paid their wages till 28 February 2021 and this appeal was for reimbursement of wages incurred between 1st March 2021 till 20th March 2021 (when the Crew was repatriated)
Ld. Single Judge had, without assigning reasons, rejected the Crew Members’ application for their post-arrest wages to be considered as Sheriff’s expenses and paid out immediately. The Crew Members were constrained to stay on board the vessel during the period of arrest and they were entitled to their wages. They could not now be told to file a suit and prove their wages- which is what the Ld. Single Judge did.
When a vessel is under arrest, the mere fact of the crew member being on board is sufficient to entitle him to his wages. Whether he is discharging his normal duties is irrelevant – on an arrested vessel, his duties may have altered. This does not mean that he is not entitled to wages. If the Sheriff / arresting party considers his presence unnecessary, they should take steps to disembark and repatriate him to stop the wages accruing. Not having done that, the arresting party could not object to the wages being considered as Sheriff’s expenses
“Crew wages” are accorded the highest priority after “sheriff’s expenses”. (Section 9(1)(a) r/w Section 10(1)(a) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017.[OS6] )
V8 Pool Inc. submissions (who had arrested the vessel)
V8 Pool (Respondent) made the following submissions before the Appellate Court-
V8 Pool had no objection to the Swedish Club’s claim being granted the status of a maritime lien & V8 Pool had no objection to the Crew Members’ claim for the wages from 1 March to 20 March 2021 being granted the status of Sheriff’s expenses and being paid out immediately. However, the Swedish Club could not claim the post-arrest expenses as Sheriff’s expenses. This was because the Swedish Club was obliged to make payment of wages to the crew members under the MLC. It was not a volunteer and it could not seek the same benefits as a volunteer would have under such circumstances.
The Swedish Club in the present case had failed to discharge its obligations under the MLC. It had no reason to file the interim application to seek leave of the Admiralty Court and should have made the payment without any such leave. Even while seeking leave, it sought to impose a condition that the payment should be considered as Sheriff’s expenses. The MLC does not contemplate obtaining leave of the Court by a P&I Club to comply with its obligations under the MLC.
Therefore, the Ld. Single Judge was correct on the following grounds- (a) that Swedish Club was in breach of its obligations to make prompt payment under the MLC and (b) no prior leave of the court was required for Swedish Club to comply with its obligation of payment of wages, supply of food/ provision and repatriation of the crew.
The Sheriff has not sought any assistance from the Swedish Club. The expenses incurred by Swedish Club cannot be understood as the Sheriff’s requisition. Likewise, the interim application preferred by Swedish Club cannot be considered a report of the Sheriff.
As a matter of law, payment of wages and other employment entitlements of the crew after an arrest is not the responsibility of the Sheriff unless the Sheriff considers it appropriate to employ or engage crew members. The obligation is that of the ship owner. Failure of such obligation entitles the crew members to initiate an action against the vessel and enforce its maritime lien. Therefore, unless the Sheriff deems it fit to continue the crew members and accordingly presents such a report before the admiralty judge for consideration, crew wages cannot be treated as Sheriff’s expenses.
Every expense required to be incurred for the safety and preservation of the vessel and its crew after the vessel is arrested can only be incurred by the Sheriff, who is the vessel’s custodian. This removes the requirement of any party being required to obtain leave of the court. No such leave is necessary as it is only the Sheriff who will incur such expenses after first obtaining directions from the Court to this effect. Any expense incurred by a third party even if it is for the safety and preservation of the vessel and its crew cannot be considered as Sheriff’s expenses under Rule 1084 unless the Sheriff requires the third party to incur such expenses and makes a report to the court requiring such expenses to be incurred and the court makes an order to this effect.
P&I Club (Swedish Club) is not even entitled to the maritime lien status enjoyed by the crew, even if it makes payment of wages to the crew and the crew’s rights are subrogated to it. A maritime lien is a personal privilege that ensures the sole benefit of the maritime lienee and cannot be transferred.
As far as the crew’s right to claim their post-arrest wages as Sheriff’s expenses is concerned, there is no such right. The Master and crew may continue to remain on board under their contract of employment with the owners. All wages due to them would be under such a contract and would not be Sheriff’s expenses. The crew have a maritime lien in respect of these amounts but are not entitled to them being classified as Sheriff’s expenses. If the Sheriff negotiates with the crew and directly employs the crew, then wages under that contract would be considered Sheriff’s expenses.
Appellate court’s holding
On the first issue that whether the crew wages accrued on board a vessel after her arrest by the Admiralty Court would rank as sheriff’s expenses, the Hon’ble Court held that this court has repeatedly permitted crew wages accrued post-arrest to be recovered as sheriff’s expenses without putting the crew to the trouble of filing a suit, proving their claims, getting a decree, determining priorities & then seeking payment out which will take several years. Thus, the impugned order dated 11th March 2021, whereby, the Ld. Single Judge has disallowed the crew’s application for their post-arrest wages to be considered as sheriff’s expenses cannot be sustained.
On the second issue that whether a party who has approached the admiralty court for leave to pay the crew their wages claim amounts from sale proceeds of the vessel as sheriff’s expenses, the court held that the P & I Club (here Swedish Club) is also entitled to the post-arrest wages being considered as sheriff’s expenses. The Hon’ble Court held that MLC which imposes a humanitarian obligation on the P & I Club to make certain payments also give P & I Club, the right to stand in the shoes of the crew by subrogation/assignment/another mode of transfer. Given clause 12 of A2.5.2., it cannot be said that once the P & I Club has made the payment, it has to file a suit & recover the amounts after proving it, obtaining a decree, determining priorities and then seeking payment out. If the crew is entitled to claim such amounts as sheriff’s expenses, so is the P & I Club. This is in accordance with international practice. (Para 16 of the Swedish Club vs V8 Pool Inc. And 3 Ors, Commercial Appeal No. 108 Of 2021 In Interim App. No. 2062 Of 2021)
On the third issue that whether the pre-arrest wages paid by the Swedish club can be given the status of a maritime lien, the Court held that law is that, such lien is not assignable/surrogate, without prior leave of the court. However, there is no blanket embargo on the transferability of such lien. If the prior leave of the court has been taken, a lien can be transferred. Since the prior leave of the court has been taken, the maritime lien can be transferred. The Swedish Club cannot be faulted for approaching the Admiralty Court to take leave before making such payments.
Reliefs granted in appeal
The Swedish club and the crew members in their respective appeals were granted the following reliefs:
Both appeals were allowed.
Crew members (Appellants) in Comm. Appeal No. 11 of 2021 are entitled to payment of USD 11,133.31 out of the sale proceeds as sheriff’s expenses, being the payment of wages for 1st March 2021-20th March 2021 (when the crew was repatriated).
Swedish Club (Appellants) in Comm. Appeal 108 of 2021 is entitled to the payment of USD 64.663 as considered sheriff’s payment for wages accrued from 22 December 2020 (Date of Arrest) to 28 February 2021.
Swedish Club is also entitled to the payment made by it of USD52,417 to be assigned the status of a maritime lien, being payment of wages accrued from 1 November 2021 to 22nd December 2021 (the period prior to arrest).
Swedish Club is at liberty to prosecute the suit filed in this regard and to determine priorities and seek payment out thereafter, in accordance with Law.
Conclusion
The present matter deals with the issue of entitlement of crew wages accrued on board a vessel after her arrest and in the event of its abandonment by the shipowner to be considered as sheriff’s expenses. The High Court of Judicature at Bombay entertained the appeals filed by the crew members and P & I Club (Protection &Indemnity Club) in its commercial division in the exercise of its ordinary original civil jurisdiction. The Court concluded that the paramount consideration is the well-being of the crew members and the safety and preservation of the vessel and the Rule has to be construed accordingly.
Rule 1084 provides that if expenses are required to be incurred during the period of the arrest for the safety and preservation of the ship and its crew, the Sheriff should make a report to the Admiralty Court and the court shall pass appropriate orders after hearing all parties. A party putting the Sheriff in funds pursuant to such order will be entitled to recover those amounts as Sheriff’s expenses.
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