This article is written by Daisy Jain, from the Institute of Law, Nirma University. This is an exhaustive article that deals with the latest judgments of the Supreme Court on Section 420 IPC.
It has been published by Rachit Garg.
Table of Contents
Introduction
Section 415 of the Indian Penal Code (IPC) of 1860 defines the crime of cheating. Section 417 of the Code specifies the punishment for cheating. Despite this clause, harsher penalties for cheating were still necessary. Section 420 addresses this by punishing those who cheat and thereby dishonestly induce the person to deliver the property or any valuable security. To punish an act under Section 420, cheating must be proven. In other words, Section 420 particularly penalizes cases of cheating that are more severe. Under Section 417, cheating is illegal regardless of whether it is done dishonestly or fraudulently. In comparison, Section 420 deals with cases where cheating is done by dishonest inducement and the subject matter is of valuable security or property.
Rekha Jain v. The State of Karnataka and Ors. (2022)
Facts of the case
In this case, the complainant filed a complaint against Kamalesh Mulchand Jain, who is the husband of Rekha Jain, saying that the appellant’s husband stole more than 2 kg of gold jewelry from him by deception, enticement, and with intent to defraud. According to Section 420 of the Indian Penal Code, a complaint was filed for the offence. The investigation was conducted against the appellant Rekha Jain as well because she was running away and had the gold jewelry on her. When the appellant filed a petition with the High Court according to section 482 of the Cr.PC, the High Court declined to overturn the criminal charges/FIR filed against the appellant. Thus, the current appeal was filed. The writ petitioners who brought their case to the High Court have chosen to appeal the impugned decision and order by which the High Court dismissed the aforementioned criminal petition and declined to throw out the FIR/criminal proceedings against the petitioners.
Judgment of the case
Rekha Jain, the co-accused, is not even alleged to deceive by enticement and deliver the gold jewelry. Her husband, accused Kamalesh Mulchand Jain, is accused of fraudulent enticement and cheating. Therefore, it cannot be argued that Rekha Jain has committed any offence under Section 420 of the IPC for which she is currently charged, given the charges in the FIR as they are and the lack of any accusation of dishonest inducement by Rekha Jain. Because of this, the High Court made a serious mistake by refusing to halt the criminal case against Rekha Jain for the offence listed in Section 420 of the IPC. This is a situation where the High Court may have used its authority under Section 482 of the CrPC to stop the prosecution of Rekha Jain for the offence listed in Section 420 of the IPC. The criminal case brought against Rekha Jain, the appellant and accused, for the violation of Section 420 of the IPC, is now dismissed. The appeal was partly allowed.
Syed Yaseer Ibrahim v. State of U.P. (2022)
Facts of the case
In this case, on 2 January 2002, the appellant asserts ownership of the specific immovable property on the ground of a gift deed. On September 12, 2008, Azim Wasif filed a lawsuit against the appellant in an effort to get possession of the property under dispute and a declaration of ownership. In that lawsuit, the plaintiff has a will as the foundation for his claim. The First additional civil judge approved the application on September 19, 2009, and instructed the parties to the lawsuit to preserve the status quo regarding the contested property. The appellant is said to have signed a sale deed for the subject property on November 24, 2014, and it was completed on January 2, 2015. The FIR, as previously mentioned, was filed on February 5, 2020, by the second respondent, who claimed to be the holder of a Special Power of Attorney that Wasif, the person who had brought the declaratory action, had signed. Regarding the appellant, it is alleged that he committed an offence that is penalized under Section 420 of the IPC. Based on the facts listed previously, the appellant filed a petition with the High Court of Allahabad according to Section 482 of the CrPC. The petition was denied because there are disputed factual issues that cannot be resolved in procedures under Section 482 of the CrPC.
Judgment of the case
Accordingly, it was decided that, as the appellant is involved, no elements of the crime penalized under Section 420 of the IPC have been discovered to subsist. The charge sheet and the FIR make no mention of Section 420’s fundamental requirements. In light of this, continuing the case against the appellant would constitute an abuse of the legal system where a civil matter is being made to resemble a criminal offence. The appeal was granted and the contested judgment and order of the High Court of Allahabad dated 10 August 2021 were annulled on the aforementioned grounds. Subsequent to the charge sheet dated 12 February 2021, which was limited to the appellant alone, being quashed, the petition under Section 482 of the CrPC will be deemed to be successful.
Archana Rana v. State of Uttar Pradesh and Anr. (2021)
Facts of the case
In this case, the respondent filed an FIR under Sections 323, 419, 420, 504, and 506 Indian Penal Code, stating that the appellant’s husband had accepted money from him in the amount of Rs. 5,00,000 for the purpose of placing his son in a job. However, his son was unable to find employment, and when they went to the appellant’s home to request the money’s refund, the appellant physically beat the complainant and intimidated him to have him and his son unjustly charged with crimes. She also threw him and his son out of the house. The FIR and the criminal proceedings were challenged by the appellant under Section 482 of the Criminal Procedure Code in a petition, but the petition was denied by the court, leading to the appellant’s preference for the current appeal.
Judgment of the case
The Court held that committing cheating is an essential ingredient under Section 420 of the Indian Penal Code. According to the Court’s verdict, the following elements must be present for an offence to be classified as a Section 420 offence:
Firstly, a person must cheat in violation of Section 415;
Secondly, the aggrieved party must have been dishonestly persuaded to make, change, or destroy valuable security or anything that has been signed or sealed and can be turned into a valuable security. Therefore, cheating is a necessary component for an act to qualify as an offence under Section 420 IPC, and Section 415 defines cheating. The following criteria must be met in order for cheating to be considered a crime;
Thirdly, a person must be duped in order to engage in illegal or fraudulent enticement. The induced individual should be purposefully persuaded to do something that he would not normally do or omit if he had not been deceived. Examples include persuading a person to deliver something to someone or giving permission for someone to keep something.
As a result, a dishonest or fraudulent inducement is a necessary component of the crime described in Section 415 IPC. A person is guilty of cheating if they dishonestly persuade someone to deliver something. The appellants brought criminal charges under Sections 419 and 420 of the Indian Penal Code were dismissed and set aside.
Sripati Singh (Since Deceased) through His Son Gaurav Singh v. State of Jharkhand and Anr. (2021)
Facts of the case
Sripati Singh (now deceased), through his son Mr. Gaurav Singh, challenged the Jharkhand High Court’s decision on December 17, 2019. The appellant and respondent no. 2, Hitesh K. Jain, were friendly acquaintances and family friends. For commercial purposes, the accused had addressed the appellant and requested financial support in the amount of INR 1 crore. The appellant provided a total of INR 2 crores between January 2014 and July 2014 on the promise of the accused that the money would be reimbursed in June or July 2015. Four agreements dated August 13, 2014, were signed in relation to the aforementioned transaction to acknowledge receipt of the loan. Furthermore, six checks totaling INR 2 crores were given to the appellant as payment for the aforementioned debt.
The accused promised in July 2015 that the money would be returned in October 2015. When the appellant produced the checks for realization on October 20, 2015, they were refused because there weren’t ‘sufficient monies’ in the accused’s bank account. Therefore, in accordance with Section 138 of the Negotiable Instrument Act, 1881, the appellant issued a legal notice dated November 21, 2015. The appellant claimed that the accused had defrauded him since he had accepted the money on the promise that it would be refunded, and as a result, a complaint was lodged under Section 420 of the Indian Penal Code, 1860 and Section 138 of the Act.
By the contested order, the Jharkhand High Court nullified two prior decisions made by the Judicial Magistrate First Class, Palamau:
(i) order dated July 4, 2016, in which the JMFC took cognizance of the offence and summoned the accused; and
(ii) order dated June 13, 2019, in which the Magistrate rejected the accused’s petition for discharge from the criminal complaint. As a result, the appellant appealed the impugned order to the SC.
Judgment of the case
The SC ruled that even while the facts and circumstances of the current case did not support a criminal complaint under Section 420 of the IPC, the complaint under Section 138 of the Act could still be maintained. The JHC’s contested order was overturned. As a result, the JMFC’s previously indicated orders were reinstated. The SC granted the appeal with the remark that all parties’ claims of merit were left unresolved, meaning that all claims and the defence would be taken into account over the course of the trial and that the trial court would autonomously reach its decision based on the facts presented to it.
Ketan Suresh Pawar and Anr. v. Yuvraj Sandeepan Sawant and Anr. (2019)
Facts of the case
In this case, Yogesh Ahir filed a complaint in 2014 alleging wrongdoing by Sunita Tupsundarya, Yuvraj Sawant Patil, Jitendra Gadia, and Ramesh Chavan. According to the complaint, the complainant was looking for a property to buy and found Jitendra Gadia, an estate agent who specialized in bank auction flats, as a result. The aforementioned estate agent had informed the plaintiff about the Special Quota Scheme, which allowed for the acquisition of the property without using the lottery method. After demonstrating his readiness, the complainant paid Vijaynath Pal Rs. 3 lakh and obtained a document from Jitendra Gadia granting him possession of the property. The complaint makes reference to the additional payments made in that respect to Jitendra Gadia and alleges that the offered fraudulent commitments were not kept. In that context, despite receiving checks from Sunita Tupe for Rs. 10 lakh and Rs. 15 lakh, the complainant was defrauded to the tune of Rs. 26.50 lakhs as a result of the dishonored cheques.
The co-accused of respondent no. 1 was arrested in connection with the complaint, and once the investigation was complete, a charge sheet was filed against them. However, the first respondent, in this case, was detained on December 18, 2018. Accordingly, defendant no. 1, in this case, submitted a bail application to the Sessions Court, which was denied by an order dated January 4, 2019. In this context, a petition asking for bail was submitted to the High Court. The High Court has approved the request made by respondent no. 1 to enlarge him on bail after taking into account the chronology of events, the nature of the alleged offence, and the fact that the other accused have been granted bail.
Judgment of the case
He had been convicted of the crime of aiding and abetting the murder of a witness in a case in which he was being tried, which was the context of the case being addressed and the bail was under cognizance. In light of the foregoing, this court came to the aforementioned result after taking all factors into account. It goes without saying that while a bail application is being considered, the facts of each case must be carefully considered while exercising the court’s authority, keeping in mind the guidelines for granting bail. In light of the foregoing, the High Court’s jurisdiction in the present instance cannot be said to have been misused for the reasons mentioned above. As a result, we do not see a need to intervene with the order from 13.02.2019 that is being contested here. The special leave petition is dismissed because it lacks merit.
C.B.I., New Delhi v. B.B. Agrawal and Ors. (2019)
Facts of the case
In this case, the Investigating Agency (CBI) discovered in 1992–1993 that two companies, M/s. New Beam Ferro Alloys Ltd. (NBFAL) and M/s. West Coast Brewers & Distillers Ltd., had issued a public offering of their companies, and during the public offering, these companies had allegedly deceived the Punjab National Bank (PNB), PNB House Branch, Sir P.M. Road, Fort, Mumbai, of roughly Rs. 15 crore The specifics of how the claimed embezzlement was carried out by the aforementioned two companies may not need to be explained.
The CBI inquiry resulted in the filing of a criminal complaint under Section 120B read with Sections 409, 420, 468, and 471 of the Indian Penal Code, 1860 against the managers of the firms and PNB officials. Six of the twelve defendants on the charge sheet are people, and the other eight are companies. In the contested ruling, the High Court granted the petitions and terminated the criminal proceedings, which prompted the CBI to file the current appeals in this Court with special permission.
Judgment of the case
The Hon’ble Supreme Court ruled that the prosecution may proceed with the criminal trial on the basis of the evidence presented against the accused who are still alive. In fact, it would be a violation of the law, as the High Court correctly held and we agree with. Following the arguments above, we conclude that these appeals are without merit. Therefore, the appeals were dismissed.
Mustafa v. State of Uttar Pradesh and Ors. (2019)
Facts of the case
In this case, a team from the police and excise departments filed an FIR in connection with the discovery of illegal alcohol and a country-made pistol with two live rounds. The District Magistrate, who was also the District Collector, gave the appellant a notice asking them to provide justification as to why the confiscated truck should not be forfeited. The appellant presented the District Magistrate with objections. The District Magistrate issued an order for the seizure and auction of automobiles in response to this show cause notice. A legal representative is chosen by the state government, the District Judge, heard the appellant’s appeal, which was later dismissed. Additionally, the High Court received no effective challenges to the aforementioned order.
Judgment of the case
The accused was convicted of a serious economic offence and was allegedly the protagonist of the crime, so bail was rejected, according to the Honorable Supreme Court. As a result, the order of the High Court was overturned, and the appeal was consequently granted, without any comment on the case’s ultimate merits.
Conclusion
Section 415, therefore, relates to cheating in general, and the punishment for the same has been given in Section 417. Section 420 is a severe type of offence entailing delivery of property by dishonestly eliciting a person or any modification or demolition to the whole or any portion of valuable security. The most vital feature of Section 420 is the pre-existence of malicious or deceptive intention in the accused’s mind, which has been described in Sections 24 and 25.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article has been written by Naveen Talawar, a law student at Karnataka State Law University’s law school. The article is an insight into the division of powers in India, its background, and the scheme of legislative powers under the Indian Constitution. It further deals with the scheme of Article 246 of the Indian Constitution.
It has been published by Rachit Garg.
Table of Contents
Introduction
The basic principle of federation is that legislative and executive authority is divided between the centre and the states by the Constitution itself, not by any law made by the centre. As Dr B.R. Amedkar correctly stated that in the Constitutional Assembly debates, the states are not dependent on the centre for legislative or executive authority. The states and the centre are on an equal footing in this regard.
The aforementioned statement makes it clear that the Indian Constitution established a federal system as the main framework for the country’s governance. The Constitution grants the union and the states their authority by dividing all of the available powers among them, including the legislative, executive, and financial spheres. As a result, rather than serving as the union’s representatives, the states operate independently within the constraints outlined in the Constitution. This article deals in detail with Article 246 of the Indian Constitution.
Conceptual background of the division of powers
The history of the modern nation-state and its administrative elements is conceptually linked with the division of power. It was fundamentally based on the concept of separation of powers. Jean Bodin was the first modern author to advocate for the separation of powers. Later, Montesquieu enunciated and described his theory of separation of powers in his work ‘The Spirit of the Laws’ in 1748.
He stated:
The people’s freedom is threatened if the legislative and executive branches are merged into one organ as it results in the tyrannical exercise of these two powers.
The interpretation of laws is rendered worthless if the judicial and legislative branches of government are integrated into one body as the lawmaker also acts as the law’s interpreter and never confesses when his laws are wrong.
The administration of justice becomes meaningless and flawed if the judicial and executive powers are merged and assigned to one individual or one institution since the police (executive) then function as the judiciary.
Finally, when all three organs of government, i.e., legislative, executive, and judicial, are united and entrusted to a single person or body, there is such a large concentration of power that liberty is all but eliminated. It indicates the entity’s or component’s despotism. As a result, the three functions should not be integrated and should not be designated to a single or two organs. These three functions should be carried out individually by three different government bodies.
Later, the British jurist Blackstone and the founding authors of the American Constitution, particularly Madison, Hamilton, and Jefferson, fully supported the notion of separation of powers. They believed that the separation of powers was essential to the preservation of the people’s liberty.
In fact, the federating states reach an agreement, form a national state, and create the laws that govern their relations. The division of powers of each federation was influenced by the specific political conditions surrounding its formation. The division of power within each federation reflects the strategy taken by the individuals in charge of drafting the Constitution. Despite disparities existing in the specifics of legislative power distribution, there is one reality that applies to all federations: the allocation of legislative power dictates the distribution of executive authority.
Naturally, rules governing Centre-State interactions should, of course, be incorporated into any federal Constitution. Given the country’s vastness and socioeconomic diversity, the framers of the Indian Constitution desired a federal structure. The Indian federal system was not founded by a treaty or agreement amongst its member states. The allocation of certain powers and functions to the states under the Constitution transformed India’s unitary administrative structure into a federal one.
The Government of India Act, 1935 envisaged the federal scheme and, for the first time, introduced the federal concept in India and made legal use of the word ‘Federation,’ even though the process of decentralisation and devolution of power had begun since the earlier Government of India Act, 1919. Although the Constitution does not exactly follow the envisaged division of legislative power between the Union and the States in the Government of India Act of 1935, the fundamental principles remain the same.
Division of powers under the Indian Constitution
The essential principles guiding the division of powers between the Central and state governments are outlined in Part XI of Article 246 of the Indian Constitution. This part consists of two chapters: legislative relations and administrative relations. The Indian Constitution has two lists of legislative authority, one for the Centre and one for the states. The residue is left in the Centre. This approach is similar to the one outlined in the Canadian Constitution. Following in the footsteps of the Australian Constitution, the Concurrent List has also been incorporated into the Indian Constitution.
Scheme of distribution of legislative powers
Under the present Constitution, legislative powers are divided into two categories:
Territorial and,
Subject matter
In terms of subject matter, the Constitution adopts a three-tiered division of legislative powers by placing them in one of three lists: the Union List, State List, or Concurrent List. In India, the Constitutional provisions governing the division of legislative powers between the Union and the states are divided among numerous Articles (Articles 245-254). However, the most essential and fundamental of these provisions are found in Articles 245-246. Article 246 is significant from the viewpoint of the subject matter of legislation.
Distribution of legislative powers with respect to the territory
The territorial distribution of the Union’s and the states’ legislative powers is covered in Article 245 of the Constitution. It states that the state legislature may make laws for the entire state or any part of it and that Parliament may enact laws for the whole or a portion of the territorial area.
Theory of territorial nexus
Article 245 (1) of the Indian Constitution states that a State Legislature may make laws for the state’s territory. However, the state legislature cannot adopt extraterritorial legislation unless there is a significant connection or nexus between the state and the object, i.e., the subject matter of the legislation (the object may not be physically located within the territorial limits of the state).
According to this doctrine, a state’s legislature may make laws for the entire state or for any part of it. This indicates that state laws are null and void if they have extraterritorial application, i.e., if they apply to subjects or objects located outside the state’s territory. There is, however, one exception to the general norm. If there is a sufficient relationship between the item and the state, state legislation of extraterritoriality will be valid. It is accomplished by the use of the “doctrine of territorial nexus.”
So, to determine whether certain state law has extraterritorial application, the doctrine of territorial nexus is applied. It means that the subject of the legislation need not be physically situated inside the state’s boundaries, but rather must have a close enough territorial relationship with the state. If there is a territorial connection between the subject matter of the Act and the state making the law, the statute is not considered to have extra-territorial application.
Extra-Territorial operation of Parliamentary Law
Article 245 (2) of the Indian Constitution states that no law passed by Parliament is invalid because it has extraterritorial application. From a territorial standpoint, Parliament may enact laws that apply to all or part of India. Legislation enacted by Parliament is not void just because it has extraterritorial application.
Distribution of legislative powers with respect to the subject matter
The Indian Constitution is unambiguously in favour of centralisation within a federal framework. The purpose of the Constitution is to grant a constitutionally powerful Centre with sufficient powers, both in terms of scope and nature, to protect and uphold the nation’s unity and integrity.
The Indian Constitution aims to create three distinct functional areas:
an exclusive area for the Centre;
an exclusive area for the States; and
a shared or concurrent area in which the Centre and the States may coexist, subject to the Centre’s ultimate supremacy.
The scheme of Article 246 is as follows
According to Article 246(1), Parliament has the “exclusive power” to enact laws regarding any item on the Union List (List I in the Seventh Schedule). This List includes entries such as the necessity for a uniform law for the entire country. The states have no authority to enact legislation in this area. This means that any topic under the Centre’s exclusive competence, i.e., List I, becomes a prohibited field for the States.
The availability of a broad contemporaneous field for the Centre and the states is a distinctive aspect of the Indian concept of division of powers. Concurrent legislative power over the matters on the Concurrent List, i.e., List III in the Seventh Schedule, is granted to the Centre and the states under Article 246 (2).
Article 246 (3) gives the states the exclusive power to make laws concerning the items included in the State List (List II in the Seventh Schedule). These are issues that allow for local variances and are best handled at the state level from an administrative standpoint; hence, the Centre is barred from legislating on these issues. As a result, if a certain topic comes under the exclusive competence of the states, i.e., List II, that is the prohibited field for the Centre.
Under Article 246(4), Parliament has the power to enact legislation for any area of India’s territory not covered by a state, even if that area is covered by one of the items on the State List.
The Union List
It has 97 items and covers subjects that are significant to the country. Defence, armed forces, arms and ammunition, atomic energy, foreign affairs, war and peace, citizenship, extradition, railways, shipping and navigation, airways, posts and telegraphs, telephones, wireless and broadcasting, currency, foreign trade, inter-state trade and commerce, banking, insurance, control of industries, regulation and development of mines, mineral and oil resources, elections, audit of government accounts, Constitution and organisation of the Supreme Court, High Courts, and union public service commission, income tax, customs duties and export duties, duties of excise, corporation tax, taxes on the capital value of assets, estate duty, and terminal taxes are examples of the matters that can only be regulated by the Union Parliament.
The State list
It consists of 66 items that are of local or state importance and, as such, fall under the purview of state legislatures’ legislative power. These subjects include maintaining law and order, police forces, healthcare, transportation, land policies, electricity in the state, village administration, and other important local interests. On these issues, only the state legislature has the authority to make laws.
The Concurrent list
It contains 47 subjects over which the state Legislature and the Union Parliament both have concurrent legislative power. Both the national government and the governments of the states are concerned about the topics on this list. Marriage and divorce, transfers of property other than agricultural land, contracts, bankruptcy and insolvency, trustees and trusts, civil procedure, contempt of court, adulteration of food, drugs and poisons, economic and social planning, trade unions, labour welfare, electricity, newspapers, books, and printing presses, stamp duties, and so on.
Both the Central and state governments have the power to legislate on issues in the concurrent list. If state law and a central law on a subject on this list contradict, union law should normally take precedence. On the other hand, state law will take precedence if a piece of state legislation that was intended for the President’s assent receives his approval. Article 248 gives the Union Parliament the authority to act on matters not covered by any of the three lists. Thus, in India, the union government has residuary powers.
Residuary power
According to Article 248 of the Constitution, Parliament has the exclusive authority to enact any legislation on any subject that is not included by the Concurrent List or the State List. This authority extends to laws that impose taxes on subjects that are not covered by either of those lists. The Union Parliament obtained exclusive legislative authority as a result of this Article. Parliament has the exclusive jurisdiction to enact laws on any topic not covered by Lists II or III, according to Entry 97 of the Union List. The purpose of the residual power is to give the parliament the ability to pass laws on any matter that has slipped the house’s scrutiny and is still unrecognised.
The residuary authority is specifically recognised as the ultimate head of power in the Union by Entry 97 of List I of the Seventh Schedule and Article 248 of the Indian Constitution. The Supreme Court determined in the well-known I. C. Golaknath v. the State of Punjab (1967) case that Article 248 read with Entry 97 of List I granted Parliament the authority to amend the Constitution, but Article 368 only addressed the method. Although there is no justification for using a residual power to amend the Constitution, in light of the 24th Amendment to the Constitution and the Supreme Court’s decision in Kesavananda Bharati v. the State of Kerala (1973), Article 368 should be interpreted to include both the power and the procedure for doing so.
In Union of India v. H.S. Dhillon (1971), the issue in question was whether or not Parliament had the authority to enact the Wealth-tax Act, which levied a wealth tax on a person’s holdings in agricultural land. The Court determined that the proper standard for central legislation was to establish whether the item was under List-II (State List) or List III (Concurrent List). If it is ruled that the subject does not fall within List II, List I Entry 97 will allow Parliament to use its residual power to enact legislation on the matter. Whether or not it falls under Entries 1-96 of the List, in this case, is irrelevant.
If the authority of Parliament to pass a particular piece of legislation is questioned, one must look to the items in List II.
If the said statute is not related to any of the entries in List II, no further investigation is required because Parliament will be competent to enact the said statute either through the entries in List I and List III or through the residuary power contained in Article 248 read with entry 97, List I.
As a result, the division of legislative powers under the Constitution is heavily tilted towards the centre.
Principles of interpretation
The principle that responsibilities of national relevance should be given to the Centre and those of local interest should be assigned to the state is a fundamental test used to determine which subjects should be allocated to which level of government. In all federal nations, this test does not provide a regular pattern of power and function allocation between the two levels of government since it is fairly generic and functions as a kind of ad hoc formula. This disparity results from the inability to categorically separate what is of general or national significance from what is of local significance.
Defence, foreign policy, and financial issues are all seen to be of national importance and are so assigned to the Centre. What other disciplines should be included in the Centre, however, is determined by the demands of the nation’s situation, people’s attitudes, and the philosophy prevalent at the time the Constitution was established, as well as the role the Centre is expected to play in the future.
The predominance of Union Law and limitations of State Legislatures
When three lists overlap regarding a particular subject, the Union Law is given precedence.
In the concurrent sphere, Union Law takes precedence over State Law in cases of repugnance or discrepancy regarding the same issue.
The Union List includes several issues that would ordinarily fall under the competence of the states, such as industries, elections and audits, interstate trade, and so on.
The Union is given the power to legislate with respect to any topic not specified in any of the three categories. One example of this is taxation.
In some circumstances, the Union Legislature’s authority is increased. In the following situations, Parliament may pass laws pertaining to State List issues:
When a two-thirds majority vote of the Rajya Sabha, the Council of States, deems it necessary in the interest of the country.
When a state of emergency has been declared.
When the Constitutional machinery of the state has failed.
By agreement among states, with the approval of state legislatures to implement international accords and conventions.
Certain sorts of measures cannot be introduced in state legislatures without the President’s prior approval. Furthermore, many laws passed by state legislatures can take effect only after they get the President’s assent and are set aside for review by the state governor.
Entries to be interpreted broadly
The three Lists’ entries don’t always present information in a logical or empirical manner. It is practically impossible to define a list item such that it is exclusive to every other list item. An item in the multiple lists should be thoroughly read, subject to the Union List’s supremacy.
The Supreme Court ruled in Calcutta Gas Ltd. v. State of Bengal (1961)that each entry should be given the “widest possible” and “most liberal” construction, and each general term in an entry should be interpreted to cover any supplementary or subsidiary subjects that may properly and reasonably be stated to be contained by it. This is a key principle for interpreting the entries.
The essential rule for interpreting legislative entries is to read them broadly, which implies that each broad entry should be seen to include any supplemental or subsidiary issues that may legitimately and fairly be claimed to be included by it. The second rule is that contradictory submissions must be read harmoniously, which means that they must be read side by side and that the language of one must be interpreted into the language of the other.
Rule of harmonious interpretation
The three lists are extremely extensive, and the framers of the Constitution attempted to keep each entry independent from those on the others. However, as no drafting is flawless, a conflict or overlap between an entry in one List and an entry in the other List may arise from time to time. As a result, determining how these items are connected to one another becomes a challenge.
To meet such a situation, the scheme of Article 246 is to secure the predominance of the Union List over the other two Lists, and that of the Concurrent List over the State List. Thus, in the case of overlapping between an entry in the Union List and an entry in the State List, the former prevails to the extent of overlapping; the subject matter falls exclusively within the Union jurisdiction and the States cannot legislate on it.
When two items on the Union List and the Concurrent List overlap, the item on the Union List takes precedence over the item on the Concurrent List, and the subject is deemed to be exclusively Central, barring the States from making laws to the extent of the overlap. If there is a conflict between a subject’s entry on the Concurrent List and one on the State List, the Concurrent List entry will take precedence, making the issue a concern for both Parliament and the State Legislatures rather than just the State.
The courts must, wherever possible, interpret a statute, rule, or regulation’s many parts logically and sustain them rather than invalidating the entire provision. The rule of harmonious interpretation is applied when there is uncertainty in the provisions of legislation or when the provisions of a statute appear to be conflicting or opposed to one another.
In such a circumstance, the rule requires the court to interpret the statute’s provisions in such a way that all of the provisions survive in harmony with one another. The court should make every effort to reconcile and harmonise entries as far as is practicable. Only when this is not practicable does the Union Legislature’s overriding power, ‘the non-obstante clause’ come into play, and federal power prevails.
The Doctrine of Pith and Substance
The Doctrine of Pith and Substance is used when legislation approved by one legislature is contested or relied upon by another. According to this principle, the court considers the facts of the case while determining whether a given law applies to a particular issue. If one of the three lists resolves the fundamental problem, involvement with the other lists is viewed as intra vires and is not forbidden.
When applying the concept of “pith and substance,” consideration should be given to
The statute as a whole,
Its major objects, and
The scope and impact of its provisions.
When determining whether a certain statute applies to a specific issue stated in one list or the other, the courts examine the substance of the enactment. As a result, if the legislation’s provisions are inside the Union List, the State List’s inadvertent invasion does not make the law unconstitutional.
One must consider the law at issue as a whole, its objectives as well as the scope and impact of its provisions, in order to determine its actual nature. If according to its ‘true nature and character’, the legislation substantially relates to a topic assigned to the Legislature which has enacted it, then it is not invalid merely because it incidentally trenches or encroaches on matters assigned to another legislature.
In Prafulla Kumar v. Bank of Commerce Ltd. Khulna, (1947), the doctrine was applied to interpret certain clauses of the Government of India Act, 1935’s List of VIII Schedule. List II entry 27 gave the temporary Legislature the authority to create guidelines for the province’s money lending and money lenders. On the other hand, the federal legislature was given control over items like checks, bills of exchange, and promissory notes under Entry 28 of List I.
The Bengal Money Lenders Act, 1940 which restricted the amount of interest that a lender may charge on loans made, was adopted by the Bengal Legislature in 1946. The Act was claimed to be unconstitutional because it violated promissory note holders’ rights. This argument was dismissed by the Privy Council. Using the Pith and Substance test, it was determined that the Act’s pith and substance constituted money-lending, and so it fell under Entry 27 of List II. It couldn’t be declared invalid just because it happened to harm promissory notes.
In State of Bombay v. F.N. Balsara, (1951), the validity of the Bombay Prohibition Act, 1949 was contested. The state legislature approved the Act in the exercise of the authority granted by Entry 8 of List II, which grants the state legislature the authority to enact laws pertaining to alcoholic beverages, including those governing their creation, manufacture, possession, transportation, purchase, and sale. It was asserted that the limitation would affect imports, which fall under the jurisdiction of the Union Legislature in accordance with Entry 41 of List 1. The court upheld the validity of the Act by using the pith and substance doctrine. Entry 8 of List II was judged to contain the bulk of the Act’s content, with Entry 41 of List I’s infringement on the Union’s power being just incidental.
The Doctrine of Colourable Legislation
This doctrine is a technique for deciding disputes, mostly involving legislative competence. The doctrine emphasises that “what cannot be done directly cannot be done indirectly.” The concept conveyed by the statement is that, while a legislature professes to operate within the bounds of its power in making legislation, in substance and in fact, it transgresses those powers, the violation being disguised by what appears to be a mere pretence or disguise on the proper investigation. As a result, the idea is inextricably linked to the doctrine of ‘pith and substance.’ The theory derives from the phrase, “Quando Aliquid Prohibetur ex Directo, Prohibetur also per Obliquum.”
Inthe State of Bihar v. Kameshwar Singh (1952), case, the constitutionality of provisions of the Bihar Land Reforms Act, 1950 was challenged. Section 4(b) of the Act provided that all seats, royalties and cess before the vesting of property in the Government will vest in the Government and will be realised by the government. As the government had no money to pay compensation, it was provided that 50 per cent of the due rent would be paid as compensation. Section 23(1)(d) provides that out of total assets, some percentage will be deducted for the benefit of the rayat. The Court held that the legislature made colourable use of power under Entry 42 of List II. Therefore, the Act was held invalid. In fact, zamindars were not paid any compensation, though the provision for compensation was there.
In the State of M.P v. Mahalaxmi Fabric Mills Ltd. (1995) case, the issue was Parliament’s decision to colour-code the Cess and Other Taxes on Minerals Validating Ordinance, 1992, which increased the royalty rates from 400 to 2000 per cent. It was provided to compensate the state government rather than for the exploitation of minerals. The fact that Mines and Minerals (Regulation and Development) Act of 1957 gave the federal government the authority to raise royalty rates. A coal development cess that was established and collected in 1982 by a number of coal-producing states was later declared to be invalid and outside the purview of the state legislature. The Supreme Court upheld the validity of the notification, stating that it could not be considered a convenience device. Minerals belonged to the state, and any damage incurred should be reimbursed.
Limitations on the doctrine of colourable legislation
Nothing will be subject to the doctrine when the power of the legislature is not limited by the Constitution.
The doctrine of colourable legislation does not apply to delegated or subordinate legislation. If the legislature’s authority has been delegated and a bill has been approved by the delegated legislation, the concept of colourable legislation does not apply.
The legislature’s intent when passing a law is irrelevant. The bona fides or limitations of the legislature are insignificant to the doctrine. The only factor taken into consideration will be whether the law goes beyond the legislative authority of the legislature. The Constitutionality of a statute is therefore always a question of power. As a result, this doctrine is unable to address the problem of legislative arbitrariness.
The Doctrine of Repugnancy
The doctrine of repugnancy primarily addresses the conflict between the laws of the Centre and the laws of the state. Article 254 of the Constitution contains the concept of the doctrine of repugnancy. According to this Article, any law passed by the State legislature on a topic specified in List III is only legal if no contradictory law is issued by the Centre government. Article 254 was established as a method to address the conflict between the powers of Parliament and the legislatures of the states.
The doctrine of repugnancy governs the delegation of authority between the Central and state legislatures. This notion reflects the Constitution’s quasi-federal structure. It has defined the powers of Parliament and state legislatures in order to minimise inconsistencies and disputes.
A clear and direct conflict between the State and Central Acts is required.
The conflict must be complete and impossible to reconcile.
The terms and provisions of the two Acts must be incompatible to the point that they are directly in conflict with one another.
It is impossible to obey one Act without obeying the other.
The brief facts of the case are as follows,
The Tamil Nadu State passed the Tamil Nadu Public Men (Criminal Misconduct) Act in 1973. It was further amended in 1974. The Act was challenged in the Supreme Court on the grounds that it violated Central Government legislation such as the Prevention of Corruption Act of 1947 and the Indian Penal Code, 1860. The Central and State Acts, according to the Court, indirectly contradict one another. These supplemental Acts may be implemented concurrently, or pari passu which means side by side, with the Act approved by Parliament. In this case, the Court determined that repugnancy may only exist when two Acts are incompatible with one another and cannot coexist in the same place. If the Acts can function without cooperation, the repugnancy problem is not an issue.
In the Deep Chand v. the State of Uttar Pradesh (1959) case, the Uttar Pradesh State Government enacted the Uttar Pradesh Transport Service Act, which was included in List III. The Uttar Pradesh Transport Service Act had several sections and clauses that did not exist in the Motor Vehicles Act, of 1988. As a result, the Motor Vehicles Act was amended by Parliament to create consistent laws. The Court decided that both acts were in direct conflict with one another and occupied the same territory. As a result, it was considered to be void to the degree of repugnancy.
In the case of Zaverbhai Amaidas v. the State of Bombay (1954), a convict, in this case, pleaded that he was convicted by a court which lacked jurisdiction over him. According to state law, the offence for transporting food grains without permission would be imprisonment for 7 years. On the other hand, the central law imposed three-year imprisonment for the offence committed by him. A further provision in the Central Law stated that the punishment could be increased to 7 years if the person was found to be in possession of twice the permitted amount of food grains. The convict argued that the Court lacked jurisdiction because the Magistrate who sentenced him could only impose a sentence of up to three years of imprisonment and that he should have been subject to the provisions of the Bombay Act rather than the Central Act. Both laws’ fields of occupation were scrutinised to determine whether they share the same space or not. The Supreme Court ruled that both laws applied to the same subject matter and could not be separated. As a result, the state laws were declared invalid, and the Central law took precedence in accordance with the doctrine of repugnancy.
Reforming of the seventh schedule
The Seventh Schedule has never undergone a thorough review, despite the Indian Constitution has undergone numerous amendments since it was first enacted. As has already been mentioned, the 1935 Act served as the scheme for the system of distribution of powers in the Indian Constitution. The Canadian Constitution, which allowed for dual enumeration, served as the model for the 1935 Act.
The Constituent Assembly, which incorporated this scheme into the current Constitution, expanded this enumeration to cover every perceptible aspect of government functioning. Because the exhaustiveness of enumeration is a fundamental aspect of the lists in the Seventh Schedule, the lists should also remain exhaustive over time. The framers of the Constitution deliberated on the precise placement of entries under the three legislative lists vested in them, including transferring entries to the State List or even a complete restructuring of the Seventh Schedule, while also ensuring comprehensiveness.
Reconsidering the Seventh Schedule is thus justified in light of constitutional intent, taking into account the historical context of the current scheme of power distribution, and also in light of developments in the decades since its adoption.
Demands of various states
To address the imbalance in the constitutional arrangement, several states have demanded that powers be transferred from the Centre to the states.
The requirements for governance are dynamic and will change over time. In 1950, a topic might have been essential for legislative allocation, but it might not be today. To strengthen fiscal federalism, the Chairman of the 15th Finance Commission also demanded that the 7th Schedule of the Indian Constitution be reviewed.
The Rajamannar Committee, also known as the Centre-State Relations Inquiry Committee, was established in 1969 by the Tamil Nadu DMK government. In its 1971 report, the Rajamannar Committee recommended transferring several items from the Union and Concurrent Lists to the State List and giving the States residuary power. The creation of a High Power Commission to re-distribute the three lists was also advised. The Committee also suggested that state governments be consulted before any legislation pertaining to Concurrent List issues is proposed by the Centre. Little attention was given to the Rajamannar Committee Report, which was criticised for its ‘one-sided narrow thinking’ and ‘overstatement of the States’ case. The Union Government strongly disagreed with the State Government’s decision to create the Committee on its own.
Similar to this, the Shiromani Akali Dal in Punjab passed the Anandpur Sahib Resolution in 1973, which demanded that the Centre limit its authority over the State of Punjab to matters of defence, diplomacy, communications, railroads, and currency and that all remaining powers be given to the state.
In 1977, West Bengal approved a memo on centre-state relations that advocated rewriting the lists in the Seventh Schedule, giving states more control over industries and transferring residuary powers. Similar demands came from Orissa, where the then-Chief Minister Biju Patnaik expressed a desire for greater state autonomy and financial decentralisation. However, this subject was avoided by both the Sarkaria Commission in 1983 and the National Commission to Review the Workings of the Constitution in 2002.
How is delivery of services to the public affected
For the sake of better governance, the process of redistribution of entries in the union, state, and concurrent lists should not be avoided.
The state list has had items moved to the concurrent list and then the union list. Rather than moving closer to the decentralisation of power, each public good should be provided at a particular level of government. The delivery becomes suboptimal both above and below that point. Instead of the union or state level, local governments are more effective at delivering the majority of public goods. Citizens are becoming more and more insistent that such public goods be delivered effectively. Local governments, however, are unable to respond without the delegation of funds, functions, and functionaries, which is currently left to the discretion of state governments.
An instance when parliament overstepped into the states’ ambit
Three farm laws passed by the parliament in 2020 sparked unprecedented debate. The word ‘agriculture’ appears 12 times in the three lists. It appears in List I entries 82, 86, 87, and 88; List II entries 14, 18, 30, 46, 47, and 48; and List III entries 6 and 41. It is worth noting that in List I entries 82, 86, 87, and 88 (where the word ‘agriculture’ appears), parliament’s legislative authority is limited by the words ‘other than’ agriculture income (entry 82), ‘exclusive of’ agricultural land (entry 86), or ‘other than’ agricultural land (entries 87 and 88).
This means that the Union List does not give the parliament the authority to pass agricultural legislation. Entry 14 of the State List mentions agriculture. As a result, states have complete authority to enact agricultural legislation. Entry 18 mentions the transfer and alienation of agricultural land, among other things. Entry 30 mentions relief from agricultural indebtedness, among other things.
Entries 46, 47, and 48 mention taxes on ‘agriculture income,’ duties on ‘agricultural land succession,’ and ‘estate duty on agricultural land.’ Notably, these agricultural-related topics are expressly prohibited under List I (Union List), as previously mentioned.
The words ‘other than’ and ‘exclusive of ‘ in the list, I, as previously mentioned, make it clear that they are prohibited. This indicates that states have the authority to pass laws on these issues that parliament is not permitted to pass (taxes, duties, and estate duties on agricultural income and agricultural land). However, the government passed the divisive farm bills, even though the constitution does not give the parliament the authority to enact significant changes in the agriculture sector. But in 2021, these farm bills were repealed.
Recent case laws
Union of India v. Rajendra Shah and others (2021)
Facts of the case
The petitioner in the aforementioned case, among other things, contested the constitutionality of the 97th Amendment because ‘cooperative societies’ are solely a matter for state legislatures to pass laws. In other words, only the State Legislature has the power to pass legislation governing cooperative societies. The petitioner based his argument on Entry 32 in List II of Schedule VII. The learned Division Bench of the Gujarat High Court observed that even though the law governing cooperative societies is still listed in List II of the 7th Schedule, Parliament has controlled this power by requiring ratification by a majority of the State Legislature, in contravention of Article 368(2) of the Constitution, without moving the subject of cooperative societies into List I or List III. As a result, the 97th Amendment Act was ruled unconstitutional because inserting Part IX-B without the necessary ratification was ultra vires. Dissatisfied with the High Court’s decision, the Union of India filed an immediate appeal to the Supreme Court.
Issues involved in the case
Is it ultra-vires to insert Part IX-B without the necessary ratification?
Judgement of the Court
The Gujarat High Court’s decision to invalidate some provisions of the 97th Amendment Act (Part IX B) about the efficient management of cooperative societies was upheld by the Supreme Court in a decision reached by a 2:1 majority, but it was overturned by a provision it had inserted pertaining to the Constitution and the functioning of cooperative societies.
Ramalingam v. The Union of India & Another (2022)
Facts of the case
The brief facts of this case are that on January 10, the public interest litigation challenging the legality of the recently enacted Dam Safety Act, 2021, was filed. The contested Dam Safety Act was published in the Gazette on December 14th. The petitioner’s primary argument is that Parliament lacks the legislative authority to enact legislation. The petition describes the challenged Act as ‘non-est in law’ and ‘void ab initio‘ for blatant violations of Articles 14, 19, and 21 of the Indian Constitution.
The petition’s main argument is that Entry 17 of the State List (List-II) under the Constitution’s 7th Schedule conflicts with the challenged Act. “Water, water supplies, irrigation and canals, drainage and embankments, water storage, and water power subject to the provisions of List I Entry 56” are all subject to state legislature authority. Additionally, it was asserted that List II Entries 18 and 35 support the state government in terms of dam operations.
It was argued that if the four entries were read together, it would become clear that the State has the sole authority over dams, embankments, and other types of water storage units, as well as over any works, land, and structures it owns or controls, including the rights to the land. Entry 56 cannot be expanded by Parliament to cover only dams and embankments under state control. The petitioner adds that the majority of the dams in Tamil Nadu are not even constructed on interstate rivers.
The petitioner contends that the provisions of the Act are flawed by legislative incompetence when taken in conjunction with Article 246(3) of the Constitution. The petitioner claims that the Union usurps the powers of the State under the guise of ‘Dam Safety,’ invoking the doctrines of ‘Pith and Substance’ and ‘Lifting the Veil.’
The Central Government has filed a counter-affidavit with the Madras High Court, claiming that the 2021 legislation does not seek to change the states’ existing ownership and water rights. The law’s sole purpose is to establish a mechanism for proper dam surveillance, inspection, operation, and maintenance. As a result, the Counter concluded that the Dam Safety Act does not violate Articles 246(3), 14, 19, or 21 of the Indian Constitution and that the DMK MP’s allegations are false.
Issue involved in the case
Whether the parliament has the authority to enact laws where the state has sole authority to do so?
Judgement of the Court
The matter is still pending before the court.
Conclusion
The scheme for distributing legislative power between the Union and the States makes it apparent that the Union Parliament has been given more jurisdiction than the States. Even over the subjects delegated to the states by the Constitution, the states lack exclusive jurisdiction, rendering them somewhat dependent on the Centre.
There are historical reasons why India’s founding fathers created an overly centralised union. With its enormous size and numerous diversities, it was believed vital for the central authority to be armed with sufficient powers to suppress divisive tendencies in order to keep such a diverse polity under onefold. However, the states are not rendered submissive to the centre. In normal times, they have been given enough autonomy to function as separate centres of authority.
FAQs [ Frequently asked questions ]
Explain the division of power under the Indian Constitution?
The Indian Constitution’s Part XI sets forth a system for the division of power between the Union and the states. Three lists, the Union List, the State List, and the Concurrent List, are used to categorise the subjects that the Union, the States, and the Union and States together may legislate. The subjects on the Union List are those that can only be regulated by the Union government. The State List contains subjects that state governments may pass laws on. The Concurrent List also includes subjects on which the Union and the states collectively make laws.
What are the constitutional provisions governing the division of powers?
In India, the constitutional provisions governing the division of legislative powers between the Union and the States are divided among numerous Articles (Articles 245-254). However, the most essential – and fundamental – of these provisions are found in paragraphs 245-246. Article 246 is significant from the viewpoint of the subject matter of legislation.
What is residuary power?
The Union Parliament gained exclusive legislative authority under Article 248. According to Entry 97 of the Union List, Parliament has the exclusive authority to create legislation on any subject not covered by Lists II or III. The purpose of the residual power is to provide parliament with the opportunity to adopt legislation on any topic that has escaped the examination of the house and remains unrecognised.
How should the entries in each list be interpreted?
The Supreme Court ruled in Calcutta Gas Ltd. v. State of Bengal that each entry should be given the “widest possible” and “most liberal” construction, and each general term in an entry should be interpreted to cover any supplementary or subsidiary subjects that may properly and reasonably be stated to be contained by it. This is a key principle for interpreting the entries.
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 Kishita Gupta, a graduate of the Unitedworld School of Law, Karnavati University, Gandhinagar. It discusses what an affidavit is, its importance, and various other aspects related to an affidavit.
Each and every person in their life must have come across the term ‘affidavit’ but not all of them are aware of what it actually means and how it is used. This is why it becomes even more important to understand what it really means and what its uses are. In this article, the author will be dealing with all the aspects that are related to the term ‘affidavit.’ To begin with, let’s understand the meaning and some aspects of an affidavit.
What is an affidavit
As per Merriam Webster, the term ‘affidavit’ stands for a sworn statement which is made in writing and necessarily under an oath or affirmation before an authorised officer or magistrate.
A written promise is referred to as an affidavit, and according to its Latin roots, it is related to another type of promise in English. An affidavit, which means “he or she has made a commitment” in Latin, is derived from the past tense of the verb affidare, which means “to pledge.”
Affidavits can also be thought of as a form of written court testimony. In a court of law, you are required to swear that you are telling the truth and take an oath on a holy book. In an affidavit, you do the same thing verbally. Although your testimony is on paper, you are sworn in. They are essential because, without them, an affidavit can be used in place of the oral submission, testimony, or evidence that can only be admitted in court.
If the promise turns out to be untrue, then the maker has to face prosecution. When a person cannot testify in person, affidavits are usually used in court. To get a search warrant, police officers typically need to file an affidavit with a court. Affidavits are typically made without the presence of opposing counsel and without the opportunity for questioning (unlike comparable signed declarations known as depositions).
In simpler words, it can be said that ‘a written declaration signed by a person who implements, swears, verifies, and affirms under oath’ is known as an affidavit. Additionally, this individual declares that nothing has been omitted or misrepresented and that the proclamation’s contents are truthful and accurate. He also attests to the document’s veracity.
An affidavit is a legally binding declaration of a person’s oath that cannot be refuted. Affidavits are a crucial component of court proceedings since they offer a written description of the facts surrounding the incident, which can facilitate judges’ decision-making. They are useful for keeping records as well.
The following are the essential features of an affidavit:
An affidavit must be in writing.
It needs to be a declaration by the deponent.
The facts mentioned in an affidavit must be true to the best knowledge of the deponent.
In order to make it valid, it needs to be sworn in under oath before an authorised officer or magistrate.
An affidavit is never made on behalf of some other person.
When are affidavits used
Affidavits are used when there is a need to take an oath of any kind. Some common uses of affidavits are as follows:
Divorce cases,
Property disputes,
Disputes about debt,
Confirmation of received legal documents,
Name change verification,
Residential address verification,
Firstborn child certificate,
Marriage registration.
Who is authorised to draft an affidavit
Affidavits can be drafted by anyone. However, one has to fulfil some basic requirements in order to write an affidavit, such as an individual must be of legal age and fully understand the nature of the components. In other words, the person must not be insane or rendered unconscious for failing to understand the significance of the claims made in the affidavit.
An affidavit that claims to have been made by a female declarant who has appeared before the court, magistrate, or other officers in question while wearing a veil is not valid until she has been properly identified and an affidavit confirming that identity has been made by the person identifying her and certified by the court, magistrate, or other officers.
Types of affidavits
There are two types of affidavits. These are as follows:
Judicial affidavit
Judicial affidavits are written on judicial paper and properly stamped with court fees. The judicial affidavits must be submitted for a variety of reasons, including but not limited to serving as proof or as application support. A judicial affidavit needs the Oath Commissioner’s attestation to be considered valid.
Non-judicial
Affidavits that are not legally binding are written on non-judicial stamp paper. States have different stamp paper values. In most cases, it is at least Rs. 10/-. The non-judicial affidavits are typically used in administrative or business contexts. The affidavit needs to be attested by a Notary Public with a valid licence in order to be considered valid. The attestation must be signed by the notary with both his seal and a notary stamp, and it ‘shall be entered in the Notarial Registration Book.’
Commonly used affidavits in India
Name change affidavit
The first kind of affidavit is for a name change. It is a declaration made under oath by a person who swears to use their real name on any document, not a misspelling or a variation of it. This kind of affidavit may be introduced in front of a magistrate or a notary. Some affidavit instances are generic name changes or name changes following marriage. The following stage requires you to promptly publish the name change in two local newspapers after the affidavit has been notarized.
One ad should appear in a daily news publication in the state’s official local language.
A local English newspaper should print the second classified.
Identity theft affidavit
An identity theft affidavit is a document used by a person to prove that their identity was misused by someone else by using their personal information to commit any fraudulent activity. It is common in cases of bank account fraud.
Affidavit of a lost document
An affidavit of a lost document is a declaration made when someone loses an important document of theirs or if, for whatever reason, it gets destroyed. To protect the holder or replace the certificate, the security issuer needs an affidavit. The lost document can be anything, such as a passport, a mark sheet, a government ID, etc.
Affidavit of power of attorney
A power of attorney is basically your attorney – in – fact, or in simpler words, your agent, who you entrust to act on your behalf on any legal matter for which you allow him to do so. When acting on your behalf with another party, your agent is frequently asked to provide proof of power of attorney. To accomplish this, it is typical to request an affidavit of power of attorney from the agent. The agent certifies in the affidavit that he is your agent and that you granted him power of attorney, which you have not revoked. Along with the affidavit, the agent often encloses a copy of the power of attorney.
Joint affidavit for registration of marriage
In India, a marriage cannot exist in law unless it is registered. The bride and groom receive a marriage certificate at the conclusion of the marriage registration process. This kind of affidavit is a declaration made by a husband and wife after their wedding that includes the date, place, and legal system in which the union was registered. The full names and addresses of both parties’ parents should be listed in the joint affidavit.
Both individual and joint affidavits may be presented in accordance with the two primary marriage registration Acts in India, i.e., the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. The option you make would be governed by state law. You need a common set of documents to register for any type of event. It is as follows:
The application form for registration,
Address proof,
Valid Identity proof,
Proof of date of birth,
Two passport-sized photos of the bride and the groom,
The death certificate of a previous spouse if either party is widowed,
Divorce decree if either party was married before.
First born child affidavit
The first born child affidavit is a document that parents are obliged to present to a school or nursery in which they are seeking admission for their child. It is frequently needed during school and nursery admissions. Like with other affidavits, the process is quite simple. The document calls for one or both parents to serve as ‘deponent(s)’ and declare that the ward at issue is in fact their firstborn child and that they are authoring it in order to get the ward into a specific educational facility. To complete this, one might go to any notary in their area. The document is deemed to be valid and enforceable once the notary seals it.
Affidavit of debt
An affidavit of debt is a declaration from an employee of the plaintiff (typically the collection agency) stating that they are aware of the methods of record keeping at the original creditor regarding debt. This also means whenever a certification is required regarding the truthfulness of the information, they can do so.
Affidavit for no criminal offense
When someone is awarded a responsible position in government authority or when they participate in elections, they must submit an affidavit stating that they have committed no criminal offence. Additionally, many reputable businesses need this affidavit as part of their hiring procedures when hiring new staff.
Who attests an affidavit
The Court, Magistrate, or other officer mentioned above before whom an affidavit is made must certify that the affidavit was made before him. After that, one of the above-mentioned people shall enter the date and sign the certificate, and lastly, mark each exhibit referred to in the affidavit for identification purposes. The verifying authority’s name must be fully signed, and special attention must be given to ensuring that his correct identification as a Civil Court or Magistrate is appended.
Non-judicial affidavit
A non-judicial affidavit can be attested by the following persons:
Notary appointed under the Notaries Act, 1952 for a respective area or the whole of India Notary;
Magistrate for a respective area.
Attestation of affidavits by process servers and other officials
The State Government has authorised the Court of the Subordinate Judge of the First Class in charge of the Nazarat to appoint an officer subordinate to itself to administer oaths to process-servers, bailiffs, naib-nazirs, and nazirs making affidavits of service of summons, notices, and other processes under Order V, Rule 19, or Order XVI, Rule 10 of the Code of Civil Procedure in order to facilitate the verification of affidavits of serving officers.
Identification of the deponent
If the court, magistrate, or other officer appointed to administer the oath or affirmation is not personally acquainted with the person making the affidavit, the person must be identified to the court, magistrate, or officer by a person who is acquainted with him. The court, magistrate, or officer shall specify the name and description of the person by whom the identification is made, as well as the time and location of the identification and the making of the affidavit at the foot of the affidavit.
Attesting officer’s duty
There are instances where a person who submits an affidavit appears to the court, magistrate, or other official administering the oath or affirmation to be illiterate, unaware of the language used to write it, or unable to fully comprehend its contents. In this case, the court, magistrate, or officer must have the affidavit read to him and explained to him in a language that they all understand, either by doing it themselves or by having someone else do it for them while they are both present. When an affidavit is read and explained in accordance with the provisions of this clause, the court, magistrate, or another officer as applicable, shall certify in writing at the foot of the affidavit that this has occurred and that the declarant appeared to understand it completely at the time it was made.
Attestation and verification of affidavits
Every affidavit must have the deponent’s signature, marked, and verified at foot, as well as the attestation of the court, magistrate, or other official delivering the oath or affirmation. The deponent must sign and the attesting officer must initial each page of the affidavit. The deponent must sign or annotate the verification on one of the forms that are attached to this document.
Contents of an affidavit
Every affidavit comprising a statement of facts must be broken up into paragraphs, each of which must be numbered sequentially and, to the greatest extent possible, must be limited to a single area of the subject.
Any individual who submits an affidavit must be identified clearly by giving their full name, the name of their father, their profession or trade, and their place of residence unless they are a plaintiff or defendant in the lawsuit in which the affidavit is submitted.
The declarant must state immediately and positively, using the phrases “I affirm” or “I swear and say,” whenever he refers to facts that are in his knowledge.
When the specific fact is not known to the declarant but is stated based on information obtained from others, the declarant must use the phrase “I am informed” and, if applicable, should add “and verily believe it to be true.” Alternatively, he may specify the source from which he obtained the information. When the declaration is supported by documents or copies of documents obtained from a court of justice or another source, the declarant must identify the source and express his knowledge or belief regarding the accuracy of the facts contained in those documents.
Punishment for filing a false affidavit
Anyone who knowingly provides false testimony in any stage of a legal proceeding, or who creates false testimony with the intent to use it at any stage of a legal proceeding, shall be punished by imprisonment of either kind for a time that may not exceed seven years, as well as by a fine.
Anyone who knowingly provides or fabricates false evidence in any other circumstance faces a fine as well as a term of imprisonment of either kind that may last up to three years. Making a false affidavit in one’s pleadings or submitting a fake affidavit or false document in evidence before a court of law is a crime under sections 191, 193, 195, and 199 of the Indian Penal Code, 1860.
A criminal proceeding against the offending party may be started by filing an application under Section 340 read with Section 195 of the Code of Criminal Procedure 1973 before a criminal or civil court for providing false testimony.
A private complaint may be brought under Section 200 of the IPC before the appropriate magistrate when fraudulent affidavits or other false documentation are presented in any quasi-judicial or administrative action.
An application must be made in accordance with Section 340 read with Section 195 of the CrPC 1973, if any tribunal is designated as a court in the statute.
In the case of Ranjeet Singh v. State of Punjab (1959), the police officer defendant was required to respond to a writ of habeas corpus motion made under Article 226 of the Constitution, alleging that the defendant had wrongfully held a man in police custody. The accused made a fake affidavit in his written statement, claiming that the individual was never taken into custody or apprehended by the police.
Evidentiary value of affidavits
Affidavit evidence is not admissible unless the law specifically permits it. For example, real possession under Section 145(4) of the Criminal Procedure Code cannot be established with an affidavit.
The Indian Evidence Act does not apply to affidavits presented to any court or officer. An affidavit is not evidence under the Indian Evidence Act, 1872. If a fact is allowed to be proved by an affidavit by the C.P.C., Cr.PC or any other law, it can be proved by affidavit notwithstanding the provision of the Indian Evidence Act vide the order Sheoraj v. A.P. Batra 1955. This case also noted that the affidavit is worthless if the deponent refuses to appear for cross-examination in response to a demand from the opposing party.
The Court in the case of Premlal v. Kunti Bai, 2019, believed that a close reading of Section 3 of the Indian Evidence Act, 1872, would demonstrate that the affidavit is not covered by the definition of ‘evidence’ and can only be used if the court grants permission for good cause. Only when an affidavit is filed in court or at the court’s request, or when the law specifically allows for the use of affidavits as proof of anything, can it be said to be ‘evidence’ within the meaning of Section 3 of the Code. Therefore, any court cannot consider the submission of an affidavit or one’s own declaration in one’s own favour. According to the High Court, it is now “clearly established that an affidavit is not ‘evidence’ within the meaning of Section 3 of the Evidence Act unless an opportunity is afforded to the opposite side as provided in Order 18 Rule 4(2) of the CPC to successfully cross-examine the person(s) interrogated.”
Additionally, Order XIX and Section 139 of the Code of Civil Procedure, 1908, as well as Order XI of the Supreme Court Rules, provide the legal requirements for affidavits. According to Order XIX of the Code of Civil Procedure, 1908, the court has the authority to order the affidavit proof of any specific fact or facts at any moment. However, if it appears to the court that either party wishes the production of a witness for cross-examination and that such a witness can be provided, the court shall not issue such an order.
The process of drafting an affidavit
Write the name of the court or tribunal where the affidavit will be filed, along with the assigned case or suit number, at the top of the document.
Briefly mention each party’s name.
Mention “AFFIDAVIT” in bold and italics as the document’s heading or title.
Then, after saying “Do solemnly swear and declare as under,” provide the deponent’s information (the person who is testifying as to the veracity of the claims he made in the main petition). This information includes the deponent’s name, the name of his father, his age, and his residential address.
The deponent must declare that he or she is the plaintiff or defendant (as applicable) in the lawsuit for which the affidavit is being submitted in the first paragraph following the introduction and that he or she is fully aware of and conversant with the facts of the case and is qualified to testify regarding them.
Mention in the second paragraph that the deponent’s attorney authored the petition or submission made in the petition and that the contents were read over in simple English with a comprehensive explanation given to the deponent, as well as the ramifications of the same.
Briefly describe the details of the lawsuit or the deponent’s submission. If the information is included in the main petition, it is not necessary to repeat it in the affidavit; instead, one can state that “the contents of the petition are not being reproduced here for the sake of brevity and one shall treat the same as a part of this affidavit.”
Finally, add a sentence that says, “This is the deponent’s true and correct declaration,” then a section concerning verification that says, “To the best of the deponent’s knowledge, the contents of the affidavit are true and correct, and nothing material has been withheld.”
Sample affidavit
If ID proof has a single name for the applicant.
I ____ (Applicant Name as per id proof), residing at _______(Address as per address proof) do solemnly affirm and stated as under:
I am _____ and my name _______, appearing on the enclosed ID proof, is a single name. My father’s name is ________________. For applying my DIN application, I am mentioning my father’s name “____________” as my last name, as this is a mandatory requirement for applying DIN. Both names denote one and the same person.
I solemnly declare that the information in this affidavit is accurate to the best of my knowledge and belief, that it contains no false information, and that it contains nothing to be concealed.
Affidavit for name change
I Mr/Ms ____________S/o/D/o______________, aged around ______________years, resident of ______________, do hereby solemnly affirm and declare as under:
That, my name as per the records in my educational institution is ______________ (ABC)
That, by the virtue of this affidavit, I changed my name as _________ on (date of change of name).
Currently, all the records have my changed name _________.
That, I shall at all times, in all dealings and proceedings, sign the name _________ as my name, thereby substituting my former name.
I am getting a public notice published to this effect in the newspaper.
Also, I state that (earlier name) and that (present name) are the names of the same person, and that is myself.
This declaration is hereby executed and submitted to the concerned authorities to accomplish the change of name.
I hereby state that whatever is stated herein is true to the best of my knowledge.
Solemnly affirmed at ________ )
On this ____ day of ______ 20 )
(Signature of the Applicant).
Deponent
Note: The above-mentioned affidavit is for reference purposes only, and it is always advised to seek legal assistance while making any such affidavit.
Conclusion
Affidavits are crucial in legal work because they are a legally binding version of the oath that a person has taken. Affidavits are used by people to resolve issues and stay clear of legal snares. However, those who submit or support the fraudulent affidavit are subject to severe sanctions. You must also comprehend the meaning of an affidavit, how to use one, the many kinds of affidavits, and many other things.
Frequently asked questions (FAQs)
What is the purpose of getting an affidavit?
The intention is to stop people from making declarations about things they do not reasonably know about. The deponent must present information that is personally known to them. However, there is an exception when affidavits are sworn on behalf of children under the age of 18 or the insane.
What information shouldn’t be stated in an affidavit?
Affidavits must only contain information that the deponent can personally attest to and should not include any unsupported allegations. It is forbidden to incorporate any hearsay information, fantasy, or belief into the affidavit.
Are affidavits and notaries the same?
When you sign a document in the presence of a notary or an oath commissioner, the affidavit gains legal status and contains facts and information you firmly believe to be accurate. A notary is required when you need an affidavit. A notary is an official who has the power to certify statements made by individuals in the form of affidavits, which are legal documents.
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:
Regulation of the competition in a country’s market is one of the intrinsic methods of ensuring that the price of goods does not skyrocket and that consumers get what they pay for. If competition is not supervised, a large market player can easily abuse their dominant position to either carve out a greater piece of the market share or corner consumers. But this regulation cannot be based on a stagnant dimension that does not properly represent the market situation. As the market grows not only in size but in characteristics as well, this regulation would have to adapt. One such adaptation needs to be made to reign in the fast-growing digital market. This article shall hence focus on the regulation of competition in a digital market space, with a specific focus on the rubrics that would govern such competition.
Competition in India
Currently, the Indian market’s competition is regulated by the Competition Commission under the Competition Act, 2002. There are no special provisions to deal with the competition in digital markets and the first impulse that one would have in that situation is to suggest that there be new legislation that specifically deals with it. For example in Germany, amendments were recently made to its competition law to address the growing concern surrounding big tech in the digital market. Certain companies that have an almost ubiquitous presence on the internet like Google have been given the status of a digital gatekeepers. Google, having as many digital services as it does, and virtually being a monopolist in certain fields, would be handled differently by the German competition authority (Federal Cartel Office) as compared to other internet-based companies.
New regulations don’t need to be introduced to deal with the digital market competition; firstly, because CCI can interpret the law in India in such a manner that it encapsulates the digital market as well, and secondly because introducing legislation, especially on the central level takes experimentation, research, and debate which may take the time that the market does not have. It is certainly possible for the CCI to manage to regulate the digital market in the current working framework. And certain rubrics for monitoring digital competition that have been mentioned in this article are already matters that the CCI is equipped to deal with, such as determining the relevant market. But the issues come up in the more specific areas of regulating the digital marketplace. And the gap in the current era of competition regulation and the current marketplace is evident from the fact that the Competition Act was itself a law passed in a time when digital marketplace competition was not on the priority list, or even on the list of possible concerns. Hence at this juncture, it would be helpful to go through a few of the rubrics that need to be considered when specifically looking at digital marketplace mergers.
Rubrics for monitoring digital competition
Trying to solve the issue of digital market mergers, the first hot button issue is generally the aspect of the monopolization of user data, which can be collected, analyzed, and utilized for further capturing the market. The better the companies know their customers, the better their operations generally get. But that is not the sole ground on which competition is to be monitored. The second rubric for monitoring the digital market is how a company gains a portion of the market, that is, by capturing a user base, and that can only take place through a good product, effective marketing, and attractive prices. Flipkart and Amazon have been able to gain market space in their fields primarily due to the highly discounted prices of the products on their platforms.
The third rubric is the interrelationship between digital and brick-and-mortar businesses. When we look at the market space as a whole, we cannot ignore offline businesses and the competition between them and online stores. Because of online stores, there are already plenty of brick-and-mortar businesses, especially smaller ones, that have felt the heat of their competition with online stores (particularly during the pandemic). This brings up the issue of substitutes in the market. The products that are offered online are also generally available offline, the difference being in the convenience of buying something online, and the reliability of buying something offline. Moreover, the interrelation between online and offline doesn’t end there, as online stores have their offline branches as well.
The second rubric should have a moderating effect upon any merger regulation, as ultimately competition law is meant for boosting innovation for the benefit of the consumers. The third rubric is more complicated, in that, it lays down how one is to perceive the definition of “relevant market” when deciding on competition violations. The reason why “relevant market” is very important is that it fundamentally decides whether a business has violated competition laws or not. If the definition of the relevant market is too narrow, the market share of the business can be high, but because the market is so narrow, it does not have enough of an impact on the general populous; hence even though a merger may be considered as a competition violation, it would be a pedantic conclusion. If we have a very wide definition of the relevant market for any case, then a competition violation may not be caught.
Targeting younger firms
The fourth rubric to consider is the difference in strategy concerning the mergers and acquisitions undertaken by digital players. Larger companies such as Amazon, Google and Facebook tend to acquire young targets that are yet to be well established in the market and have very low turnovers. The reason why the big companies buy out the smaller ones is to either exploit future potential or kill future competition. But because at the time of acquisition competition authorities are unable to identify the opportunity or threat for the acquiring company, and the combination goes under the radar until it’s too late. The competition authority would have to project the development of a nascent start-up to determine the success that it would achieve in the future; the future success based on which the large acquiring company is entering into such an arrangement.
It would be impossible to predict such a thing as the market is not as conventional and formulaic, because if it was then we would be able to mark out the progress of any business, which we obviously can’t. It is only after the fact that we can trace the reasons for the success of a business and create a case study of it. But the benefit of hindsight would not aid in the monitoring of competition as it would mean that we would have to engage in ex-ante regulation, that is, retrospective action, which is generally not preferred in law; especially for two reasons in this case – mergers and acquisitions are expensive and more expensive to undo. It would also not be feasible to examine every single acquisition that digital players make. We must also consider that as per general principles of competition law, companies are not to be penalised for potential competition violations, but for real ones. This rubric is a complicated one to deal with and a middle ground would be most appropriate.
Conclusion
This article has listed four rubrics to specifically consider in the case of digital market mergers.
Collection of Data
Capturing User Base
Relationship between online and offline business
Targeting young firms
Data certainly needs to be one of the considerations when the Competition Commission is reviewing any combination that involves tech companies. Not just the collection and concentration of data but the analysis and utilisation of it in a manner that would capture greater chunks of the market.
But more importantly, to set the entire investigation straight right from the get-go, it is vital that the “relevant market” be defined in a manner that not only encompasses the digital space but also the brick-and-mortar space to have a more nuanced approach towards competition regulation. And this regulation needs to be such that it does not stifle innovation but bolter it, as it is very much possible that a company introduces such a product that completely takes the market by storm and starts to create a monopoly; at which point it is not to be punished for innovating.
Lastly, since ex-ante regulation of acquisitions of younger firms is not fair to the companies, and regulating every merger or acquisition is not feasible, it would be best for the competition authorities to conduct an annual survey of the digital market space independently and in relation with the offline market to better understand the status digital stores and big tech. And based on such a survey, the CCI can suggest policy changes to curb any antitrust violations or abuses of powerful positions. And like Germany treating Google in a manner different from other tech companies due to its ubiquitous presence on the internet, India should also not shy away from treating different companies, differently based on their market share, data collection, effect on offline markets and pricing; as competition law is, in essence, the unfair treatment of businesses on the top, to create a more fair market.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article has been written by Hemant Bohra of Lovely Professional University, Punjab. This article discusses in detail the provisions of International laws on asylum seekers and refugees, which include the rights and protections granted to asylum seekers, exception clauses, application procedures, and governing laws. The article pays close attention to human aspects as well as their standing in International Law.
It has been published by Rachit Garg.
Table of Contents
Introduction
All parts of the world embrace the idea of asylum or sanctuary. It has roots in religious writings, intellectual concepts, and old hospitality customs. According to recent data by the United Nations High Commissioner for Refugees (UNHCR), a total of 89.3 million people were forced to be displaced from their countries, and more than 4.6 million people were asylum seekers worldwide by the end of 2021.
There are several reasons why staying in one’s own country may be too difficult or hazardous for certain people. Children, women, and men escape their home country because of their sexual or gender identity, conflict, famine, severe poverty, or the effects of climate change or other natural catastrophes. If this occurs, another nation must intervene to guarantee that the fundamental rights of the asylum seekers are upheld, known as international protection. This article provides a thorough overview of international asylum law and all relevant provisions that readers should be aware of.
Classification of a refugee, asylum seeker, and migrant
S. No.
Refugee
Asylum Seeker
Migrants
A refugee is a person who has been compelled to escape conflict, persecution, or violence and is looking for a safe haven. International law defines and protects refugees, and every refugee starts as an asylum seeker.
An individual who has applied for refugee status but has not yet received a formal decision is referred to as an “asylum seeker” because they fear danger in their home country.Not all people who apply for asylum qualify as refugees.
A migrant decides to move frequently, maybe domestically or across international lines, generally to meet family, pursue education, or a job. Migrants are not forced to leave their country unless under some dire conditions, such as poverty, political upheaval, etc.
Based on well-founded fear, an official body like a government or the United Nations Refugee Agency decides whether a person requesting international protection satisfies the criteria of a refugee. A recent example is the Ukraine refugees.
Asylum seekers must ask for protection in another country, which requires them to travel there first. They must then be able to demonstrate to local authorities that they fit the requirements for receiving refugee protection. Not all people who apply for asylum will be accepted as refugees.
Regardless of their status in the nation they migrated to, migrants have the right to have all of their human rights safeguarded and respected, even if they are not fleeing persecution.
Many candidates must wait years in unsafe refugee camps overseas as the application procedure for refugee status can be lengthy. Refugees are not allowed to travel until their application has been approved and they have received travel authorization.
The asylum procedure might take years to complete. A person may occasionally submit an application or pass a genuine fear test and be given a hearing or interview date that is years away.
To find employment or a higher quality of life, migrants do not need to go through a protracted screening process, unlike immigrants (a person who relocates to another nation to settle).
International asylum law and procedure
According to international law, the protection provided by a state to a foreign national against their home state is known as an asylum. Neither the individual for whom asylum is sought has the right to demand it nor the foreign state is legally obligated to provide it. India lacks a national system for protecting asylum seekers and refugees and is not a signatory to either the 1951 Refugee Convention or its 1967 Protocol. It does, however, continue to provide sanctuary to many refugees from neighboring countries and adheres to the UNHCR’s mission for other nations, mostly from Afghanistan and Myanmar. Apart from India, several countries have their own rules and policies regulating asylum laws.
Asylum law in the United States
Asylum law in the United States is governed by the Immigration and Nationality Act (INA) of 1952. According to INA §208(a),(b)(1), If a person is already in the country and otherwise qualifies as a refugee, they may be given asylum. Race, religion, nationality, membership in Particular Social Group (PSG), and political beliefs can all be grounds for refugee status. Membership in a PSG offers the strongest foundation for claims of asylum based on sexual orientation, gender identity, and/or HIV status out of the five grounds on which a claim for asylum may be made since it is the most ambiguous.
Essentially, just the Form I-589 is necessary to apply for asylum, but in order to ensure that an asylum seeker is granted asylum in the United States, it is crucial to submit additional documents, such as a written declaration by the applicant outlining in detail the basis for their claim, documents unique to the case that support their claim, and documents about the applicant’s country of origin during the asylum application process.
Application for asylum and for withholding of removal form
Form I-589 is used for asylum applications, which include details of the person applying for asylum, his or her spouse and children, and background according to the United States:
If a person who satisfies the description of a “refugee” as mentioned above is not prohibited from seeking asylum due to any of the grounds specified in Section 208 of the Immigration and Nationality Act, 2002, and the adjudicator determines that the person should be given asylum in their sole discretion, they may be granted asylum in the foreign nation.
The one-year filing limit, which requires that an applicant for asylum submit their claim within a year of their last entry into the country, is one of the barriers to asylum. Cases involving those who require asylum will be adjudicated at the asylum office, while those involving others will be decided at the Immigration Court.
The request for protection under the UN Convention Against Torture and the withholding of removal under Section 241(b)(3) of the INA, 2002 are two related but less advantageous alternatives to asylum that may be included in the same application.
UN Convention against torture – To be awarded withholding of deportation under the United Nations Convention Against Torture, a person must prove that they would be tortured more often than not if they were sent back to their country of origin. No aspect of discretion exists. Most of the limits on asylum are waived for requests for protection under the United Nations Convention Against Torture.
Withholding of removal – A person must show that, if sent back to their country of origin, they would be more likely than not persecuted due to their race, caste, gender, nationality, or participation in a particular social group to be granted withholding of removal under Section 241(b)(3) of the INA 2002. The one-year filing date and several other restrictions on seeking asylum do not apply to requests for delays in deportation.
Asylum law in Australia
Just like in Asia, Australia has a legal responsibility to defend the human rights of all refugees and asylum seekers who enter the country, irrespective of how, where, or whether they come with a visa or not. However, just as in other nations, an asylum seeker must enter Australian territory in order to get protection.
As a signatory to the Refugee Convention, Australia is committed to preventing the deportation of individuals who meet the criteria for refugee status to a nation where their life or freedom would be in danger.
Thousands of people, including some recognized refugees, are presently detained in immigration detention facilities around Australia. According to the Migration Act of 1958, anybody entering Australia without a valid visa, whether they are coming from the coast or an excised offshore area, shall be kept in detention centers until they receive a visa or are expelled from the country.
Application and procedure to claim asylum
The Refugee Status Determination and Complementary Protection System evaluates the claims of protection of asylum seekers who fly into Australia, in accordance with the Migration Act of 1958. Asylum seekers who entered Australia by boat at an “excised offshore site” were entitled to have their claims processed within the Migration Act’s system on March 24, 2012, if the Minister decides to grant them permission to file a legitimate visa application. An individual can fill out Form – 842, an application for an offshore humanitarian visa provided by the Australian government, or can submit an online form to apply for asylum in Australia.
However, prior to March 24, 2012, however, asylum seekers who landed by boat at a “excised offshore site” had their applications for protection evaluated in a non-statutory process with less procedural protections than under the mechanism outlined in the Migration Act.
The Department of Immigration and Citizenship (DIAC) will determine whether an asylum seeker meets the requirements for refugee status according to the Refugees Convention for those who have their claims processed in Australia under the mechanism outlined in the Migration Act. If it is determined that a person is a refugee and they meet the conditions for health, identification, and security, they will be given a protection visa. Even though a person is not a refugee in some situations, returning to their place of origin might subject them to serious human rights violations like torture.
Asylum law in the United Kingdom
For many years before 1951, and as a signatory to the Refugee Convention, Britain provided shelter to those escaping oppression and war. The European Convention on Human Rights, which outlaws torture and other cruel, inhumane, or humiliating treatment or punishment, is another treaty that the United Kingdom has ratified. To assume that all applicants for asylum who do not meet the criteria of the Geneva Convention, often known as the Refugee Convention, are economic migrants or false refugees, is oversimplified and inaccurate. Civil conflicts arbitrarily ensnare large populations of people, who are then falsely charged by both sides with supporting the other cause. A few people are imprisoned and tortured as a result of their political views.
According to data added by UNHCR, the UK was home to 3,968 stateless people and had 83,489 pending asylum claims as of mid-2021, most of whom came from Iran. In comparison to other countries, the UK’s asylum facilities are not very advanced. The majority of asylum seekers are unable to work in the United Kingdom and are thus dependent on government assistance. Although housing is supplied, asylum seekers are unable to pick where it is located, and it can be challenging to rent buildings that current council residents do not wish to occupy.
Policies adopted by European Union (EU) regarding asylum law
Reception of asylum seekers
The revised Reception Conditions Directive (2013/33/EU) lays forth minimum requirements that must be met by all Member States when receiving individuals seeking international protection. It gives the Member States a mandate to make sure that candidates for international protection have access to basic reception conditions, including food, healthcare, and work. Additionally, it limits the imprisonment of vulnerable people, especially kids.
Temporary Protection Directive (TPD)
The extraordinary move to implement Council Directive 2001/55/EC of the European Union, often known as the Temporary Protection Directive (TPD), has been made by the EU Member States. Following wars in the Balkans in the 1990s, the Temporary Protection Directive was developed in 2001 to handle a “mass inflow of displaced individuals” with the purpose to provide EU members a mechanism to ensure a “balance of efforts” in order to relieve strain on their national asylum systems. The emergency temporary protection system gives asylum seekers the same rights throughout the EU, including the ability to live there for up to three years, the right to employment, housing, and access to healthcare.
Qualification of third-party nationals as beneficiaries of international protection
The European Parliament’s Directive 2011/95/EU aims to establish uniform criteria for identifying non-EU citizens and stateless people who legitimately require international protection within the EU, either as refugees or as recipients of subsidiary protection, and to ensure that these individuals can access a minimum set of benefits and rights across the entire EU. This aims to restrict the concerned individuals’ travel inside the EU owing to varying legal systems.
Asylum procedure regulation
In order to provide general rules for applications for granting and withdrawing refugee status as well as to safeguard those who are not refugees but would suffer substantial damage if sent back to their country of origin, Directive 2013/32/EU was enacted. It was incorporated in an effort to establish an effective, equitable, and balanced worldwide protection mechanism. The idea aims to obtain a higher degree of standardization and greater conformity in the outcomes of asylum procedures across all member States by selecting the form of legislation that is directly applicable in all member States.
Application procedure for asylum in the UK
Asylum law in the UK is governed by the Immigration and Asylum Act 1999. Just like in the US and Australia, when the government of the UK decides that a person who has filed for asylum fits the criteria outlined in the Refugee Convention, they will recognize that person as a refugee and issue them with papers proving their refugee status. However, the UNHCR office in the UK does not accept applications for asylum seekers. Typically, the UK grants refugees a five-year leave to remain as refugees. Despite the fact that their status as refugees is not restricted to five years, they must then seek further leave.
In order to seek asylum in the UK, one must go through a protracted procedure. An initial application for asylum in the UK can be lodged at the Asylum Intake Unit or upon arrival at the border (AIU). The application is often initially vetted, which includes an interview on personal information. Children asserting themselves in their own right, however, are not screened. An individual can fill out an asylum support application Form ASF1 provided by the UK government if the person has submitted an application for asylum in the UK under the Refugee Convention and is awaiting a response, if the person is the dependent of an asylum seeker, or if no application for assistance has been submitted for the person.
International laws and standards regarding asylum seekers and refugees
There are many laws that protect and grant rights to asylum seekers and refugees. Some of them are as follows:
1951 Refugee Convention and 1967 Protocol
The main legal texts that serve to protect the rights of refugees are the 1951 Refugee Convention and its 1967 Protocol. With 149 states parties to one or both, they define the term “refugee” and outline the rights of refugees as well as the states’ responsibility to protect them.
The foundational principle of international law is non-refoulment, which holds that a refugee must not be returned to a country where they would suffer severe threats to their life or freedom. Currently, this is acknowledged as an international customary law norm. The legislation mandates that states cooperate with UNHCR to guarantee the protection and upholding of the rights of refugees.
International human rights law
Refugees and asylum seekers are protected by international human rights law just like everyone else. Everyone who is on a state’s territory or under its control or jurisdiction is covered by this corpus of law. All people are born free and equal in their rights, as stated in Article 14(1) of the 1948 Universal Declaration of Human Rights that “everyone has the right to seek and enjoy freedom from persecution in other countries.” This is the most significant provision among human rights mechanisms recognizing the right to seek and enjoy asylum. Article 14(1) of the Universal Declaration of Human Rights obligates the states to uphold the law and to provide a secure and civilized environment as well as a fair process for evaluating the status of asylum seekers as refugees.
States like Afghanistan, Colombia, Spain, and others do acknowledge the right to seek and enjoy asylum, but they do so using language like “rules and regulations in effect,” which may be read as granting the legislature the authority to decide what constitutes the right. On the other hand, certain nations (Hungary, Congo, Serbia, etc.) recognize the right to seek and enjoy asylum under the 1951 Refugee Convention, while others (Italy, Poland, Romania, etc.) do so in accordance with international conventions and laws.
Some rights protected by international human rights legislation, such as those against slavery and torture, cannot be curtailed or suspended for any reason. Under specified circumstances, such as to safeguard public order or health or defend others’ rights, others may be derogated. Derogations must adhere to the law, be publicly announced, and not be used in a discriminatory manner as suggested by International Human Rights Law. It also consists of various rights that grant protection to asylum seekers and refugees from other nations. Some of them are as follows:
Non-refoulement
Non-refoulement is the duty of states not to influence or pressurize, or return, a refugee to “the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion,” as stated in Article 33(1) of the 1951 Convention relating to the status of refugees.
In the case of M.S.S. v. Belgium and Greece, 2021, it was iterated that the right to life and the prohibition against torture have been construed by both domestic and regional courts to include a ban on refoulement. The prohibition on refoulement extends to mass expulsions of refugees as well as the removal of individuals.
The right to liberty and security
The treatment of asylum seekers in the chosen nation of shelter is influenced by their right to liberty and security. Because of the circumstances in detention centres in nations like Greece, the incarceration of asylum seekers is a difficult subject.
The Council of the European Union created the Dublin Regulation to specify which state is in charge of a certain asylum seeker. The state that the third country originally entered is typically regarded as the state responsible for deciding that national’s asylum application, as stated in Article 10(1) of the Dublin Regulation. Many of these asylum applicants are therefore sent back to Greece to have their applications decided.
Right to employment
Giving asylum seekers access to the labour force can lower the cost of providing for them and boost the local economy. According to the European Commission (2003), asylum seekers have the right to apply for employment if they have waited more than a year for a judgment on their asylum request and are not held accountable for the delay. Skilled dancers, nuclear medicine technologists, labourers, overhead linesmen in the electricity transmission and distribution business, etc., are some examples of this type of employment.
Providing work to asylum seekers can increase the asylum seekers’ chances of effective reintegration in the event of a return and decrease their vulnerability to exploitation if they are allowed to stay in the host nation.
Right to family life
According to Article 23(1) of the International Covenant on Civil and Political Rights, the family is regarded as the “natural and essential group unit of society and is entitled to protection by society and the State.” Many nations allow for the granting of derivative status to dependent relatives such as spouses, children, parents, etc. concerning this right. As a result, if someone is granted asylum, their dependent family members will also be given shelter.
Access to education without discrimination is a basic human right and is necessary for the fulfillment of other rights.
Everyone has the right to an acceptable quality of life, which includes having access to food, clothing, shelter, medical care, and fundamental social services.
1969 OAU Convention governing the specific aspects of refugee problems in Africa
According to the OAU Convention, “the grant of asylum to refugees is a peaceful and humanitarian act,” and no OAU member state may see it as an “unfriendly act.” Any individual who is forced to leave their country due to “external attack, occupation, foreign domination or events significantly affecting public order in either part or the whole of his or her place of origin or nationality” is protected under the 1969 OAU agreement.
This suggests that those fleeing civil disturbances, mass violence, or war qualify for refugee status in states that are parties to the African Convention even if they do not have a well-founded fear of persecution for one of the reasons stated in the 1951 Convention.
Cartagena Declaration of 1984
To establish refugee protection in Latin America, eminent jurists and government leaders met in Cartagena, Colombia, in 1984. They established what is known as the Cartagena Declaration on Refugees, which was influenced by the 1969 OAU Convention.
The 1951 Convention and its 1967 Protocol, the principle of non-refoulment, and the significance of international collaboration in resolving refugee issues are all reaffirmed in the Declaration. It suggests that the 1951 Convention definition of a refugee be expanded to include people who have fled their country because of widespread violence, foreign aggression, internal conflicts, grave human rights violations, or other situations that have seriously disrupted public order and have put their lives, safety, or freedom in danger.
UNHCR’s strategy for simplifying the asylum process
Fair and simple asylum procedures
According to UNHCR’s handbook for parliamentarians, the integrity of state asylum systems depends on procedures based on relevant criteria of decision making. It is the duty of the states to make sure that the proper status assessment institutions are in place and that the national legislation outlines the authorities’ duties in a precise and unambiguous manner. There should be no such kind of malpractices or incompetency on behalf of the authority by which the asylum seekers and refugees had to suffer later. All countries should examine the needs of asylum seekers for international protection in accordance with a unified and condensed process to determine this.
As previously discussed, almost every country has its own autonomous and distinctive asylum process, making it challenging for applicants to follow. Asylum processes should be clear and straightforward to understand so that those who are currently at risk of persecution can apply for asylum with less confusion and hardship.
Access to adjudicating claims
Asylum seekers shall have access to processes for adjudicating their claims that are reasonable and suitable on the basis of their claims, regardless of how they enter the territory of a state. It is the duty of the States to make sure that people who don’t require international protection are handled quickly and returned as soon as possible.
Regardless of whether they have personal identification or travel papers, asylum seekers should be allowed entry into the nation and granted a provisional right to stay there until their case is finally decided. They should be given identification papers in line with Article 27 of the 1951 Convention if they don’t already have the documents.
Privacy and confidentiality
In general, confidentiality is violated when data from or related to an asylum application is given to a third party without authorization and the unauthorized disclosure is of a kind that enables the third party to connect the applicant’s identity to the fact that the applicant has applied for asylum, endangering the applicant in the process.
Therefore, unless the person in question has expressly consented to the exchange of such information, states shall avoid disclosing any data on a person’s status to the officials of another state, whether that status is that of an asylum seeker or refugee. However, if a severe criminal offense is being prevented or investigated, personal information about an application may be sent to a national law enforcement agency.
Admissibility and accelerated procedures
A state adopts an essential stage called the admissibility procedure, as it helps in deciding whether or not to take into account a claim for asylum. This step can also be used to establish which state is in charge of reviewing the facts of a claim. A state may rule an application for international protection unjustifiable through the admissibility procedure if the claimant already has an adequate defense in the first country of asylum or if the applicant has a connection with a third country that makes it sensible to assume that the applicant will travel to that country and can find safety there.
When assessing an application for refugee status, a state may also use an accelerated procedure if it believes that the application is only supported by factors that are not crucial to the judgment, the applicant is from a safe country of origin, or the applicant intentionally misleads the officials by giving false information or documents about his or her identity and nationality that might have had a bad impact on the application procedure.
Exclusion and cessation clauses
Exclusion clauses
Refugees and asylum seekers will not be granted rights and protection by another country if they are involved in heinous crimes. Article 1D, 1E, and 1F of the 1951 Convention are the exclusion clauses. As per Article 1F, applicants for refugee status are disqualified if there are “serious reasons to consider:” they have committed a crime against humanity, peace or a war crime; they have committed a serious non-political crime before applying for asylum in their host nation, or they have committed acts that are against the goals and principles of the United Nations.
The ‘Exclusion Clauses’ of Article 1F include several significant features:
International law, including regional law, is incorporated under Article 1F.
Each of the three subsections addresses severe crimes and flagrant violations of basic human rights and dignity that constitute persecution.
Through its interactions with other areas of public international law, particularly international criminal law, Article 1F has helped advance international refugee law.
Persecutors have been labeled as “undeserving” or “unworthy” of international refugee protection, according to the UN High Commissioner for Refugees. From a moral standpoint, it could be fair to claim that people who violate the human dignity of others, or who participate in the violation of the human dignity of others, are ineligible for international protection. However, it has been claimed that, as all human rights are universal, inalienable, indivisible, interdependent, and linked, it is impermissibly incorrect to declare anybody “undeserving or unworthy” of their fundamental human rights and human dignity.
Cessation clauses
After receiving refugee status, a person cannot lose that status until they apply for protection from their home country again or a third party (such as the UNHCR or the host state) exercises a cessation provision. The 1951 Refugee Convention’s rights and benefits for refugees cease upon the declaration that international protection is no longer required.
UNHCR may carry out voluntary repatriation (the act of returning to one’s nation) to facilitate the termination of convention protection. According to UNHCR legislation, “the competence of the High Commissioner” ceases to apply to a refugee when the circumstances that led to his recognition as a refugee have changed and no additional grounds remain that prevent him from utilizing the protection of his country of origin. The UNHCR runs extensive voluntary repatriation programs whenever it decides that such a transformation has taken place.
Although the duty of non-refoulement forbids states from deporting people who have been granted refugee status under international law, Article 1C(5) and (6) of the 1951 Convention permits states to order the return of individuals and groups of people when there is no longer a fear of persecution and conditions in the country of origin have improved to the point where national protection is available.
Conclusion
Nations and organizations must act resolutely to counter social ignorance and discrimination, insufficient community infrastructural facilities, and a variety of dynamic international differences that frequently create the circumstances for mass migration in the fight to encourage widespread acceptance of relocated societies of asylum seekers and refugees. Whether refugees move inside their country of origin or return to their original homes is generally irrelevant in terms of international refugee law.
Return and relocation are both seen as “durable solutions,” which, in the words of the UNHCR, is the point at which a person ceases to be a refugee and, hence, no longer deserves the protection of the 1951 Convention. Because every nation’s government has a duty to provide human rights that anybody can use, regardless of their circumstances. Governments must uphold their joint obligation to safeguard the rights of migrants, refugees, and asylum seekers.
Frequently Asked Questions (FAQs)
Are asylees or asylum seekers possible targets for deportation?
If asylum seekers take actions that disqualify them, they may be deported while seeking refuge. For committing a crime, such as an egregious felony, a person may be disqualified. They may be held under certain circumstances, and the process may be accelerated.
Who are Internally Displaced Persons (IDPs) and who helps them?
IDPs are people who leave their homes for similar reasons as refugees but do so while still inside their nation, where they are thus subject to the laws of that state. UNHCR helps the IDPs in several crises even though it has no special authority to do so.
Even if a person has been found guilty of a crime, may they still ask for asylum?
Yes, but depending on the offence, he or she could not be eligible for asylum. Any criminal background must be disclosed on the asylum application form and during the interview. If that person fails to provide this information, the immigration court will be notified of their asylum request, and they risk penalties or jail time for perjury.
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 Ms. Sushree Surekha Choudhury from KIIT School of Law, Bhubaneswar. The article gives a detailed description of the Federal Court of India and its evolution to the present Supreme Court of India.
It has been published by Rachit Garg.
Table of Contents
Introduction
We have all been to schools, no? (Of course, we have! “What kind of question is that author?”, you must be thinking.) Well, remember your school days, your Principal, and the Director of your university? We might have been fearful of them, but weren’t they an absolutely necessary part of the organization? Imagine going to a school with no principal. Who looks after the management and administration? If a teacher tomorrow punishes you arbitrarily or says something mean and demeaning, to whom would you complain? Do you feel the need for a higher authority? The need was felt in the Indian judicial system as well. The Federal Court of India (now known as the Supreme Court of India) came to become the ultimate court of appeals for cases decided by the High Courts. Just as you and I know how essential a Principal/Director is to an educational institution, the lawmakers and policymakers felt the need for a court of appeals and superior powers to administer justice in a proper manner.
The Federal Court of India was set up and inaugurated on October 1, 1937, and continued to be the supreme authority of the Indian judiciary until 1950, when the Federal Court of India was replaced by the present Supreme Court of India. In this article, we will learn about the history and timelines that have led to the Supreme Court as we have it today. We will learn about the Government of India Act (1935), which led to the establishment of the Federal Court.
History of the formation of Federal Court of India
Sir Hari Singh Gour was the first lawmaker to propose the need for a Court of final appeal in India. He suggested replacing the Privy Council with this court of appeal. He moved resolutions in this regard to the Central Legislative Assembly during the 1920s. In the 1931-32 session of the Central Legislative Assembly, this resolution was approved and passed for the establishment of a Federal Court for India. In November 1934, the Joint Select Committee of Parliament recommended the establishment of the Federal Court of India. The Supreme Court of India, as we have it today, has its traces in the Federal Court of India. It was for the first time that a supreme body and a court of final appeals were established by lawmakers in India. This system of courts has evolved through phases of history in India as:
This was followed by the establishment of the Supreme Courts of Madras (1800) and Bombay (1823) by King George III.
In 1861, the Indian High Courts Act (1861) established high courts for all provinces. This abolished the Supreme Courts of Calcutta, Madras and Bombay.
These high courts ran the judiciary in different provinces, but a need was felt to have an ultimate court of appeals. This is when the resolution was passed for the establishment of the Federal Court of India.
The Federal Court of India was established under the Government of India Act (1935).
The jurisdiction of the Federal Court of India expanded from solving disputes between provinces and the federal state to hearing appeals from the High Courts of all provinces.
Apart from the Government of India Act (1935), the Federal Courts were also empowered by the Federal Court Act (1937). This Act empowered the Federal Court to make rules and regulations to regulate the courts in India.
The Federal Court continued to be the final court of appeals in India till 1950.
When India attained independence in 1947, the Constitution of India (1949) was drafted and enacted in 1950. This also replaced the Federal Court with the present Supreme Court of India. The first sitting of the Supreme Court of India was held on January 28, 1950.
Section 200 established the Federal Court of India. It also spoke about the composition of this court. The Federal Court came to have a Chief Justice of the Court with the aid of six judges. The number of judges could be increased by the Chief Justice if deemed necessary after taking approval from the Governor-General of India.
The judges of the court shall be appointed by the Chief Justice by warrant under the Royal Sign. These judges could hold office till attaining the age of 65 years unless resigned or removed from office for appropriate reasons.
For being appointed as a judge, the following qualifications were required:
He/she should have been a High Court judge in any province or of the federal state, or
He/she was a barrister in England or Northern Ireland for 10 years or had been a member of the Faculty of Advocates in Scotland for 10 years, or
He/she has been a pleader in any High Court of India.
A person was disqualified from being the Chief Justice of the Federal Court if:
He/she was not a barrister, a member of the Faculty of Advocates or a pleader during his first judicial appointment, or
He/she has not been a barrister in England or Northern Ireland for 15 years or has not been a member of the Faculty of Advocates in Scotland for 15 years.
A person qualified and appointed to the Federal Court of India must take an oath and affirmation to the Governor-General of India before subscribing to his office, as per the Fourth Schedule of the Act.
Section 201 of the Government of India Act (1935) specified the salaries, allowances and remuneration of the judges and Chief Justice of the Federal Court.
Section 202 stated that in case the office of the Chief Justice becomes vacant, any other judge of the Federal Court is appointed to fill the vacancy temporarily until a new Chief Justice is appointed. The Governor-General of India enjoys discretion in this regard.
Section 203 made the Court a ‘Court of Record’ with its primary seating in Delhi.
Section 204 granted original jurisdiction to the Court on disputes between the provinces and the federal state on determining the legal rights with respect to the questions of law and question of fact. The Court’s judgement under original jurisdiction was considered declaratory in nature.
Sections 205-209 granted appellate jurisdiction to the Court on matters arising from disputes as appeals from the High Courts of British India. These sections determined the scope and powers of the Court under appellate jurisdiction. It also gave power to the Federal Legislature to expand the appellate jurisdiction of the Court to matters at the discretion of the Governor-General of India. The appellate jurisdiction could be decided by the Federal Court in the form of stay orders, decrees, and costs as the case may be. This was facilitated by the provisions of Section 209.
Section 210 spoke about the enforcement of the orders and decrees of the Federal Court. All directed authorities in India were mandated to abide by and facilitate the judgement passed by the court which required their involvement.
The Federal Court could send letters of request to the Ruler of State for the institution or reopening of special cases in the Federal Court or any High Court of India. The Ruler of State then facilitated this case by making orders to the appropriate courts under Section 211, if deemed necessary.
Section 212 gave vast powers to the Federal Court by stating that the decisions of the Court ‘shall be binding all across the country and on all subordinate courts.’
Section 213 granted powers to the Governor-General of India to consult the Federal Court in matters of public importance on questions of law and fact.
Section 214 granted powers to the Federal Court to make rules for the conduct of its business with the Governor-General’s approval and monitoring.
The Federal Legislature could grant ancillary powers to the Federal Court of India by the provisions of Section 215 of the Government of India Act (1935). Such ancillary powers were to be exercised in consonance with the law of the land.
Section 216 stated that the charges and expenses of the Federal Court were to be taken by the Federation of India. The Governor-General enjoyed discretion in determining and granting administrative expenses.
The Federal Court of India ran according to these provisions of the Government of India Act (1935) until 1950, when it was replaced by the Supreme Court of India.
The Supreme Court of India
Post-independence in 1947, the Constitution of India came into existence in 1950. This also replaced the former Federal Court with the present Supreme Court of India. The newly formed Supreme Court held its first sitting on January 28, 1950. The Supreme Court was given the same powers as the Federal Court had, and the decisions of the Supreme Court became binding all across India. The Supreme Court was given a crucial power, the power of judicial review. The Supreme Court could strike down the laws and rules made and enacted by the legislature or executive through the power of judicial review. This power was exercised on such acts of legislature and executive which would be inconsistent with the Constitution of India or infringes the Part III (Fundamental Rights) of the Constitution. It also exercises the power of judicial review to ensure the division of powers between the three organs of government, i.e., the executive, the legislature, and the judiciary. The Supreme Court performs these functions empowered by the Constitution of India. The Supreme Court also acts as a Court of Record through the provisions of Article 129 of the Constitution.
Constitutional provisions regarding the Supreme Court of India
Provisions for the Supreme Court of India are embedded in Part V, Chapter IV of the Constitution. This part talks about the Union Judiciary. Ranging from Articles 124-147, this part talks about the composition of the Supreme Court, qualifications and requirements for the appointment of judges to the Supreme Court, office and tenure of these judges, resignation and removal of the judges of the Supreme Court, and other provisions related to the Supreme Court of India. These provisions can be seen as follows:
Composition of the Supreme Court of India
Article 124 of the Constitution makes provision for the establishment of a Supreme Court for India. It further stated that there shall be a Chief Justice for the Supreme Court of India and seven other judges for the aid of the Chief Justice. The Chief Justice of the Supreme Court is the Chief Justice of India as the Supreme Court is the apex court of the country. The number of judges can be increased or decreased by an act of Parliament if deemed necessary. This provision has been used many times through Amendment Bills, and the Supreme Court presently has 33 judges, apart from the Chief Justice of India.
The strength of 31 judges (Chief Justice and 30 other judges as of 2009) has been further increased to 34 by the Supreme Court (Number of Judges) Amendment Bill of 2019. Parliament is further authorized to regulate this and increase or decrease the number of judges in the Supreme Court of India.
The Supreme Court of India has its seat in Delhi. It has been so from the very beginning but can be changed by the Chief Justice with the approval of the President of India. This provision is, however, optional and discretionary. It is not mandatory for the Chief Justice to do so. Article 130 contains provisions for the seating of the Supreme Court.
Appointment of judges to the Supreme Court of India
The Supreme Court judges are appointed by the President of India. The President further appoints the Chief Justice in consultation with judges of the Supreme Court and other High Courts of India as he deems fit and proper. The judges of the Supreme Court are appointed in consultation with the Chief Justice. This is a mandatory provision. The practice has been to appoint the senior-most judge of the Supreme Court as the Chief Justice of India. This practice was reaffirmed in the Supreme Court judges’ case (Second Judges’ case) in 1993.
The salaries, allowances and remuneration of the Supreme Court judges and the Chief Justice of India are determined by Parliament under the provisions of Article 125 of the Constitution.
The Chief Justice of India can appoint ad hoc judges from the High Courts to maintain the quorum of the Supreme Court if necessary. This appointment is made with the approval of the President of India and is made under Article 127 of the Constitution.
Qualifications, tenure, and removal of judges
To be appointed as a judge of the Supreme Court of India, a person must qualify the following conditions:
He/she must be an Indian citizen.
He/she should have been a High Court judge (or High Courts in succession) for 5 years, or
He/she should have been an advocate in a High Court (or High Courts in succession) for 10 years, or
He/she should be a distinguished jurist in the opinion of the President of India.
Any person possessing the above-mentioned qualifications when appointed as a judge to the Supreme Court of India has to subscribe to his office after making an oath or affirmation to the President of India or anyone on his behalf and make the following oaths:
To be faithful to the Constitution of India,
To uphold the sovereignty and integrity of India.
To be faithful to his office and perform his duties to the best of his abilities, knowledge and honesty, and
To uphold the Constitution and other laws of the nation.
Although the tenure of the judges of the Supreme Court is not expressly mentioned in the Constitution of India, they hold office until attaining the age of 65 years, unless they resign or are removed from office earlier.
A Supreme Court judge can be removed from his office by the President’s order. This is carried out after passing a resolution with a special majority in both the Houses of Parliament. A Supreme Court judge can be removed only on two grounds, i.e., incapacity and/or misbehavior. Till today, no Supreme Court judge has been impeached in India.
Office of the Supreme Court judges
An Acting Chief Justice can be appointed by the President of India under the provisions of Article 126. This is done when the office of the Chief Justice becomes vacant. The vacancy could be temporary or permanent, and the acting judge holds office until a new Chief Justice is appointed or the absent Chief Justice resumes office.
The Chief Justice of India can also appoint High Court judges to the Supreme Court to fulfill the quorum for sittings of the Supreme Court if it becomes necessary to do so. This is done under Article 127 of the Constitution.
The Chief Justice can also appoint retired judges to act as Supreme Court judges temporarily. This is done after the due approval of the President of India and as per the provisions of Article 128 of the Constitution.
The Chief Justice can make rules and conduct the business of the Supreme Court of India as per Article 145 of the Constitution. These rules are made in consonance with the Constitution and other laws of the nation. These rules are made with the approval of the President of India.
Jurisdiction of the Supreme Court of India
The Supreme Court of India primarily enjoys original jurisdiction. Empowered by Article 131 of the Constitution, the Supreme Court has original jurisdiction to determine disputes between the Centre and state(s); Centre and state(s) and state(s); or between two or more states. However, the original jurisdiction of the Supreme Court does not extend to the following:
A dispute arising from a treaty or convention signed before the commencement of the Indian Constitution,
A dispute arising out of a treaty or convention that specifically excludes the Supreme Court from exercising its jurisdiction,
Disputes relating to pensions and expenses between the Centre and states,
Commercial disputes between the Centre and states,
Recovery of damages by a state from the Centre.
The original jurisdiction of the Supreme Court also extends to the writ jurisdiction of the Supreme Court. The Supreme Court can issue writs of Habeas Corpus, Quo Warranto, Prohibition, Certiorari, and Mandamus. A citizen can reach the Supreme Court of India by way of a writ petition, filed directly under the provisions of Article 32 of the Indian Constitution for the violation of fundamental rights.
Articles 132-136 of the Indian Constitution speak about the Appellate jurisdiction of the Supreme Court. The Supreme Court has jurisdiction to hear appeals from orders and decisions of the lower courts in constitutional matters (Article 132), civil matters (Article 133), criminal matters (Article 134) and appeals by Special Leave Petition (Article 136).
The Supreme Court is vested with advisory jurisdiction under Article 143 of the Indian Constitution. The President of India can seek advice from the Chief Justice of India under the provisions of Article 143. This jurisdiction is used in matters relating to public importance where the President seeks advice from the Chief Justice on questions of law and facts. The President can also seek advice from the Chief Justice in disputes arising out of treaties and conventions made before the commencement of the Constitution. Even though the Supreme Court does not have original jurisdiction over these treaties and conventions, it is a competent court to exercise advisory jurisdiction.
Independence of judiciary
The Supreme Court has been vested with the highest degree of powers and duties in the Indian judiciary. It is the highest court of appeals. It enjoys ultimate discretion. Its decisions are binding on every citizen, body or authority within the Indian jurisdiction. It upholds the values of the Constitution and other laws of the nation. It upholds natural justice. It ensures the fundamental rights of Indian citizens are not infringed. With all these powers and responsibilities, the judiciary needs to be free from bias and influence to be able to do complete justice. This is why the Indian Parliament has granted the right of independence to the judiciary. This ensures that the judiciary is free from the other organs of the government. The Supreme Court’s decisions are binding, and the Court is not answerable to the executive or the legislature. The Supreme Court can even strike down laws made and enacted by the other two organs of the Government and this decision shall be binding on them. The Supreme Court’s independence is reflected in the following provisions where the Court enjoys final discretion:
Mode of appointment of judges and their tenure of office,
Rules on the service conditions of the judges,
Expenses charged by the Courts from the Consolidated Fund of India,
It is a rule that the judges’ conduct cannot be subject to discussion and debate,
The judiciary puts a ban on further practice by the retired judges,
Power to punish for contempt of Court, and
Absolute jurisdiction in matters referred to the appropriate courts.
Conclusion
The Indian judiciary is as old as the history of civilization in our country. It has been through phases of evolution and development to become what it is today. For the longest time, the Federal Court of India exercised its powers as the highest court of appeals in India. This was during the British Raj in India. The Government of India Act (1935) established the Federal Court of India to be a final court of appeals and to enjoy higher powers over all the provincial courts (High Courts) of British India. This idea was carried forward even after independence, and the Federal Court was replaced by the Supreme Court of India by the Indian Constitution in 1950. Ever since, empowered by Article 135, the Supreme Court enjoys the powers that were vested in the Federal Court of India and upholds justice in the country.
Frequently Asked Questions (FAQs)
How can a judge of the Supreme Court be removed?
One of the two grounds (misbehaviour or incapacity) has to be proven for removing a judge of the Supreme Court. A resolution has to be passed by both Houses of Parliament with a special majority, followed by the approval of the President. The President then removes the judge from his office.
What is the average salary and remuneration of Supreme Court judges?
On an average, the Chief Justice of India receives a remuneration of INR 1 LPA and other judges can receive up to 90,000 INR.
What happens after a judge’s retirement?
A retired judge is banned from practising in any court of law after retirement. The Chief Justice can request a retired judge to fill the quorum in a Supreme Court sitting under Article 128. This is done only with the due consent of these retired judges of the Supreme Court or the former Federal Court of India.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article discusses the concept of the right to safety in context of not only consumer rights and hazardous waste but also a range of aspects affected by its non-implementation.
One of the many issues caused by urbanisation in emerging nations is increased exposure to environmental risks. In places vulnerable to natural disasters, effective risk reduction has a long history. However, attempts to lower risk have been outpaced by the size of urban vulnerability and the rate of its rise. Other significant barriers include complex socioeconomic and institutional environments. Scaling up is a particularly difficult task since, up until now, most urban risk reduction projects have been small-scale, one-time events that frequently concentrated on a single risk factor or hazard. To encourage broad-based, multidisciplinary catastrophe risk reduction and to integrate mitigation into development planning, new strategies are required. In both urban and rural contexts, mainstreaming could be facilitated by the idea of a ‘right to safety’. The concept has been addressed in broad strokes. However, there are issues with its practical implementation. It has not advanced much outside of academic circles as a result of this.
Another viewpoint in relation to the concept of ‘right to safety’ is in relation to consumer rights. Only when there is a link between those who consume a product or service and those who offer it, can there be a ‘right to safety’. Each nation’s Constitution guarantees that its citizens have a right to life and establishes the relationship between the state and its people. This right to life translates into the right to a life free from crippling harm. Similar to this, when a private company offers products or services, the customer expects there won’t be any negative effects from doing so. This article discusses the broad right to safety from different angles, thereby specifically highlighting its perception in India as well as in the international domain. As this topic is highly restricted only to consumer protection largely, this article aims to help readers get a divergent view about the not much discussed right to safety.
What is the right to safety
The right to safety can be defined, quite simply, as follows, “everyone has the right to the highest attainable standard of protection against natural and man-made hazards.” Other economic, social, and cultural rights recognised in international human rights accords lend weight to this notion. Like other rights, the right to safety carries responsibilities to be fulfilled, largely on the part of governments but also on the part of other parties.
Although the internet and web surfing make it obvious that the context of the right to safety is solely associated with consumers’ rights, it is necessary to understand first the requirement that this right holds amidst a list of recognised rights. ‘Safety’ signifies ‘protection’ or ‘safeguard’, hence the right to safety signifies the right to be protected. Now, why do we need a right to protect ourselves when we already have many recognized fundamental rights enshrined in the different constitutions across a variety of nations, seeking to protect our freedom?
The answer is simple in this regard. We, as individuals, require the right to safety so as to be standing on a concrete base of self-preservation so as to exercise the other guaranteed and enforceable rights. The reference to consumers’ interests is made when talking about the right to safety because a consumer has a right to be protected against the marketing of products and services that endanger life and property. The goods and services obtained should not only satisfy their short-term demands but also their long-term objectives. Customers should demand both the product quality and the warranty of the goods and services before making a purchase. They should preferably buy high-quality products with labels like ISI or AGMARK.
But the subject matter of the right to safety is divergent enough to include the right to be protected from bodily harm, hazardous goods, data privacy infringement, criminals intending to inflict harm, etc. Although not an expressly mentioned right, the right to safety has been welcomed within its ambit by several rights in recent times. The article has therefore sought to incorporate every known aspect of this right.
Need for right to safety
The need for a right to safety has been encapsulated in the points provided hereunder:
In a culture where people feel the need for a standard on which to base an actionable claim for protection against physical, social, or emotional harm, the need for creating a right to safety emerges. Additionally, when societal agreement and action are established, this demand is strengthened. People used things, lived in houses, and were surrounded by an environment that they helped create, either individually or as a community, in the past, and they took responsibility for any harm or injury that resulted from those arrangements. However, contemporary structures do not let us live autonomously or in isolation from others.
Regular activities frequently hinder making personal decisions. For instance, the majority of us are unable to pick the time or route we take to get to work. Most of us utilize technologies that were created by large, often unaccountable corporations and live in homes that were designed and constructed by others. We also dare not speculate on the dangers present in the chemicals and other goods we buy. Because of this new stage in human history, we must create a new set of rights to shield us against unjustified harm.
Without a societal and political understanding of the ethical and moral responsibilities of the state and civil society to ensure that all individuals have a right to life in accordance with currently available knowledge and technology, systems that ensure a life safe from injury cannot be put in place. This need for a right is underscored by research that has shown that “educating” people to ensure their safety has serious limitations and that there is a large gap between knowledge and behaviour.
This is especially true in circumstances where we are unable to choose the individuals who will participate in specific activities, such as while performing household tasks, using public transportation, or in the majority of our workplaces. The population, under certain circumstances, may also comprise people who are preoccupied with any of the following on any given day:
Those who are unable to focus on the task at hand because they have just experienced a personal loss or disappointment, such as the death of a loved one, the loss of a job, failing an important exam, suffering financial loss, etc.
Those who are preoccupied with issues in close friendships, family ties, or marriages.
People who are drinking alcohol or using drugs or pharmaceuticals that affect behaviour or perception, as well as those who are both.
Children whose cognitive and motor abilities make it challenging for them to comprehend or adhere to instructions.
Elderly adults with compromised movement and cognitive abilities.
People with psychological disorders may not be able to perform as intended but cannot be prohibited from engaging in a certain activity.
Consequently, we have a civic and moral obligation to create our laws, environments, and goods with people in mind who can act safely and easily without having to give up their ability to earn a living and pursue their goals and other societal responsibilities. Systems need to be made with caution, not just for ‘regular’ individuals, but also for those who belong to any of the above-mentioned groupings. Such patterns, laws, and regulations would make it less likely for people to harm one another or themselves, even when someone makes a mistake. Only until safety is acknowledged as a fundamental human right will such improvements be implemented in a systematic manner. communities and is not just reliant on the willingness of strong organisations.
This first proclamation supports the idea that safety is a fundamental human right and is a crucial tool for accident prevention and safety promotion. It describes additional actions that must be completed to create a charter on a person’s right to safety.
Individuals, civil society organisations, and citizen organisations can demand safer goods, safer working and living circumstances, and a safer environment to live in by adopting these agreements, declarations, and charters. Governments and courts in numerous nations have put in place safety standards, laws, and enforcement procedures in response. The strategies used to combat infectious and contagious diseases, as well as hunger, are not the same as those used to make life safer.
Contrary to policies based on a notion of rights, the majority of initiatives to promote safer products are corrective actions. Although it may seem that the right to life already includes the right to a life that is free from crippling injuries, decision-makers and the general public have not yet used this right to influence policy in this area. As a result, it is now crucial to advocate for the fundamental human right of everyone to live in a world free from dangerous injuries.
Finally, the various UN human rights agreements ratified by various nations help to clarify the pertinent global obligations. These underlying accords are only made apparent in the Montreal Declaration. This can assist people in realising that a right to safety is just as legitimate as a right to clean air or a right to live in a world free of smallpox. The Montreal Declaration should be acknowledged as a beginning point for establishing a people’s right to safety as a fundamental right supported by individual governments and by the UN in order for injury control to be regarded seriously as an international public health concern.
United Nations guidelines on safety
In addition to providing governments with practical support and guidance for developing national consumer protection measures like legal systems, safety regulations, national or international standards, voluntary standards, and the maintenance of safety records to ensure that products are safe in use, the UN guidelines provided the principles of consumer rights with necessary legitimacy. The Guidelines said that because they are in charge of delivering products to the market, suppliers, exporters, importers, retailers, and others would ensure that the commodities in their custody were not made dangerous by inappropriate handling or storage. Additionally, the consumer should receive training on how to use products properly and be made aware of any potential risks. If manufacturers or distributors learn of unforeseen risks after products are put on the market, appropriate policies should ensure that they immediately notify the public and the appropriate authorities.
Governments ought to think about how to make sure that people are appropriately educated about these risks. When possible, customers should be given access to critical safety information through symbols that are universally recognised. The government should establish regulations that require makers and distributors to replace, modify, or substitute another product in the event that a product is proven to be substantially flawed and/or to pose a significant and serious risk, even when used appropriately. The customer should receive fair compensation if it is not possible to comply with their request within a reasonable amount of time.
Safety standards laid down by the United Nations
The United Nations Guidelines for Consumer Protection (UNGCP) emphasised the value of standards for the security and caliber of consumer goods in its guidelines in 1999. It is important to periodically examine national standards and laws governing product safety and quality, to make sure they are, to the greatest extent feasible, in compliance with established international norms. Safety standards are designed to specify protection against a variety of risks, including mechanical, electrical, thermal, fire or explosion, chemical, biological, and radiological risks.
Who is responsible for enforcing the right to safety
The question as to who is ultimately in charge of guaranteeing public safety and reducing risks (whether they are man-made or natural) has no easy solution. People expect the government, for example, to issue and enforce standards and laws to ensure the safety of their houses and the structures in which they work. However, society as a whole also places a large portion of the responsibility on builders, architects, and the general public.
The State
International human rights treaties are aimed towards the State, which should uphold these rights. States voluntarily agree to such agreements and make a commitment to uphold their obligations. This duty is sufficiently obvious when it comes to political and civil rights.
Every country that ratified the International Covenant on Civil and Political Rights “undertakes to respect and to ensure to all individuals residing in its territory and subject to its jurisdiction the rights recognised in the present Covenant, without difference of any kinship”.
Although the concept of gradual realisation has drawn criticism for being too nebulous, absolving states of responsibility and transforming rights into aspirations, it may equally be argued that it simply reflects the fact that such rights cannot be realised quickly.
The “full realisation of the rights” is a goal that governments are dedicated to pursuing, and they are expected to do it as soon as feasible.
The non-state actors
Non-state actors’ positions are debatable and complicated. Individuals, families, communities, civil society organisations, and the private sector are all said to have obligations to ensure that rights are upheld or realised.
However, because they are not parties to the international system of legal ratification of rights, they cannot be held accountable on an international scale in the same way that states can. None of these organisations are required by law to assist developing nations in upholding their legal duties or to provide certain levels of care in times of need.
Self-regulation is favoured in reality, particularly among NGOs. For example, agencies working in humanitarian relief in the 1990s launched their own programmes to promote accountability and improve standards, namely, the Red Cross Code of Conduct, the Sphere Project, and the ombudsman projects.
The concept of a right to safety is likely to be challenged by those who fear it will increase their own liability (e.g. government and the private sector).
Attaching a global perspective to the right to safety
Some international human rights treaties do not specifically mention the right to safety, but some do, either tacitly or explicitly. Certain aspects are covered by the three major instruments of human rights; the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (CCPR), and the International Covenant on Economic, Social and Cultural Rights (CESCR). These aspects can be grouped into six main kinds:
Right to security in general
The supreme right and the cornerstone of all other human rights is the right to life. Some codes start off with a general declaration of the right to life, liberty, and personal security. These are meant to protect the rule of law from outsiders invading one’s privacy and security. Although it could be claimed that they do so in some circumstances, such as when human negligence or malice permits dangers to cause death or harm, they do not really suggest a right to protection against a wider variety of hazards.
Right to economic, social, and cultural development
This is the right to have a say in one’s own decisions in the areas of commerce, society, and culture (as well as to self-determination and freedom of political choice). Individual liberties in these domains may be restricted by external shocks like risks. Therefore, it is possible to claim that failing to provide enough protection against risks is equivalent to failing to defend rights, but this is a weak argument.
Right to an adequate standard of living (including the right to housing)
A number of its components are listed in human rights agreements, including access to enough food, clothing, shelter, healthcare, social services, and social security. Housing is one of these elements that is very important for safety. Some human rights documents include the idea of “adequate” housing. Additionally, the occupants’ physical safety must be ensured. Although this is sufficiently explicit, the interpretation does not now have the same authority as an express statement in a global human rights document.
Freedom from hunger
Another element of the right to an adequate standard of living is access to sufficient food. The Covenant on Economic, Social, and Cultural Rights, 1966, was a turning point in commitment because it affirmed everyone’s right to be free from hunger and laid out concrete steps to increase food production and distribution in order to realise this right.
Right to health and safety at work
As employers are obviously accountable, both morally and legally, for ensuring it, safety in the workplace is typically viewed as a right and, moreover as a right that can be enforced.
Right to health
The Covenant on Economic, Social, and Cultural Rights’ commitment to the highest practicable standard of physical and mental health lends a strong endorsement to the right to safety. Evidently, hazards are a significant contributor to illness and mortality. States must take action to reduce illness risk and enhance workplace and environmental hygiene. It is merely a small step from there to the requirement for measures to deal with dangers. The interpretation of the right to health is that it is “an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition, and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health.” It is important to place attention on the fundamental factors affecting health since they are directly related to the concept of a right to safety.
Hereunder, two developed nations of this progressive world, namely, the United States and the United Kingdom, have been placed through the lenses of the right to safety so as to understand how structurally they identify this right and how India, being a developing nation, can adapt to the pros of the systems governing the right to safety in the developed nations.
Attaining right to safety : possibilities and realities
Absolute security is not possible. Safety is also hard to define because people’s perceptions of what constitutes acceptable risk and security levels vary and are frequently subjective. In situations when the actual nature, magnitude, and extent of danger are uncertain or contested, decisions about risk and safety may need to be made. The concepts of “adequacy” and “highest attainable standard” are two potential solutions to these issues.
Adequate safety
As we have seen, most people agree that everyone has the right to “adequate” food and housing. Can this be defined in a meaningful way, that is, one that establishes certain fundamental norms while taking into account the range of needs and expectations among people? This is conceivable, and the history of the right to food offers a plausible parallel for how the right to safety might be interpreted. The specific definition of “adequacy” is greatly influenced by the social, economic, cultural, climatic, ecological, and other variables that are in place. However, there is a “core content” to the right to adequate food, which denotes “the accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other human rights” and “the availability of such food in ways that are free from adverse substances and that are acceptable within a given culture.”
Highest attainable standard of safety
The concept of the “highest attainable standard” is also put forth by the Committee on Economic, Social, and Cultural Rights. Everyone has the right to the highest standard of physical and mental health that is reasonably attainable, according to the General Comment on the Right to Health published in 2000. As a result, states are required to take the necessary steps for, among other things, “the prevention, treatment, and control of epidemic, endemic, occupational, and other diseases.” It’s important to note that the General Comment acknowledges that perfect health cannot be promised.
A complete state of physical, mental, and social well-being is not what is meant by “health.” The right to health must be interpreted as “a right to the enjoyment of a variety of facilities, goods, services, and situations necessary for the fulfilment of the greatest possible quality of health,” rather than as “a right to be healthy.” A person’s biological and socioeconomic preconditions (such as hereditary characteristics, individual vulnerability to illness, and the choice of unhealthy or risky lifestyles), as well as the state’s resources, must be taken into account when considering the maximum attainable quality of health.
Right to safety in the United States of America
The consumer movement emerged in the United States at the beginning of the 19th century, and the Donald C. MacPherson caseadded significantly to this development by raising consumer consciousness. The New York Court of Appeals noted in this decision that a car manufacturer was required to make up for damages suffered by a consumer when one of the automobile’s wheels collapsed due to a defect. Additionally, the maker was found to have been negligent by the court because a reasonable inspection may have found the problem. The Consumer Product Safety Act was passed in 1972.
Right to safety under the Occupational Safety and Health Act, 1970 (OSHA)
To stop workers from getting killed or suffering other types of harm at work, the Occupational Safety and Health Act of 1970 (OSH Act) was passed. According to the legislation, companies are required to give their workers safe working environments. The Occupational Safety and Health Administration (OSHA), which establishes and upholds protective workplace safety and health regulations, was established by the OSH Act. Additionally, OSHA offers guidance, instruction, and support to both businesses and employees.
Workers have a right to safe and healthy working conditions under the OSH Act. Employers have a responsibility to offer safe workplaces free of known hazards that could harm their workers. Additionally, this law grants significant rights to employees to take part in initiatives that guarantee their protection from dangers in the workplace.
A safe workplace must be provided by the employer. Employers MUST obey all OSHA safety and health regulations and provide their workers with a workplace free from major hazards. Safety and health issues must be identified and fixed by employers. In addition, OSHA mandates that employers try to eliminate or reduce risks before using personal protective equipment, such as masks, gloves, or earplugs. Examples of effective changes in working conditions include switching to safer chemicals, enclosing processes to trap dangerous fumes, or using ventilation systems to purify the air.
OSHA extends to the following categories of people:
Private sector workers: The majority of workers in the country fall within OSHA’s purview. Through Federal OSHA or an OSHA-approved state plan, OSHA covers the majority of private sector companies and employees in all 50 states, the District of Columbia, and other U.S. jurisdictions. The federal OSHA programme must be at least as effective as state-run health and safety programmes.
State and local government workers: State and local government employees are not covered by federal OSHA, but if they work in a state that has an OSHA-approved state plan, they are still protected under the OSH Act.
Federal Government Workers: Federal organisations are required to follow the same safety and health regulations as for-profit businesses. OSHA monitors federal agencies and addresses worker complaints, even though it does not impose fines on them. OSHA regulates the United States Postal Service (USPS).
OSHA does not extend to those who are self-employed, immediate family members of farm employers and those whose workplace hazards are regulated by another federal agency (for example, the Mine Safety and Health Administration, the Department of Energy, or the Coast Guard).
When it is impossible to entirely eliminate a risk or lower exposures to a safe level, personal protection equipment such as respirators, goggles, earplugs, gloves, and other items are frequently employed on their own or in conjunction with other risk-reduction techniques. Most protective equipment must be free of charge from employers. Employers are accountable for understanding when protective equipment is needed.
Many OSHA regulations call for businesses to test their workplaces to see if their employees are being exposed to dangerous quantities of hazardous materials like lead or asbestos, as well as high levels of noise or radiation. Exams of this nature are referred to as exposure monitoring. OSHA gives workers the right to get the results of these tests.
Employers in higher-hazard industries with more than ten employees are required to maintain accurate and comprehensive records of work-related injuries and illnesses under OSHA’s Recordkeeping Rule. (Such records are not needed to be maintained in some low-hazard workplaces, such as offices.) Any severe work-related illness or injury must be reported by the employer on OSHA Form 300. Serious injuries or illnesses necessitated medical attention beyond first aid, restricted employment, or time off from the workplace.
It is always advisable for employees to alert their employer, if at all possible, if they think the working environment is harmful or unhealthy. A hazardous working condition is something they can report to OSHA at any time. They shouldn’t, however, quit the job site just because they have complained. They may have the legal right to refuse to work in a position where they would be exposed to a hazard if the condition plainly poses a risk of death or significant physical harm, there is not enough time for OSHA to inspect, and, if at all practicable, they have informed their employer of the condition.
Examples of OSHA standards include requirements to:
Offer fall protection by way of a safety belt and lifeline.
Prevent cave-ins in trenches.
Ensure the security of personnel entering limited areas like grain bins or manholes.
Prevent being exposed to loud noises that can harm hearing.
Install guards on equipment.
Prevent exposure to dangerous concentrations of chemicals like lead and asbestos.
Make respirators and other necessary safety equipment available to employees (nearly always free of charge).
To avoid skin punctures or cuts that could expose healthcare personnel to contagious diseases, give them sharp objects with safety features like needles.
Train employees about risks and self-defence techniques using language and vocabulary they can understand.
The role of the Consumer Product Safety Commission (CPSC)
The Consumer Product Safety Act, passed by Congress in 1972, established the U.S. Consumer Product Safety Commission (CPSC), an independent federal regulatory organisation. The primary responsibility of the CPSC is to protect the public from unreasonable risks of injury that could occur during the use of consumer products. They have authority over a vast array of consumer goods, including coffee makers, toys, and lawn mowers. However, other federal authorities are in charge of other product categories. For instance, the Food and Drug Administration is in charge of food, drugs, and cosmetics, the Department of the Treasury is in charge of alcohol, tobacco, and weapons; and the Department of Transportation is in charge of automobiles, trucks, and motorbikes.
CPSC works to reduce the risk of injuries and deaths from consumer products by:
Collaborating with businesses to create voluntary standards.
Establishing and enforcing requirements, thereby prohibiting consumer goods if none exist would effectively protect the public.
Collecting product recalls and arranging for their replacement, repair, or refund.
Investigating potential product dangers.
Educating and enlightening customers through the media, local, state, and private groups, as well as through responding to their questions.
Even though it is a separate federal regulatory body, the CPSC does not have authority over all consumer goods. Nevertheless, the CPSC oversees almost 15,000 different categories of consumer goods.
For instance, in 2004, it had an average response time of under 6 days. In contrast, the agency’s typical response time in the late 1980s was close to 50 days. The CPSC also introduced fresh programmes in 2004 to handle the rapid growth of e-commerce. The most well-known of these initiatives is Operation SOS (Safe Online Shopping), in which agency representatives look into consumer goods that are offered for sale illegally or in a dangerous manner online. To help small businesses comply with product safety regulations more easily, the CPSC appointed a Small Business Ombudsman in 2004. This individual serves as their single point of contact for information and support.
Rarely, when the manufacturer or distributor is unable or unwilling to act decisively to fix defective products, the agency orders a required recall. Recalls for products like bicycles, infant strollers, propane tanks, and electric chargers were announced in 2018.
SaferProducts.gov, a public database, contains details on thousands of items’ recalls. A representative for the organisation says, “consumers, child service providers, medical experts, government officials, and public safety organisations can all file reports of injury (Reports) concerning consumer products through SaferProducts.gov. The reports will be distributed to manufacturers (including importers) and private labels listed in the reports, and they will be given the chance to comment on them. Anyone can search completed Reports and manufacturer comments online at www.SaferProducts.gov.”
The Pool Safely national public education campaign from the CPSC collaborates with organisations around the nation to prevent child drownings and entrapments in swimming pools and spas. Additionally, the organisation runs an ATV Safety Info Centre that advises users to keep all ATVs off of paved public roadways. According to the agency spokeswoman, there are about 650 fatalities and 100,000 injuries annually involving ATVs.
Five commissioners make up the Consumer Product Safety Commission (CPSC), each of whom was chosen by the President of the United States with the approval of Congress. The head of the Commission is chosen from among them. With regional offices in Chicago, New York, and San Francisco as well as field offices in several cities across the nation, the CPSC has its main office in Bethesda, Maryland. The CPSC also maintains a toll-free Consumer Product Safety Hotline (1-800-638-CPSC).
Right to safety in the United Kingdom
The Health and Safety at Work etc. Act 1974 serves as the cornerstone of British health and safety law. The Act outlines the general obligations that both employers and employees have to abide by in maintaining relationships with one another as well as with that of the general public and other employees. According to the Act, these obligations are only required “to the extent that is reasonably practicable.” In other words, an employer is not required to take precautions to eliminate or minimise risk if doing so would be technically impossible or if doing so would be prohibitively expensive, time-consuming, or difficult given the risk. Here, the law mandates employers to do what prudent management and common sense would already lead them to do, that is assess the risks and take appropriate action to address them.
What employers must undertake to manage health and safety under the Health and Safety at Work Act is generally more clearly stated in the Management of Health and Safety at Work Regulations 1999 (the Management Regulations). They apply to every aspect of work, just like the Act. A risk assessment is the key obligation for employers. Employers with five employees or more are required to document the key outcomes of the risk assessment. Risk evaluation should be simple in a straightforward environment, like a standard office. If it involves significant risks, such as those present in a nuclear power plant, chemical plant, laboratory, or oil rig, then it should only be complicated.
Many of the health and safety laws in Britain today have their roots in European legislation. Member States have the option of approving proposals from the European Commission, after which they are in charge of incorporating them into national legislation. The foundation of contemporary health and safety legislation in our nation, including most of what comes from Europe, is the concept of risk assessment.
Over the past twenty years, the Health and Safety Commission and its operating arm, the Executive (HSC/E), have modernised the framework of health and safety law. Their objectives are to safeguard others, primarily the public, who may be exposed to risks from work activity as well as to ensure the health, safety, and welfare of employees. HSC/E implements various strategies based on assessing and limiting risk after conducting thorough consultations with those who would be impacted by their legislative proposals.
Right to safety in India
As consumers, we are often concerned about our finances, choices, health, and personal safety. Sellers’ dominance over the market stems from their perception of consumers as a weaker group. Market research shows that in recent years, inaccurate or deceptive marketing, claims, bargaining, offering gifts, prizes, competitions, and hoardings to entice customers have all had an impact. The Indian government firmly believes that social justice and economic prosperity cannot be realised without a safe, clean environment and healthy working conditions, and that a safe, clean environment is also recognised as a fundamental human right. For the avoidance and promotion of such measures, education, training, consultation, and the exchange of information and good practices are crucial.
Right to safety under the Indian Constitution
The Supreme Court of India, with the assent of the President of India, created the Supreme Court (First Amendment) Rules, 1990, in order to carry out the powers granted to it by Article 145 of the Indian Constitution and all other powers empowering it in this regard. Today, internet marketing is extremely dominant, necessitating the appropriate application of the Consumer Protection Act, 1986, particularly in this field. Customers in today’s time are making a purchase after viewing a picture on a screen and placing their trust in the vendor’s claimed specifications.
The Indian Constitution gives specific guidelines for people’ rights and establishes the Directive Principles of State Policy, which provide a direction for the government’s actions. The government is committed to regulating all economic activities for the management of safety and health risks at workplaces and to providing measures so as to ensure safe and healthy working conditions for every working individual in the country. This commitment is based on these Directive Principles as well as international instruments. The government is aware that worker health and safety contribute to economic growth as well as productivity. Assuring a high quality of safety and health at work is as crucial to successful business operations for both emerging and established industries as is prevention.
Although right to safety has not been expressly talked about under any provision of the Indian Constitution, the divergent ambit of Article 21 of the Constitution does incorporate the right within itself.
Right to safety as a consumer right
Even though business people are conscious of their social obligations, we frequently see instances of consumer exploitation. As a result, the Indian Government grants the following rights to all consumers under the Consumer Protection Act, 1986, namely, the rights to safety, information, and choice, as well as the rights to be heard or to be represented, to seek redress, and to consumer education. It is crucial to organise, give market information, safeguard against deceptive advertising, maintain physical safety, and educating consumers about their fundamental rights in order to uphold the same.
In 1986, India’s Consumer Protection Act (CoPRA) was enacted. It is a kind of social legislation created to guard consumers from being taken advantage of by producers, dealers, and traders. The Consumer Protection Act of 1986 protects a number of consumer rights, including the right to safety under Section 6, which applies to a wide range of goods and services that, as a result of technical advancements, are readily available on the market and call for careful handling. Some of these products require technical expertise to utilise. It’s possible that many customers don’t know how to use the products safely. They might also lack the technical expertise needed to evaluate the safety features of goods and services. Therefore, from the perspective of the consumer, product safety is of the highest significance.
Consumers have the right to protection against the marketing of goods and services that endanger life and property, and this right is crucial for a safe and secure lifestyle. This right entails taking into account both the consumer’s immediate needs and long-term interests. Pressure cookers, gas cylinders, and other electrical appliance manufacturing flaws can occasionally put customers’ lives, health, and property at risk. The customer is shielded against the sale of such harmful goods or services by this right to safety.
While deciding on the case U.P. Power Corporation Ltd. & Ors v. Anis Ahmad (2013), the Supreme Court of India went into great detail to explain the definition of ‘complaint’ under Section 2(1)(c) and ‘consumer’ under Section 2(1)(d) of the Consumer Protection Act, 1986. Additionally, the Apex Court emphasised the rights of consumers towards safety and stated that in order to exercise the right, consumers can use due diligence and submit a complaint against the service provider who has harmed or caused injury to the former.
Therefore, a complaint for a grievance suffered because of unfair trade practices or restrictive trade practices, a defective good or service, a deficiency in services, hazardous goods or services, a price that is higher than the price set by any law, etc., can only be made with regard to the aforementioned aspects. Customers have a right to have their health and safety protected from the products and services they purchase. They shouldn’t be given products or services that could endanger their health or safety.
Consumer protection and promotion have become more important as a result of the global economy’s growing interconnectivity and the worldwide nature of many corporate operations. Consumers are now looking for more value for their hard-earned money in the shape of higher-quality products and better services. It is true that advances in modern technology have had a significant impact on the standard of living, accessibility, and security of goods and services. However, the truth of the situation is that manufacturers and retailers continue to use unfair and constructive business methods against their customers. With the stated goal of promoting international enforcement cooperation among member States and encouraging the sharing of consumer protection experiences. The Intergovernmental Group of Experts on Consumer Protection Law and Policy has been established to monitor the implementation of the guidelines, provide a forum for consultations, produce research and studies, provide technical assistance, conduct voluntary peer reviews, and periodically update the UNGCP.
There are numerous laws that protect our right to safety, which can be broadly divided into those that establish requirements for the quality of goods and services as well as those that are designed to protect our physical well-being. The main laws for each category are listed below:
The Food Safety and Standards Regulations 2011
The Food Safety and Standards Regulations of 2011 are overarching rules that establish standards for all possible food categories while safeguarding customers from tainted food. This law is really thorough. For instance, it specifies the precise amounts of milk fat and solids that should be present in cow and buffalo milk from each Indian state. It specifies the moisture content of even foods like toffees and soup powders and provides guidelines for the production of every type of oil as well as the maximum allowed amount of sodium chloride in pickled olives, among other things. On their website, the Food Standards and Safety Authority of India has published a regulation that is over 700 pages long and is extremely complex. There is a good probability that any food item you can think of will turn up in a word search. The difficulties in implementation have involved conducting regular checks to determine whether these requirements are being met.
Bureau of Indian Standards 1986
The Bureau of Indian Standards 1986 (BIS) is the other piece of legislation in this area. Not just food, manufacturers must voluntarily notify the bureau that their goods or services are prepared for certification and to receive the ISI (Indian Standards Institute) seal of quality. There have been allegations of ISI-marked products being of poor quality or of standards sliding after gaining the certification, and the voluntary nature of the law for most commodities leaves many people off the hook.
Standard Certification Marks
The Bureau of Indian Standards is essential in developing safety and quality standards. BIS regularly communicates with a variety of governmental and non-governmental organisations. Following conversations with various organisations, the Bureau promotes the standards and ISI marks by hosting seminars, taking part in seminars, and using print and electronic media. A standard or certification mark on the product serves as an assurance of its user’s safety. It guarantees the product’s safety against health risks and serves as proof that it has passed a series of rigorous testing.
Drugs and Cosmetics Act, 2008
The Drugs and Cosmetics Act of 2008 has a weak definition of cosmetics. It states that “a cosmetic shall be judged to be adulterated if it contains any dangerous or toxic substance which may render it harmful to health.” It is necessary to specify and update the list of hazardous substances. Western watchdogs’ tests have revealed that previously widely acceptable chemicals used in cosmetics are now dangerous. The poorly written and inadequately worded cosmetics section of the Act doesn’t even distinguish between coloured and non-colored cosmetics, a fundamental distinction in the sector. Hence, an Act filled with loopholes also jumps on the wagon when it comes to being legislation upholding the right to safety.
The National Consumer Disputes Redressal Commission
In order to encourage consumer awareness, the Consumer Protection Act of 1986 requires the establishment of Consumer Protection Councils at the Centre as well as state and district levels. In 1988, the National Consumer Disputes Redressal Commission (NCDRC), an Indian quasi-judicial body, was established. The National Consumer Disputes Redressal Commission has the jurisdiction to hear a complaint valued at more than one crore, and it also has appellate and revisional jurisdiction over decisions made by state commissions or the district forum, as the case may be. This is in accordance with Section 21 of the Act. According to Section 23 of the Consumer Protection Act of 1986, anyone who is dissatisfied with a decision made by the NCDRC has 30 days to file an appeal before the Supreme Court of India.
Right to physical safety
While there are many laws in this category, a few frequent ones have been listed hereunder:
Lifts Act
To ensure that elevator journeys are safe, each state’s Lifts Act was established. Among other regulations, lifts must be licenced, regularly maintained by the owner, followed by a lift inspector, and the certificate of safety must be posted within the lift. According to a news article published in the Times of India newspaper in May 2012, 8% of the elevators in Bangalore were not permitted. After a young man was fatally crushed in a residential complex lift in Greater Noida in July 2011, it was discovered that the Capital’s neighbouring cities of Noida and Greater Noida were blissfully exempt from any Lift Act.
BIS
Since there is no rule requiring amusement parks or water parks to follow any safety standards, there are many tales of terrible incidents there. The BIS merely provides instructions to amusement park operators and ride manufacturers. That is a significant error in a field where lives can be lost and frequently are.
Indian Railways Act, 1989
Commissioners are required by the Indian Railways Act of 1989 to check new lines, inventories, and warehouses, as well as any other element that can jeopardise the security of passengers.
Right to safety under transportation of hazardous materials
Due to increased worker mobility and the number of people working for many companies concurrently or back-to-back, special attention must be given to hazardous operations and employees in risky situations like migrant workers and other vulnerable categories of employees. Serious risks to safety, health, and the environment are posed by the growing use of chemicals, exposure to physical, chemical, and biological agents with unknown hazards, indiscriminate use of agrochemicals like pesticides and agricultural machinery, industries with high accident risks, the effects of computer-controlled technologies, and the alarming influence of stress at work in many modern jobs.
The main goal of the National Policy on Safety, Health, and the Environment at Work is to not only ensure that a high level of occupational safety, health, and environmental performance is achieved through proactive approaches and to eliminate the incidence of work-related illnesses, fatalities, disasters, and loss of national assets, but also to improve employee and societal well-being. Clear national goals and objectives will serve as the foundation for the coordinated national effort that will be used to make the essential improvements in this area. The government firmly believes that creating and upholding a national culture of preventative safety and health is essential. The following requirements must be met in order to create such a culture and enhance workplace health, safety, and the environment:
Establishing a legal framework for occupational safety and health in all areas of industrial activity, including the construction industry, and developing effective compliance monitoring, enforcement, and incentive programmes.
Delivering technical and administrative support services.
Giving employers and workers a system of incentives to meet greater health and safety requirements.
Establishing a system of non-monetary rewards for improvements in health and safety.
Building, expanding, and offering effective control methods for research and development in emerging risk sectors.
Putting greater emphasis on prevention tactics and tracking performance via an enhanced data gathering system for work-related illnesses and injuries.
At workplaces in many sectors, developing and providing the necessary technical people and expertise in the areas of safety, health, and the environment is crucial.
Encouraging other pertinent national policy papers to prioritise including improvements to worker health, safety, and the environment.
Making safety and occupational health a priority in every aspect of operations.
Right to safety under data protection laws in India
Additionally, no explicit data protection legislation has yet been passed in India. The Information Technology Act (2000) (IT Act) was modified by the Indian Congress to add Sections 43A and 72A, which grant a right to compensation for the incorrect disclosure of personal information.
According to Section 70B of the IT Act, certain types of cyber security incidents must be reported to the CERT-In by completing the necessary forms on the website. If certain cyber security incidents meet the following requirements, they must be notified by law within six hours:
Significant cyberattacks and cyber security incidents on any portion of the public information infrastructure, including the backbone network infrastructure (such as denial of service, distributed denial of service, intrusion, and the propagation of computer contaminants, including ransomware).
Data leaks or breaches.
Significant or frequent occurrences, such as hacking into websites or computer resources.
Cyber incidents impact the safety of human beings.
Maintenance of the right to privacy walks hand in hand with the right to safety. The only difference is that while the former is recognised, the latter isn’t expressly known. Although the prime legislation for data protection in India is the Information Technology Act, 2000, the aim behind the same and all other associated data protection rules promulgated by the legislature is to protect the privacy of individuals as the same has been given the status of fundamental rights in this democratic land.
In the data protection regime, the term ‘security’ is frequently used instead of ‘safety’. Both the terms being synonymous to each other, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were introduced by the Ministry of Electronics and Information Technology in an effort to strike a balance between private rights, public order and national security. Due diligence standards are outlined in these regulations, and the goal is to pinpoint the original source of all information shared on social media and messaging services. However, the content of electronic messages is not covered by this rule.
The RBI also acknowledged the rising lack of data privacy and security in the digital lending industry. The RBI formed a working group to evaluate the maturity of privacy standards put in place because the use of digital lending applications has increased exponentially. The working group concluded that data should only be stored on Indian servers.
What does India need to ensure proper implementation of the right to safety
As you can see, enough laws have been created to safeguard our right to safety, some of which have strong fangs while others are toothless. However, because of their poor execution, Indian consumers are significantly more at risk than those in wealthy economies. We need two things to make it work better:
A safety agency that is independent, such as the Consumer Product Safety Commission (CPSC) in the US, is dedicated to safeguarding American consumers from the danger of harm or death from the hundreds of items that fall within its purview. No one is beyond its grasp, thus the top brands in the world are frequently brought up.
The BIS needs to stop using the voluntary method since it is not beneficial to anyone. It is difficult to understand why the criteria are optional rather than being required, particularly in categories where there may be a life-threatening condition, such as elevator cabins or rides at amusement parks.
Conclusion
The urgent need to reduce morbidity and mortality is widely acknowledged, particularly in light of the fact that injuries are among the leading causes of years of life lost in the majority of developed nations. The relative contributions of powerful elites and organisational structures to the development of hazardous systems, the efficacy of strategies that emphasise technological fixes over behavioural change, the relative contributions of state and government interventions and those made by civil society organisations, and the necessity of enacting laws, setting standards, and making sure the police uphold them are all issues that supporters of the right to safety disagree on. Without a fundamental morality that gives the argument a solid foundation, it is exceedingly impossible to address these difficulties. We are generally underserved in our right to safety, whether we are citizens or consumers, and we live with a lot of uncertainty, leaving a lot to chance and fate. It is anticipated that current efforts to obtain agreement on a text outlining people’s rights to live lives free from harmful injury will assist in bridging ideological gaps and aligning priorities.
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 Mohammad Sahil Khan of Dr Ram Manohar Lohiya, National Law University, Lucknow. The article deals with custodial deaths, rules violated in custodial deaths, laws penalizing the offence of custodial death and measures to prevent such forms of deaths.
Custodial death is not a recent concept, especially in India where the phenomenon of custodial death has been carried out since the times when India’s sovereignty was in the hands of Britishers. Police brutality and violence have exponentially grown over the last four-five years. It reflects a dearth of legal provisions in our judicial system to reprimand law enforcing authorities for carrying out brutal practices and resorting to torture by using ‘performance of duty as a defence.
Police brutality often causes grave injuries to the accused and to prevent such mishaps, the police forces should be warned to use reasonable amounts of force. The perception created by the media against the accused is also a contributor to custodial violence. The death of George Floyd in the USA due to police brutality led to a whole new movement “Black Lives Matter”. The death of Jayaraj and Bennix in the custody of Tamil Nadu enraged public sentiments and people voiced for having an adequate mechanism to prevent the police torture. These incidents highlighted the absence of anti-torture law in India and the voices have been raised to have an act in place to prevent such incidents from happening.
Judicial and police custody
Usually, custody and arrest are perceived as synonymous. However, this is not true. Custody means keeping an individual in protective care based on the apprehension that he or she may cause harm to society.
The term ‘arrest’ means that an individual is formally taken into police custody on suspicion of committing a crime. Thus, in every arrest there is custody but vice versa is not true.
Police custody
When a police officer arrests an individual accused of committing a crime and brings him to the police station, it is called police custody. In police custody, the detainee is held for not more than 24 hours in jail at a police station and during this time the officer-in-charge interrogates the suspect. Police officers must produce the suspect before the judge within 24 hours of detention.
Judicial Custody
In Police custody, the accused is kept in the physical custody of police but in judicial custody, the accused is kept in the custody of the magistrate of the concerned area. As opposed to police custody, where the suspect is kept in police lock-up; in judicial custody, the accused is kept in jail. The police officer in charge is not allowed to investigate the suspect in judicial custody unless the court opines that the interrogation is necessary under the facts produced before the court.
Custody and judicial remand under CrPC in India
CrPC contains certain provisions with regards to judicial remand and custody of an individual. According to Section 57 of the CrPC, a police officer cannot detain a person in custody for more than 24 hours. If a situation arises wherein, a suspect needs to be detained for more than 24 hours, the officer needs to seek special permission from the magistrate under Section 167 of the CrPC.
Section 57 is known as remand or pre-trial detention. Remand has two connotations, the first one is to send the accused back to the authority responsible for its detention and secondly it means to send cases from the appellate court to the lower court. Section 167(2), 209(b) and 309(2) empowers the court to remand custody of an accused. All the three sections come into existence at different stages of a criminal trial. The provision for remand under Section 167(2) of CrPC is associated with the initial stages of investigation, it is used in furthering the investigation which can be either police or judicial custody. Remand under Section 209(b) of the CrPC is used when the magistrate commits the case wherein, the magistrate can remand the accused until the completion of the trial. Section 309(2) pertains to stage after cognizance, where the subject can be sent only to judicial custody.
The custody period is not extended more than 24 hours in order to protect the suspect from any unscrupulous act which might be committed by a police officer. In case, if the investigation could not be completed within 24 hours, the accused must be forwarded to a Judicial Magistrate. The Judicial Magistrate cannot extend the period of remand for more than 15 days. Section 167(2) contains provision for the magistrate to remand an accused for a term of 60 days maximum for offences that are not punishable with life imprisonment, death or imprisonment upto 10 years. When it comes to offences that are punishable with life imprisonment, death or imprisonment upto 10 years or more, the magistrate can remand judicial custody for a maximum term of 90 days. If the maximum term of remand is exceeded, the suspect shall be released on bail.
What is custodial death
Custodial death refers to the death of an accused during pre-trial or after conviction. The death is caused by the direct or indirect act of police during their custody. It includes death occurring not only in jail but also on medical or private premises, or in police or another vehicle. Custodial deaths can be classified into three types:
The death occurred in police custody.
The death occurred in judicial custody.
The death occurred in the custody of army or paramilitary forces.
Custodial death can occur due to some natural sources, where there is no involvement of any kind of foul play by the police, for example- instances when a convict or an accused dies of an illness. But the problem arises when the law enforcement authority gets involved in the death of an individual while he or she is in their custody.
It becomes extremely difficult to prove the fault of police in such cases because of the tactics employed by them. Sometimes, even before an arrest is made, the accused are tortured by the police authority which enables the police to claim that the injuries are not caused due to custodial brutality but have occurred even before the accused was under the custody of the police. ‘Fake encounters’ is a term that is doing rounds in the news in the recent past; it is also a form of custodial death. It is very difficult to establish the liability of the police and to prove them guilty because when these incidents occur, all the evidence is with the police; so it becomes next to impossible to prove their malicious act.
Custodial violence is recognized as one of the most brutal forms of human rights abuse. The Constitution of India guarantees the right to life and liberty to individuals and prohibits any sort of custodial torture to take out confessions from the accused. The Constitution of India calls for the safety of convicts and accused in the police and judicial lock-ups, but the authorities such as the police undermine such constitutional structures and carry out custodial violence and torture.
International laws dealing with human rights
Abuse of human rights is a major issue all around the globe, each country has its way of preventing human rights abuse. As far as custodial deaths are concerned, there are various international safeguards to protect the rights of the arrestee.
Universal Declaration of Human Rights, 1948 (UDHR)
UDHR explicitly states that every person should be treated as innocent until the individual is found guilty. Article 5 of UDHR deals with the issues of torture and cruelty. According to Article 5 of UDHR, no person should be tortured or treated with cruelty, irrespective of the geographical location of the individual.
International Covenant on Civil and Political Rights, 1966
Article 6 of the International Covenant on Civil and Political Rights states that every individual has the inherent right to life and no one should be arbitrarily deprived of his right to life. ICCPR prevents cruel, degrading and inhuman treatment of prisoners. No individual shall be arbitrarily arrested or detained.
United Nations Standard Minimum Rules for the Treatment of Prisoners, 2015
Section 6 of the Convention discourages any discrimination against prisoners based on race, colour, sex, language, religion, political or another opinion, national or social origin, property, birth or another status.
Section 7 of the Convention calls for the maintenance of the register to keep a record of the prisoner entailing the identity of the prisoner, the reasons behind his actions and the day of his admission and release from the cell.
Section 8 deals with the protocols for keeping prisoners in the cell. This Section states that male prisoners and female prisoners should be allocated to different institutions and should be kept as far as possible.
Domestic cases associated with custodial death
Joginder Kumar v. State of U.P and others, 1994
In this landmark case, the Court observed that the rights under Articles 21 and 22(1) of the Constitution need to be recognised and must be protected. The Court issued a few guidelines to ensure the protection of these rights.
The arrested person should be informed about his or her right by the police officer when the arrested person is brought to the police station.
An entry needs to be maintained in the register which contains the information about who was informed about the arrest of the accused.
Articles 21 and 22(1) should be strictly recognised and enforced.
The Magistrate shall determine whether all the requirements are fulfilled and obeyed by the police authority.
The landmark judgement suggested an important procedural mechanism which could be proved beneficial if it is implemented in the right spirit. The judgement is important in the essence that it recognises the fundamental rights and basic human rights of the individual and provides a way of protecting them.
J. Prabhavathiamma v. the State of Kerala and others, 2007
The case pertained to the death of a scrap metal shop worker in custody in Thiruvananthapuram. The hearing of the case lasted for a decade and the CBI Court ultimately sentenced the two accused serving personnel to the death penalty.
Justice Nazar remarked that the police officers have brutally murdered the victim and have adversely affected the reputation of the police institution. The judge also held that such heinous acts cannot be pardoned because they will affect the law and order and it would encourage police officers to exercise their power arbitrarily.
Death sentence is a kind of punishment that is rarely awarded but in this particular case, the Bench adjudged on the basis of gravity of the offence committed and by awarding death sentence, set a precedent to prevent such activities in the future.
Yashwant and others v. the State of Maharashtra, 2018
The case involves nine cops of the Maharashtra police who were accused of causing a custodial death in 1993, the High Court of Bombay sentenced them to imprisonment for a term of three years. The Supreme Court upheld the order of the high court and extended the punishment sentence from three years to seven years each.
Justice N.V. Ramana and MM Shantanagoudar remarked that the unfortunate incident involving the police erodes the confidence of people in the criminal justice system. The Court found the police personnel involved in the incident to be liable under Section 330 of the Indian Penal Code for causing voluntary hurt to extort a confession from the victim.
The extension of the punishment is absolutely justified in the prevailing case because of the nature of the offence committed. It is important that the law enforcement agencies act as per the due process of law established in the Constitution. The judgement is landmark because the Apex Court not only withheld the punishment, but rather they extended the term which established a precedent that the judiciary would not entertain any cases pertaining to violation of human rights.
International cases associated with custodial death
Case of Aydin v. Turkey, 1997
The case was regarding the alleged rape and ill-treatment of a female arrestee, Aydin. The European Court of Human Rights was adjudicating the case and they observed that the actions of the Turkish police personnel were unjustified. The Court found the personnel to be liable for breaching Articles 3 and 13 of the European Convention on Human rights and Fundamental Freedoms. Article 3 of the Convention contains a provision for the prohibition of torture and Article 13 provides for a right to an effective remedy which was denied in the case as the complaint of the victim was not considered and thoroughly investigated.
Maria Elena Loayza Tamayo v. Peru, 1997
In this case, the victim was detained by the National Counter-Terrorism Bureau. In detention, the victim was inhumanely treated where she was tortured and repeatedly raped by the officials to extort a confession from her. She lodged a complaint in the Inter-American Commission of Human Rights accusing officials of violating her human rights. The Commission further transferred the case to the Inter-American Court. The Court observed that the officials had violated Articles 5, 7, 8(1), 8(2), and 8(4) of the American Convention on Human Rights and ordered the release of the victim.
Violation of Rule of Law
Custodial death because of torture and violence by police goes against the fundamental structure of the Constitution of India and as a result, it violates various fundamental laws that are guaranteed by the Constitution.
Article 20(1): This Article states that no person shall be convicted of any offence, except those which are in contravention of the law in power at the commission of the Act. Thus, this law prohibits punishment above what is mentioned in the law that deals with the offence.
Article 20(3): Article 20(3) prohibits a person to be compelled to be a witness against himself. It is an extremely instrumental law as it protects the accused from giving confessions when the accused is coerced or tortured to do so. Under Section 161 of the Code of Criminal Procedure, police have the right to interrogate the accused; but during an investigation, if police resort to coercion to seek out information from an accused, it would be termed as forced testimony. Forced testimony is violative of Article 20(3) and thus, it is not considered.
Section 163 of Code of Criminal Procedure, 1973: This Section of Code of Criminal Procedure, 1973 prohibits any investigating officer to use a threat or any other sort of inducement to obtain a confession from the accused which would be presented as evidence against him.
Section 24 Indian Evidence Act, 1872: Section 24 of Indian Evidence Act, 1872 declares that all the confessions made by the accused by succumbing to the threat, promise or inducement of investigating agencies would not be admissible in the court of law. This Section primarily works for preventing the accused to give confessions against his will.
Section 164(4) of Code of Criminal Procedure, 1973: This Section requires that signature and recordings of confessions are made properly and this should be further corroborated by the support of the Magistrate stating that confession has been made voluntarily.
Section 348 of the Indian Penal Code, 1860: Section 348 deals with wrongful imprisonment and prohibits such sort of imprisonment to obtain confessions. Wrongful imprisonment is a punishable offence which makes the offender liable for a fine and imprisonment of up to 3 years.
Section 25 Indian Evidence Act, 1872: Section 25 protects to accused from the investigating agencies. Section 25 states that if any confession is made before the police officer, it cannot be used to prove an offence against him. However, Section 27 provides a small exception in cases where a custodial statement might lead to the discovery of a new fact.
Section 26 Indian Evidence Act, 1872: Section 26 strictly states that any confession made in custody in the absence of a magistrate would be inadmissible in the court of law.
Section 46 of Code of Criminal Procedure, 1973: This Section explicitly states that an accused cannot be tortured to death if the accused is not alleged for an offence punishable with life imprisonment or death.
Section 49 of Code of Criminal Procedure, 1973: Unnecessary restraint is prevented under Section 49 of CrPC. The accused should not be subjected to more restraint than is required to prevent his or her escape.
Recent cases of custodial death in India
Jayaraj and Benix custodial death
Most of the cases associated with custodial death do not get much attention as they are quietly swept under the carpet and also because of the media trial which builds a narrative against the accused. However, the custodial death of Jayaraj and his son Bennix got the much needed attention and made people realise that even the law enforcement agencies can be absolutely brutal at times.
In the Jayaraj and Bennix death case, the accused died four days after their arrest. The father-son duo was arrested by the police for allegedly opening the cell phone store at the time of the lockdown curfew and the police authority took them to Kovilpatti. There are two versions to this case. The police officials’ version says that when Jayaraj and Bennix were asked to shut down their store, they refused to do so and sat on the ground, verbally assaulted the officials and also threatened to kill the officials. The police officials stated that they rolled on the ground and in the due course got themselves injured, ultimately leading to their demise.
The second version is reported by the eyewitnesses who state that the officials picked up the father-son duo on different days. The eyewitnesses have even mentioned that the victims had an altercation with the police authorities, a day prior to their arrest which provoked officials to arrest the victims on false charges. The brutality of the police action can be determined by the fact that the victims had to change their lungis six times which got drenched in blood. Benix’s sister has proclaimed that her brother and father were also sexually assaulted by police officials using steel batons. Eventually, the father-son duo succumbed to their injuries.
In this case, no procedures and policies were followed by the officials and excessive force was used by officials as they beat the victims to death. A large-scale protest was carried out against the police officers for breaching human rights and a huge uproar for justice occurred. Only after a massive outrage, actions were taken against the culprit, sub-inspector Balakrishnan and Raghu Ganesh, and police constables Murugan and Muthuraj were suspended.
Vignesh’s custodial death
On 18 April, 2022, Vignesh and Suresh were detained by the police officers during a vehicle check, where they recovered liquor bottles and ganja. Both Vignesh and Suresh were taken by the police officials to the Secretariat Colony police station. The day following the detention of Vignesh, he was declared dead by the doctors. A police constable, sub-inspector and a member of the Home Guards were suspended and the probe was initiated to look into the matter of suspicious death.
Following a huge outcry against the rising cases of custodial death, the case was handed over to the Chennai Police Crime Branch-Crime Investigative Department. The department probed the matter and arrested six police officials involved in the custodial death of the victim. The District Magistrate remanded judicial custody of the officials involved in the horrific event. The culprits were booked under Section 302 of the Indian Penal Code and the SC/ST Atrocities Act.
The officials were arrested on the basis of an autopsy report which pointed out that the 25-year-old victim had multiple injuries and fractures on his body and there were several bruises all over the body of the victim (especially on his head). Deep muscle injury, swelling, contusion and injuries on the arms were also quite evident.
Laws penalising the offence of custodial death in India
There is a need for new stringent laws to tackle the issue of custodial death as the numbers in the recent past have risen exponentially. However, there are certain legal provisions in the Constitution to penalise the offence of custodial death.
Section 302 of the Indian Penal Code (IPC): If a police officer is liable for the death of a suspect in the course of custody, he or she will be charged with murder and would be punished under Section 302 of the IPC.
Section 304 of Indian Penal Code: Under Section 304 of the IPC, the police officer can be punished for ‘culpable homicide not amounting to murder. Section 304A can also be applied if the custodial death occurred by the negligence of the police officer.
Section 306 of Indian Penal Code: Section 306 of IPC deals with punishments associated with abetment to suicide. If it is found that the suspect has committed suicide under custody and if the policeman has abetted the suicide; then he would be punished under section 306 of the IPC.
Section 330 of the Indian Penal Code: It has been observed that police officers resort to violence and torture to obtain confessions and in the process, grave injuries occur to the accused. Section 330 of IPC deals with punishment for causing voluntary hurt.
Section 331 of the Indian Penal Code: In case grievous hurt is caused to the accused during custody; it will amount to punishment to a police officer for causing voluntary grievous hurt.
Section 176(1) of the Code of Criminal Procedure: If a person dies, disappears or if a rape is committed on any woman while the accused is under custody, an investigation will be launched and an inquiry would be held either by the Metropolitan Magistrate or Judicial Magistrate depending upon the jurisdiction of the offence committed.
Section 7 of Indian Police Act: Section 7 of the Indian Police Act empowers senior police officers to dismiss or suspend a police officer in case the officer has been negligent in discharging the duty.
Section 29 of the Indian Police Act: Section 29 contains legal provisions for penalising police personnel for carrying out their duty negligently. The penalty includes imprisonment for up to three months for imprisonment with or without hard labour for a maximum term of three months.
Statistics of custodial deaths in India
The National Human Rights Commission (NHRC) has recently raised an alarming figure related to custodial death in the period between 2021-2022. As per NHRC, there were 2,150 reported cases of death in judicial custody and 155 cases of death in police custody.
Uttar Pradesh held the record for the highest number of deaths (448) in judicial custody.
While Uttar Pradesh holds the record for the highest number of deaths in judicial custody, Maharashtra tops the chart in cases of deaths (29) in police custody.
NHRC shared the number of custodial death cases of the last five years which were, 1940, 1696, 1933, 1782, 1761; in 2020-21, 2019-20, 2018-19, 2017-18, 2016-17 respectively.
The total tally of custodial deaths of the past five years amounts to 9112 and of these many deaths, disciplinary actions were taken in only 21 cases of custodial deaths. These are extremely worrisome stats because it states that disciplinary action was taken only in 0.23% of the total cases of custodial death.
From 2000-2020, 1888 custodial deaths have been reported all around the country. In 893 cases pertaining to custodial deaths, cases were registered against policemen, but only 358 police officers were charge-sheeted and only 26 of the policemen were convicted.
While only 26 police personnel were convicted in the last 20 years; however NCRB record tells that 96 personnel were arrested between 2017 – 2020.
As per the NCRB record, 69% of deaths in police custody between 2010-2020 occurred due to illness (40%) or suicide (29%). Illness and suicide are considered natural causes of death.
Between 2015-2019, the deaths by suicide were significantly higher. During this period, 36% of death in police custody occurred due to suicide.
Stats on physical assault have been recorded since 2014 and only in 6% of the total cases; has physical assault by police been observed.
Reason for rising custodial deaths
The statistics presented by the NHRC have shown a constant increase in custodial deaths. It is perturbing data because every individual has the fundamental right to life under Article 21 of the Constitution of India and if a law-enforcing body is breaching its duty of protecting lives, it becomes even worse. The 2018 prison report of NCRB lists out that 149 custodial deaths occurred due to unnatural causes and some deaths occurred due to unknown causes because some of the states were not providing the details of the deaths. A lot of custodial death occurred because of suicide; however, it is not clear whether the inmates committed suicide or were they forced to avoid further violence and torture. The psychological aspects of prisoners are completely neglected and there is no psychiatric help available to these inmates to cope with the stress or trauma that they are experiencing.
The prison conditions are miserable, to say the least, medical facilities offered to the inmates are not up to the mark apart from that there are frequent instances of fighting among inmates which are quite fatal. The physical agony just adds up to the mental trauma and severely impacts the mindset of an inmate. These are basic essential requirements that need to be ensured by the state authorities to protect the basic fundamental right Right to Life.
One of the most important reasons behind the rise of custodial death is the excessive power vested by the State in police authorities. Section 49 of the Code of Criminal Procedure explicitly specifies that the arrested person should be subject to a reasonable amount of force and should not be restricted to more restraint than is necessary to prevent his or her escape. However, police authorities often neglect these norms and resort to an excessive amount of force because in cases of custodial death, they are the ones investigating it and they have all the evidence so many of such death cases get covered up in administrative cover-ups. The growth in the number of custodial deaths can be attributed to the fact that no stringent actions were taken against the individuals in the past and no precedent has been set so far. It is high time to set a strong precedent so that the law-enforcing authorities do not exceed their powers.
Custodial torture
Custodial torture refers to the torture of a suspect while the suspect is under a law enforcement agency’s custody. The Supreme Court has blatantly rejected the notion of custodial torture, citing it as a naked violation of human dignity and degradation. Custodial torture is an offence punishable by law, but often the offender does not get punished owing to the irregularities in the system. It has been reported that the doctors conducting the post-mortem are pressured by the police authorities, and as a result, they are not able to perform their medical duty diligently. A post-mortem is an essential requirement of the investigative procedure; evidence can be obtained in the process of a post-mortem. Since post-mortem is influenced and the other evidence is with the law enforcement agencies, who investigate matters about custodial death; as a result, the culprits do not get convicted.
The Commission, soon after its constitution, realised that custodial death is an area of grave concern and, therefore, issued certain guidelines to the law enforcement agencies. The reporting of deaths in correction homes and police lock-ups was made mandatory, District Magistrate and Superintendent of Police are required to report the matters of custodial death to the Commission within 24 hours of the occurrence of death. Apart from that, videography of the post-mortem was made necessary. The Commission has played a crucial role in limiting some custodial deaths by taking proactive measures. The Commission takes cognizance of the complaints made by the family members of the victims and does not solely rely on the data presented in the police reports. A report issued by Transparency International in 2019 stated that a total of 31,845 cases of custodial death have been recorded by the NHRC between 1993 to 2016. Although the NHRC has played its role well, a lot needs to be done. The decisions of the Commission should be made enforceable, which would instil fear in the law-enforcing agencies as they would be mindful in their application of force.
Other conventions
International Human Rights Law, 1948
The International Human Rights Law contains a provision which protects people from torture and other enforced disappearances.
United Nation Charter, 1945
The United Nations Charter calls for treating prisoners with dignity. The Charter clearly states that despite being prisoners, their fundamental freedoms and human rights are set out in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
The European Convention for the Protection of Human Rights and Fundamental Freedoms, 1953
The Convention was formed to protect the human rights of the people belonging to the countries that are included in the Council of Europe. Article 3 of the convention prohibits torture and cruel and inhuman treatment of any individual.
The Nelson Mandela Rules, 2015
The Nelson Mandela Rules were adopted by the United Nations General Assembly in 2015 to treat prisoners with inherent dignity and to prohibit torture and other ill-treatment.
The American Convention on Human Rights, 1969
The convention seeks respect for mental, physical, and moral integrity and freedom from any sort of cruelty, torture, or degrading punishment, as entailed in Article 5 of the Convention.
What could be the solution to put a stop to custodial deaths
The alarming figures for custodial deaths show a sad state of law and order in India. People losing their right to life because of police brutality and violence is an unfortunate event. The fact that the officers who resort to torture and violence represent an even grimmer condition. Lack of evidence against police for causing custodial death as they are in charge of all the evidence and records is a helpless condition as punishing the personnel without evidence is not possible. However, certain steps can be taken to put an end to custodial deaths.
Firstly, the eleven guidelines laid down in the landmark case of D.K. Basu v. State of West Bengal,1996 should be properly implemented.
The personnel who have carried out the arrest and are responsible for the interrogation process of the accused must carry his identification card which has the personnel’s name and designation mentioned.
The police personnel must make the memo of the arrest at the time of arresting the accused.
Relatives or friends of the accused must be informed regarding the arrest of the accused as soon as possible.
If the relatives or friends of the accused live outside the district, they must be informed about the arrest through a ‘legal aid organization’ in the district and the police station of the area telegraphically after 8-12 hours of arrest.
The arrested person must be instructed about his right to inform someone about his arrest.
An entry record of the arrest must be made.
Accused who have been arrested must be examined at the time of the arrest.
A medical examination of the arrestee must be conducted within 48 hours of his detention.
All the documents and memo copies should be sent to the magistrate of the concerned area.
The arrested individual has the right to meet his lawyer during the investigation.
The guidelines require the establishment of a police control room in all state headquarters and districts, and information regarding the arrest must be conveyed to the police control room within 12 hours of effecting the arrest.
It can be inferred by the record that since a majority of police personnel are charge-sheeted; they do not get convicted, and as a result, they don’t fear using force on the accused. This must be changed if custodial death is to be prevented, because if the personnel are granted immunity against excessive use of force; it erodes the basic essence of the Constitution of India. A stringent legal provision needs to be introduced to punish personnel who abuse their power.
Secondly, often a suspect or an accused is subjected to a media trial. This shapes the mentality of the common public that the accused must have been a culprit, and as a result, torture experienced by the accused is often overlooked. It also assures the police authorities that they are performing their duty in the right spirit.
Thirdly, lower-ranked police officers are surmounted by the pressure imposed on them by higher-ranked police or government officials to solve a case or extort a confession, and as a result, succumbing to that created pressure, police officers resort to violence. In Prakash Singh v. Union of India, 2006; the Apex Court directed the State and Central governments that no additional pressure should be created on the police authorities.
Apart from the D.K. Basu v. State of Bengal judgement, 7 directives laid down in the Prakash Singh v. Union of India needs to be implemented as well.
The court directed the formation of a State Security Commission to ensure that the state governments are not imposing pressure on the police. The court proposed that the commission should lay down some guidelines for the police and the performance of the police officers should be evaluated.
It must be ensured that the Director-General of the Police is appointed by a merit-based system for a tenure of two years.
The third directive stated that the SP in charge of the district and station house officers in charge of the police station should be provided with a minimum tenure of two years.
The fourth directive called for the separation of the investigation and law and order functions of the police.
A Police Establishment Board needs to be set up to decide on the issues about the postings, transfers, promotions, and other service matters of police officers at or below the rank of Deputy Superintendent of Police (DSP). The boards would also recommend the transfers and postings of the police officers ranked above DSP.
A Police Complaint Authority (PCA) has to be constituted at the state level to inquire into public complaints issued against police officers of rank DSP or above in cases of misconduct related to grievous hurt, rape, or custodial death. PCA at the district level should be established to deal with complaints of officers below the rank of DSP.
The last directive urged the formation of the National Security Commission at the union level, whose responsibility would be to prepare a panel for the selection and placement of Chiefs of the Central Police Organisation with a minimum tenure of two years.
Conclusion
The statistics presented by NHRC and NCRB reflect horrifying numbers of custodial deaths. It must be changed. The protection that police get from the state despite misusing their power is a big issue. There is a need for monitoring police actions in cases of custodial death, and police officers who act in mala fide must be convicted. A precedent needs to be set to make the authorities realise that they cannot exercise their power beyond their limits. If the current scenario is to be considered, it is very difficult to say that there will be any improvement regarding custodial deaths. There is a need for stringent legal action which will be solely dedicated to punishing the personnel who misused their power and whose brutal force led to a loss of life. For ensuring the reduction of instances of custodial death, the guidelines laid down in the landmark cases of D.K. Basu v. State of Bengal and Prakash Singh v. Union of India need to be strictly implemented.
Frequently Asked Questions (FAQs)
Is there any anti-torture law in India?
India does not have an anti-torture law but there are certain legal provisions in the IPC and CrPC to deal with offences related to torture. The judiciary believes that the guidelines stated in D.K. Basu v. State of West Bengal,1996 along with legal provisions in the IPC and CrPC are enough to punish the officials involved in custodial death.
What did the 273rd report of Law Commission report regarding torture?
The 273rd report of the Law Commission reported regarding torture that police officers accused of torture should face criminal prosecution rather than mere administrative actions. The report called for punishing not only police officials but also military and paramilitary personnel.
Are the guidelines of the NHRC concerning custodial torture enforceable in court?
The guidelines of the NHRC are not enforceable in court; they are designed to prevent the occurrence of custodial torture. NHRC’s focus is more on addressing the complaints of the victim’s family and they have directed certain guidelines to prevent arbitrary use of power by the police officials to prevent custodial death.
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 Sambit Rath, a B.A.LL.B student of Dr. Ram Manohar Lohiya National Law University, Lucknow. In this article, the author aims to discuss the differences between cognizable and non-cognizable offences, the procedure followed by the investigating authorities and their powers, and judgements related to the same.
It has been published by Rachit Garg.
Table of Contents
Introduction
According to the Collins dictionary, “an offence is a crime that breaks a particular law and requires a particular punishment.” All of us are aware that to punish a criminal, he/she needs to be arrested first and then be questioned by the police. Like this, a proper step-by-step procedure is followed until the case goes to court. However, not all offences are the same and they require different treatment. The Indian Penal Code, 1860 (IPC) is the official criminal code of India. It covers all the substantive aspects of criminal law. All the acts that amount to crime are defined in it. Based on the nature and gravity of offences, they can be classified into 3 types. These are bailable and non-bailable offences, cognizable and non-cognizable offences, and compoundable and non-compoundable offences. In this article, we shall look into the differences between cognizable and non-cognizable offences.
What are cognizable offences
The punishment for each offence depends on the seriousness of the crime. Offences that are punishable with not less than 3 years of imprisonment are serious offences and are considered cognizable. The Criminal Procedure Code, 1973 (CrPC) under Section 2(c) states that an offence that is punishable with death, imprisonment for life, or imprisonment for more than 3 years shall be cognizable.
Cognizable offences are those in which the police can arrest the accused without a warrant. The police can also begin an investigation without the permission of the court. The accused is arrested and produced before the court at the stipulated time. According to Section 154 of the CrPC, a police officer is required to register an FIR in case of a cognizable offence. Murder, rape, theft, kidnapping, dowry death, etc. are some of the examples of cognizable offences. These offences are both bailable, and non-bailable.
What are non-cognizable offences
An offence that is less serious in nature is considered non-cognizable. Section 2(l) of the CrPC defines non-cognizable offences as those in which the police have no authority to arrest without a warrant. These are mentioned in the first schedule of the Indian Penal Code and are bailable. In these offences, the police cannot arrest the accused without an arrest warrant and cannot start an investigation without the permission of the court. Non-serious crimes such as assault, cheating, forgery, defamation, public nuisance, etc. are non-cognizable offences.
As per Section 155 of the CrPC, if a police officer receives information about a non-cognizable crime, he is supposed to enter the case in the station diary and refer the informant to the magistrate. Only after receiving permission from the magistrate, the police can start investigating the matter. After concluding its investigation, a charge sheet is filed with the court, which is then followed by a trial. If a case has been made out, the court then issues a final order of arrest.
Powers of the police
In cognizable offence
Section 156 of the CrPC confers power upon the police to deal with cognizable offences.
When an FIR is filed at the police station and the offence is a cognizable one, the police can initiate arrest without waiting for an arrest warrant from the court.
Investigation can be started as soon as the arrest is made and the investigation is limited to the local jurisdiction of that police station.
The police are bound to register an FIR if the information discloses a cognizable offence. If the place of crime is outside the jurisdiction of the police station, the police officer cannot refuse to register the report and should forward it to the police station that has jurisdiction.
In non-cognizable offence
Section 155 of the CrPC provides the procedure that the police have to follow while dealing with non-cognizable offences.
In these cases, the police cannot arrest anyone without an arrest warrant and initiate an investigation on their own without the consent of the magistrate.
The police officer has to get the order from the magistrate under Section 155(2) of the CrPC.
The police officer has to record the complaint filed and ask the complainant to approach the magistrate having jurisdiction. After receiving permission from the magistrate, the investigation can begin.
Procedure to be followed
The Criminal Procedure Code, 1973 lays down the procedure that the investigating authorities and the rest of the legal system have to follow while dealing with criminal cases. The approach that the police should have while dealing with cognizable and non-cognizable offences is as follows:
In cognizable offence
The case begins as soon as a First Information Report (FIR) is filed at the police station. It informs the police of the commission of a cognizable offence by someone identified or unidentified. A copy of the FIR is given to the complainant and a second copy is sent to the magistrate.
Investigation begins as soon as the information is recorded by the police officer. The officer-in-charge appoints the appropriate policemen to go to the spot and arrest the accused.
If the investigation requires searching for documents then the police can do so and can order a person to produce relevant documents.
The arrested person is placed under detention and questioned up until he is produced before the magistrate within 24 hours of the arrest including the time taken to travel to the magistrate.
If the police find that the investigation cannot be completed within 24 hours, they will then make an application to the magistrate and request him to extend the period of custody. Based on the preliminary investigation, if the magistrate finds it appropriate, he can remand the arrested person for not more than 14 days.
While investigating, the police are well within their rights to question witnesses and record their statements. These can have a huge impact on the case going forward.
The medical examination of rape or molestation victims is to be conducted within 24 hours of the offence being reported.
After the investigation is concluded, a charge sheet is prepared and sent to the magistrate. A report consisting of the FIR, witness statements, names of parties, facts, and information gathered by the investigating officer is sent to the magistrate.
Then the judge calls upon the parties and informs them of the preliminary finding. At this stage, witnesses are brought forward and asked to make the same statements that they made to the police, but this time under oath. The accused has the option to plead guilty, and if he doesn’t then the case goes to court.
The trial commences in the trial court, where all the witnesses are called upon and are asked to make statements under oath. Both parties make their arguments.
The judge then prepares a judgement that is based on various points, which are explained in it. As it is a case of a cognizable offence, the accused, if found guilty is sent to prison for not less than three years and other such punishment as may be prescribed by the IPC.
In non-cognizable offence
In non-cognizable offences, the police are not permitted to arrest the accused without an arrest warrant. An officer is not allowed to investigate a non-cognizable case without the consent of the magistrate. This is provided in Section 155(2) of the CrPC.
On receiving the order from the magistrate, the police officer can initiate an investigation with the same powers he exercises in a cognizable case. Thus, the procedure of investigation stays the same in both.
Cases where both cognizable and non-cognizable offences are committed
According to Section 155(4) of the Criminal Procedure Code, if in a case there are two or more offences and one of them is a cognizable one according to the first schedule of the Indian Penal Code, the entire case has to be dealt with as a cognizable one. Hence, the investigating officer will have the same authority to investigate the case as he has in a cognizable case.
Difference between cognizable and non-cognizable offences
S.no
Basis
Cognizable
Non-cognizable
1
Meaning
Cognizable offences are those in which the investigating authority can arrest the accused without an arrest warrant.
Non-cognizable offences are those in which the investigating authority cannot arrest an accused without an arrest warrant.
2
Permission of court
Not required, investigation can be initiated as soon as an FIR is filed.
Required, investigation can begin only after the court issues an order.
3
Severity of crime
Cognizable offences are serious crimes.
Non-cognizable offences are less serious.
4
Examples
Murder, theft, kidnapping, etc.
Assault, cheating, defamation, etc.
5
Statutory
It is defined in the Section 2(c) of the Criminal Procedure Code, 1973.
It is defined in Section 2(I) of Criminal Procedure Code 1973.
Important judgements surrounding cognizable and non-cognizable offences
Lalita Kumari v. State of U.P.& Ors (2013)
Facts of the case
The petitioner had filed a report before the officer-in-charge of the police station stating that her daughter had been kidnapped.
No action was taken, and when the Superintendent of Police was informed, an FIR was registered. But still, no action was taken to apprehend the accused or to recover the minor child.
Seeing no other option, the petitioner filed a petition under Article 32 of the Constitution.
Issue of the case
Whether a police officer is bound to register an FIR on receiving information relating to the commission of a cognizable offence or whether the police officer has the power to conduct a preliminary inquiry to test the veracity of such information before registering the case.
Judgement of the Court
The Supreme Court held that under Section 154 of the CrPC, a police officer is bound to register an FIR if the information discloses a cognizable offence.
The expression “shall” indicates the statutory intent of Parliament and leaves no discretion to a police officer to conduct a preliminary investigation before registering an FIR.
Stringent action will be taken against those officers who refuse to register an FIR.
Sakiri Vasu v. State Of U.P. And Others (2007)
Facts of the case
The petitioner’s son was a major in the Indian Army, he was found dead at the Mathura Railway Station.
The G.R.P., Mathura, and the Court of Inquiry of the Army held investigations and came to the conclusion that the Major had committed suicide. The petitioner was convinced that it was a case of murder.
The petitioner approached the Supreme Court through a writ petition praying that the matter be investigated by the CBI.
Issue of the case
Whether an aggrieved person, weary of the quality of investigation by the police, can insist that the offence be investigated by a particular agency.
Judgement of the Court
The Supreme Court held that a person cannot insist that an offence be investigated by a particular agency. He can only claim that the offence he alleges was investigated properly.
If a person has reason to believe that the police are not investigating properly or refusing to register an FIR of a cognizable offence, he can inform the Superintendent of Police under Section 154(3).
If the aggrieved is still not satisfied, he can file an application before the magistrate under Section 156(3). The magistrate, if satisfied may direct the police to register the FIR and also direct the police to investigate properly.
Conclusion
The Criminal Procedure Code, 1974 has laid down the procedure of investigation by a police officer in cognizable and non-cognizable offences. The differences between the two are important to understand the powers of the police, rules of investigation, etc. In a cognizable offence, the police can arrest the accused and initiate an investigation on their own without the order of the magistrate. This is done in order to apprehend the accused as soon as possible because cognizable offences are serious crimes. The accused has the probability of harming other people in society. But this is not the case in non-cognizable cases. Hence, the procedure to investigate remains the same in both and only the starting point, i.e., the arrest of the accused, is different in both.
Frequently Asked Questions (FAQs)
Which offences are cognizable?
Cognizable offences are those in which the accused can be arrested and an investigation can be initiated by the police without the order of a magistrate. These are serious crimes like murder, rape, kidnapping, etc.
Is dowry a cognizable offence?
Receiving and giving dowry are both offences. Offences under the Dowry Prohibition Act, 1961 are cognizable for certain purposes that include investigation and matters other than arrest without a warrant or order of the magistrate.
How can a lawyer help you in your criminal case?
A criminal lawyer can assist you in getting bail, identifying errors and rights violations, and other factors that could lead to dismissal of the case or charges being dropped. If the case goes to trial, the criminal lawyer will try his best to get you an acquittal by putting together an effective defence, or if you are convicted, the lawyer can help you get a lesser sentence.
What happens if a criminal charge is not dismissed?
If a criminal charge is not dismissed, the arrested person shall be kept in custody till the investigation is over. If the investigation finds incriminating pieces of evidence, then the case should go to a court.
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 Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. This article gives an overview of the Vijay Mallya Scam and explains the legal provisions attached with this scam.
It has been published by Rachit Garg.
Table of Contents
Introduction
In the past decades, there have been many unethical conducts in the businesses of various professions which affected the public at large. Most of the scams and frauds are done by influential people of the society and hence, have a great impact. These scams and frauds by influential people form a part of white-collar crimes. The term ‘white collar crimes’ and its concept were for the first time given by Sutherland. He pointed out that there are certain crimes besides the traditional crimes (also called blue collar crimes) and were seen as a part of usual unethical business tactics adopted by men to gain success. This is the reason that such crimes were not punished until the concept was not explained by Sutherland.
He along with other writers tried to shift the focus of the society to much-needed dangers from the crimes committed by upper socio-economic groups in society. He defined white collar crimes as ‘crimes committed by persons of high social status in the course of their occupation or employment.’ These crimes include frauds, infringement of patents, copyrights, trademarks, money laundering etc. The country has witnessed the largest scams of the decade, one of them is the Vijay Mallya Scam of Rs 9000 crores. Even after many efforts, he has not been sent to the country for completion of the trial. A recent study in 2016 showed that there is a relation between increasing fraud and NPA (non-performing assets). NPAs are loans where the sum is not paid for more than 90 days and is overdue. This is exploited by the ones who intend to do fraud. The scam done by Vijay Mallya is further discussed in detail in the article.
History of Vijay Mallya and his company
The former Member of Parliament (Rajya Sabha) and a famous businessman, named Vijay Mallya, is the ex-chairman of United Spirits and the chairman of United Breweries Group indulged in beverage alcohol, fertilisers and real estate business. He became the chairman of the company at the age of 28 and focussed on the growth of his family business and company since then. He is also known to own a famous IPL team RCB i.e. Royal Challenger Bangalore for a long period of time. With his hard work, the company was able to take a big leap in turnover making it 64% in 1999. He also expanded his business outside the country in many foreign countries and also acquired Berger paints in his name. He has also been elected as the Member of Parliament two times from Karnataka.
He once decided to expand his business of liquor and Airlines but was advised by the members of the company. Without paying any heed to the advice, he sold one of his companies to collect funds for his business of Airlines. He invested all the collected funds in the Airlines, as a result of which his Kingfisher Airlines became the popular domestic airlines in the country. He also wanted to expand the airlines but the government imposed various restrictions and did not allow it to carry on with international flights. As a consequence of this, he manipulated his own United Breweries company to buy another company going in loss i.e. Deccan Airlines and merged it with his own airlines but could not make profits as desired and indeed suffered a great loss.
How did the Vijay Mallya scam take place
In order to continue his business, he took heavy loans from various banks but was not paying it back. Many banks declared him bankrupt and did not provide further loans but he continued to take it from different banks using his influential position. Another unethical practice done by his airlines was that they were not paying any PF and salaries to their employees and taxes to the government. With such great losses continuously, he refused to pay the salaries of his employees and shut down his business.
Details of various loans taken by Vijay Mallya throughout the scam
He took loans from 17 banks in the country (total Rs. 9000 crores) and refused to repay the principal amount as a result of which they filed a court case against him. The details of major loans and the amount taken by him is given below:
S. no.
Name of Bank
Loan amount
Axis bank
50 crores
Punjab and Sind bank
60 crores
Federal bank
90 crores
Indian overseas bank
140 crores
United bank of India
430 crores
Bank of baroda
550 crores
IDBI
800 crores
PNB
800 crores
SBI
1600 crores
Failure to repay the loan and to avoid criminal liability, he ran to another country with all the money he took as loan in 2016 and has not returned yet. The various reasons for the failure of airlines could be:
Bad business strategy
Failure on the part of management
High fuel prices
Recession of 2008
High cost of operation.
High ticket prices.
Response of Vijay Mallya to the allegations
After the scam in 2016, he ran to the United Kingdom and has not returned back since then. He denied all the allegations of scam and fraud alleged by the banks and his employees and wrote a letter promising to pay all the money back with proper interest. But he is not acting upon his words and his conduct reveals that he has not paid the principal amount. The Supreme Court in 2017 ordered him multiple times to appear before the court but he ignored the order. As a result, the court charged him with Contempt of court and fraud and ordered the government to seek his extradition. The Supreme Court in a recent hearing also found him guilty of contempt for withholding information from the court and gave him the last opportunity to appear before the court either through his advocate or himself.
On the other hand, the Government of India appealed in the court in London to send Vijay Mallya back to his own country for completion of trial. They made extradition requests to the court in London as a result, he was arrested but bailed every time due to his political and influential position.
Judgement of Royal Courts of Justice
In this case, the government of India requested a court in London for the extradition of Vijay Mallya from their country to India. It was argued that he ran from the country after doing a scam with the intention to defraud the banks and people and took all the money illegally with him and was engaged in money laundering and for this reason, they want to take him back into the country. They again filed an extradition request in 2017 in the court on the basis of which he was arrested and granted bail again. This happened every time such a request was made in court.
Vijay Mallya, on the other hand, contended the opposite of what the government of India argued. The court opined that the appellant will not get a fair trial in India due to political influence and pressure, and will be miserably tortured. They applied human rights in a strict sense and denied the request of the Indian Government. They found the request of extradition by the Indian Government opposing and against the European Convention on human rights because of poor prison conditions in India and ordered to improve the conditions and facilities in prisons.
Legal provisions applied in the case
The various charges on Vijay Mallya and the legal provisions are explained below:
Criminal conspiracy
The earlier conspiracy was a civil wrong but later it was made a criminal wrong on the basis of the gravity and nature of the cases. Section 120A of Indian Penal Code, 1860 deals with the offence of criminal conspiracy. Originally, it was punishable in 2 forms:
By way of abetment.
Conspiracy in certain offences.
An illegal act or omission was necessary to convict a person in the former but in later if a person is a member of the conspiracy, it was seen as sufficient ground to convict a person for criminal conspiracy.
However, with the amendment in the Code, Section 120A and Section 120B were inserted. It now deals with the offence of criminal conspiracy as:
Wage or attempt to wage war against the Government of India (Section 121A).
In the case of State (C.B.I/S.I.T) v. Nalini (1971), it was held by the Apex Court that an agreement between two or more persons for commission of illegal acts amounts to criminal conspiracy. It is not necessary to prove that all the people accused of such crime gave their explicit consent in the conspiracy and participated in it.
Ingredients of Section 120A
Agreement between two or more persons for a conspiracy;
Section 120B of the code gives the punishment for the offence of criminal conspiracy. If the conspiracy was done for the commission of serious offence, the person would be punished with death penalty, life imprisonment or rigourous imprisonment for 2 years or more, which is decide from case to case. If they conspired to commit an offence which is punishable with fine then the punishment would be 6 months imprisonment or fine or both.Vijay Mallya has been accused of conspiring to defraud the members of the company and his employees along with various banks in the country.
Cheating
Section 420 of Indian Penal Code, 1860 deals with the offence of cheating and delivering property with dishonest intention. The established principle for the offence of cheating is that in order to convict a person for the offence of cheating, it is not necessary to show that he had dishonest intention when he made a promise to do something. But if he is not able to fulfil the promise, it does not merely mean that he committed the offence of cheating as dishonest intention must be there to prove the offence. The Section provides that the punishment for the offence of cheating is imprisonment upto 7 years and fine. Vijay Mallya in the present case had the dishonest intention to defraud and thus, is accused of cheating.
Ingredients for the offence of Cheating
False representation made by the accused.
Knowledge that the representation was false.
Dishonest intention to deceive the person
Induced a person to do something or omit to do something, which he would not have done.
If a public servant commits the offence of criminal misconduct in order to gain any monetary advantage or valuable thing by using his influential position and abuses his powers, he will be held liable under Section 13 of The Prevention of Corruption Act, 1988. He will be punished with imprisonment upto 7 years or fine or both. In the present case, Vijay Mallya used his position of Member of Parliament (Rajya Sabha) to obtain loans from the banks even when he was declared bankrupt by various banks. This shows that he used his influential nature and abused his power to gain monetary advantages and was thus charged under this Section.
He was also charged under Section 3 and 4 of Prevention of Money Laundering Act, 2002 for the fraud of money. Section 4 provides the punishment for the offence which is rigorous imprisonment extending upto 7 years and minimum 3 years along with fine.
SARFAESI ACT, 2002
This Act enables the lenders of the loan to recover their amount and interest by selling off the property and assets of the person who has taken the loan. In the present case, the lenders in various banks were permitted to recover the principal amount and interest by selling the assets and properties of Vijay Mallya’s company Kingfisher. The auction was done through electronic mode but the recovery could not be done due to no buyers for the assets. The real estate market was already struggling and thus, the lenders could not find any buyer who could buy any asset or property of the company because of higher prices.
Extradition laws
Extradition is a process through which a country requests another country where the fugitive offender is hiding, to send him back to his own country. The laws are usually governed by treaties and relations between the countries. It is governed by the Extradition Act of 1962. The concept is based on 3 other principles namely, Dual criminality, Speciality and Political influence. However, these laws are not applied in certain cases. These are:
If the principle of dual criminality cannot be applied or requirements cannot be fulfilled.
If the crime is a political crime, extradition of such offenders is generally refused.
If the country has strict human rights, then it can refuse the extraditionj on the ground og violation of these rights and torture to the offender in his country’s prison, as seen in the present scam.
If there is no extradition treaty between the two countries, the foreign country where the offender escaped, can refuse his extradition.
Conclusion
White collar crimes are the most dangerous crimes in the present era as they not only affect people at large but also impacts the economy of a nation to a great extent. India has witnessed many such scams, some of these are fodder scam, satyam scam, hawala scam etc. Vijay Mallya scam is another example of such scams. It was done by a person who was also a Member of Parliament and knows how to escape the criminal liability. This is the reason that he has not been convicted yet despite many efforts of the Indian Government. This is the same as “justice delayed is justice denied” and shows the incapacity of the system to deal with such situations.
As per the reports of Times of India, the courts in UK accepted the request of extradition of Vijay Mallya to India in 2019, but has not been sent back yet as he is trying his best to stay in the country by any means. The country, especially the banking sector witnessed a drop in the economy after the scam by Vijay Mallya. The real estate was struggling and this was the reason that no one came forward to buy the assets of the company for recovery of loans. The Central Vigilance Committee (CVC), as a result, told the banks to have a second layer of verification process for evaluation of loan requests by influential people and businessmen and to have their own consulting agency. Another such recent scam that India faced was done by Nirav Modi in 2018. He defrauded Rs. 11400 crores using fake bank guarantees and fled to London. The case is pending in the court in London.
Frequently asked questions (FAQs)
Who is Vijay Mallya?
Vijay Malllya, is the ex-chairman of United Spirits and the chairman of United Breweries Group indulged in beverage alcohol, fertilisers and real estate business. He was also elected as a member of Parliament two times which shows that he had an influential political background. He became the chairman of the company at the age of 28 and focussed on the growth of his family business and company since then. He is also famous for being the owner of a famous IPL team RCB i.e. Royal Challenger Bangalore.
What is extradition?
Extradition is a process through which a country requests another country where the fugitive offender is hiding, to send him back to his own country. The laws are usually governed by treaties and relations between the countries. It is governed by the Extradition Act of 1962. The concept is based on 3 other principles namely, Dual criminality, Speciality and Political influence.
What is the response of Vijay Mallya to all the allegations?
After the scam in 2016, he ran to the United Kingdoms and has not returned back since then. He denied all the allegations of scam and fraud alleged by the banks and his employees and wrote a letter promising to pay all the money back with proper interest. But he is not acting upon his words and his conduct of not appearing in the court and ignorance towards judicial notices reveals that he has not paid the principal amount.
What is the status of Vijay Mallya’s extradition?
As per the reports of Times of India, the courts in UK accepted the request of extradition of Vijay Mallya to India in 2019, but has not been sent back yet as he is trying his best to stay in the country by any means.
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:
Allow notifications
