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Development Agreement

By
Rachit Garg
-
0

This article is written by J Jerusha Melanie, a student of SRM School of Law, Tamil Nadu. This article seeks to explain the meaning, legal essentials, types, and various other aspects of development agreements. 

It has been published by Rachit Garg.

Table of Contents

Introduction 

The real estate industry is one of the largest industries in India. It contributes to around 6-8 per cent of the Indian Gross Domestic Product (GDP). Employing over 50 million employees, it is the third-largest employer in India. With the growth in urbanization, the real estate industry in India is set to reach a market size of $1 trillion US dollars by 2030. So, it’s apparent why many people like to invest in this steadily-growing industry. 

In India, most people interested in the real estate industry invest in three major forms- residential rentals, commercial or industrial real estate, and vacation rentals. Another profitable option is to jointly develop the land with the help of a developer. A development agreement is entered into for that very purpose. It facilitates both the land owner and the developer to mutually satisfy their needs. Let’s dive in to know all about development agreements. 

What is a development agreement 

Development agreements are also called Joint Development Agreements (JDA). A development agreement is basically a contract between the land owner and a developer, in which the land owner agrees to provide his land to a developer who will in turn develop the land with his own investment. 

It means that the land owner provides the land, and the developer builds on that land. The land owner may either receive a lump-sum consideration, a certain portion of the developed property, or a certain percentage of share in the profits arising from the result of the development according to the terms agreed upon in the development agreement. 

Illustration 

Let’s understand the concept of development agreements with an illustration. Mr A purchased a piece of land in Kanyakumari. Pondering the best way to use the land to get the optimum profit, he listed out the following options before him: 

  • Firstly, to construct a residential or commercial building and then sell or rent it; 
  • Secondly, to lease it; and
  • Lastly, to wait for the golden opportunity for the price of the land to reach considerably high and then sell it off. 

However, none of the above options satisfies him, as he doesn’t have enough funds for construction. Further, his lack of requisite expertise to get the required approvals is hindering him from constructing residential or commercial buildings on his land. Mr A also doesn’t want to go with the last option of waiting for the peak of price-hike, as it’s highly uncertain and time-consuming. 

Meanwhile, Mr B is a reputed industrial developer, who wants to develop a residential property in Kanyakumari. He has the right expertise in getting construction approvals and managing the construction activities. However, considering the trend of the exorbitant prices of land in Kanyakumari, he only has funds enough for the construction. He doesn’t want to buy a piece of land first and then develop it. 

So, Mr A and B come together and agree that Mr A will contribute his land and Mr B will develop the land into a residential property. The deal is that while Mr B gets the requisite approvals, pays for the construction, manages the construction activities, and takes care of marketing the land, Mr A will have no responsibility for the development. All that Mr A has to do is sign an agreement and give his land to Mr B’s control, in return for a share of profits arising out of the constructed property. This agreement is called a development agreement. 

Why is a development agreement needed

Development agreements are common in the Indian real estate industry. It helps in situations where an owner of a potentially profitable land may not have enough knowledge regarding construction and related formalities or has no sufficient funds to start constructing on the land. Simultaneously, it helps the developers who may have sufficient funds and expertise but no land at prime locations.  

A development agreement creates a win-win situation for both the land owner and the developer. Depending on the terms of the development agreement, the land owner will effortlessly receive ready benefits from his land, while the developer gets to develop land and make a profit out of it without actually purchasing the land.

Legal essentials of development authorizations

License

The development agreement serves as a license that is mandated under Section 52 of the Indian Easements Act, 1882 for the developer to enter into and develop the land owner’s property. As per the said Section, to enjoy any non-easement right over somebody else’s property, one should obtain a license from the land owner. So, in the case of development agreements, only upon such a grant can the developer launch the developmental project on the land owner’s activity. 

General Power of Attorney (GPA) Agreement  

A development agreement is just a contract between the land owner and the developer, wherein the land owner provides his land and the developer is responsible to develop the land using his funds and expertise. No transfer of title takes place while entering into a development agreement. Further, under Section 53A of the Transfer of Property Act, 1882, legal possession of the land remains with the land owner till the revenue out of the property’s sale is received. It means that the developer cannot sell the developed property. So, in most cases, the land owner and the developer enter into a General Power of Attorney (GPA) Agreement. 

GPA Agreement refers to the authority given by the principal/ grantor to the agent/ attorney holder to perform a particular task on behalf of the principal. In the case of development agreements, the land owner is the principal and the developer is the attorney holder. Since the development agreement allows the developer to only construct upon and market the land, both the parties enter into a GPA agreement to empower the developer to market (sell) the developed land on behalf of the land owner. The revenue received on selling the developed land is then shared between the parties according to the terms agreed upon in the development agreement.  

Nevertheless, one of the key points to note here is that neither the development agreement nor the GPA agreement facilitates the transfer of title of the land owner. So, albeit entering into and registering the development agreement and the GPA agreement, the land owner has to grant the conveyance deed in favour of the buyers of the developed property. 

new legal draft

Registration

The registration of development agreements and GPA agreements was optional under Section 18 of the Registration Act, 1908, until the recent judgment of the Hon’ble Supreme Court in the case CIT v. Balbir Singh Maini (2017). In this case, the Apex Court held that unless a contract is registered under Section 53 of the Transfer of Property Act, 1882, it is not enforceable by law. Further, it was also held in this case that the registration of any development agreement is mandatory to consider it as a ‘transfer’ of capital assets under Section 2(47)(v) of the Income Tax Act, 1961. 

Now, the registration of development agreements, supplementary deed (if any) and the GPA agreement in the office of the sub-registrar along with the payment of appropriate stamp duty is mandatory to prove its validity. Stamp duties vary from state to state. 

Non-objection Certificate (NOC)

Similarly, a development agreement usually vests marketing rights on the developer. So, the land owner can not sell the developed land without the authorization of the developer. This is why a Non-objection Certificate (NOC) from the developer is mandatory to sell the developed land. 

No registration, no home loan

Most banks refuse to sanction home loans if the development agreement is not registered. It is because, in the absence of registration, there are chances of disputes arising between the developer and the land owner. 

Types of development agreements 

In general, there are two types of development agreements- area sharing development agreement and revenue sharing development agreement. 

Area-sharing development agreement

An area sharing development agreement is an agreement wherein it is agreed that the developer will construct on the land owner’s property using his money and expertise, and in return, the land owner gets a specific portion/ ratio of the developed property. 

Illustration 

Let’s understand an area-sharing development agreement through an illustration. 

Mr A is the owner of land measuring 1 acre. Mr B is a real estate developer. Mr A and B enter into an area-sharing development agreement. According to the terms of the agreement, Mr B must build 5 villas on Mr A’s land. In return for providing the land, Mr A gets one of the newly developed villas. 

Revenue-sharing development agreement 

In a revenue-sharing development agreement, the land owner and the developer agree that while the developer constructs upon the land owner’s property using his money and expertise, the land owner, in return, gets a specific share of the revenue generated by selling the developed property.  

Illustration 

Let’s understand this with the help of an illustration.

Mr A is the owner of land measuring 1 acre. Mr B is a real estate developer. Mr A and B enter into an area-sharing development agreement. According to the terms of the agreement, Mr B must build 5 villas on Mr A’s land. In return for providing the land, Mr A gets a 35% share in the total amount of money received after selling all the 5 villas. The ratio of revenue shared between the land owner and the developer is 35:65. 

Rights and duties of the developer in a development agreement

The following are the rights and duties of the developer in a development agreement:

Rights 

Right to acquire General Power of Attorney 

As aforementioned, the developer is not eligible to sell the property developed under the development agreement, as the title still remains with the land owner. However, it vests on him the right to develop as well as market the property. In such a situation, the developer is entitled to sign a GPA agreement with the land owner, which allows the developer to sell the property on behalf of the land owner. However, it is the land owner who has to grant the conveyance deed in favour of the buyers of the developed property.

Licensee rights

The developer agreement operates as the license-mandated under Section 52 of the Indian Easements Act, 1882 for the developer to enter into and develop the land owner’s property. So, under a developer agreement, the land owner is the licensor and the developer is the licensee. The licensee right of the developer allows him to legally carry on with the development even if the land owner refuses to let him into the property (let’s say in case of dispute). 

Right to develop

The very purpose of signing a development agreement is to vest on the developer the right to develop the property. Through the developer agreement, the land owner authorizes the developer to carry out the developmental project on his land. The development may be in the form of converting the land into plots, constructing residential or commercial buildings, etc. 

Right to seek requisite approvals

Construction activities involve acquiring numerous approvals and compliances from several government departments like Municipal Corporation, Central Ground Water Board, State PWD, etc. The development agreement entitles the developer to seek such approvals required to develop or construct on the agreed land.  

Duties

Bear the developmental costs

The development agreement bestows on the developer the duty to bear the costs of all the activities required to develop the land in the agreed way. It includes the costs of getting approvals, construction, transportation, landscaping, marketing, etc. The land owner’s duty ends by merely providing the land by signing the developer agreement.   

Property marketing

The developer is responsible to advertise the developed property, finding the right prospective buyers, negotiating the price profitable to both himself and the land owner, and selling the property at the right time. 

Acquire the required approvals

As aforementioned, the development agreement vests on the developer the exclusive duty to acquire the required approvals and compliances from respective authorities to legally develop the land. 

Key clauses of a development agreement 

The following are the key clauses of a development agreement:

Recitals 

A recital is the introductory part of any agreement, which explains the purpose of its making. In a development agreement, the recital may state that the developer intends to build residential buildings on the land owner’s property, and the land owner intends to provide his land to the developer in consideration of a specific share of the revenue accrued. 

Parties clause

The ‘parties clause’ is common in almost all agreements. It specifies the name and residential (if the party is a natural person) or corporate address (if the party is a corporate entity) of all the parties involved. In a development agreement, the parties clause will specify the name and addresses of the developer and the land owner.  

Property clause

The ‘property clause’ gives a detailed description of the land owner’s property for the development of which the development agreement is entered. It sketches out the exact location and dimensions of the agreed property. A map of such property’s location is often annexed with the developer agreement.  

Scope of work clause

As the name suggests, a ‘scope of work clause’ elucidates the work that each party undertakes to perform during the term of the agreement. In a development agreement, this clause majorly specifies the kind of development activity that the developer undertakes to do with the property. It may be turning the property into well-distinguished plots, residential or commercial areas, etc. 

Consideration clause

The ‘consideration clause’ clearly specifies the consideration received by the parties. In an area sharing development agreement, the consideration received by the land owner would be a specific portion of the developed property. In the case of a revenue-sharing development agreement, the consideration would be a specific ratio of the revenue accrued after selling the developed property. 

Representations and warranties clause

The ‘representations and warranties clause’ is one of the most important clauses of any agreement. Along with specifying their rights and obligations, it also contains the declarations of the parties. In a development agreement, usually, the land owner- 

  • Affirms (declares) his title and ownership over the agreed property; 
  • Agrees not to grant a lease, mortgage, etc. during the term of the agreement without the prior consent of the developer; 
  • Undertakes not to cause unwarranted hindrance to the developmental activities during the term of the agreement;
  • Grants exclusive license to the developer; 
  • Agrees to execute a GPA agreement in favour of the developer, etc.

Simultaneously, the developer usually- 

  • Undertakes to obtain the required approvals from relevant authorities;
  • Elucidates his plan for developing the property; 
  • Undertakes to execute his developmental plan; 
  • Undertakes to bear the developmental costs;
  • Undertakes to manage the construction activities, etc. 

Term and termination clause

The “termination clause’ specifies the agreement’s duration. In case the developmental work is unable to be completed within such duration due to valid reasons, the term may be extended. The parties can extend the term by mutually signing addendums to the original agreement.  

Governing laws and jurisdiction clause

 As the name suggests, the ‘governing laws and jurisdiction clause’ specifies the law (for example Indian laws) that govern the particular agreement and the court which has the exclusive jurisdiction to deal with it. 

Dispute resolution clause

The ‘dispute resolution clause’ specifies which dispute resolution forum the parties may approach in case any dispute arises. Generally, the parties go for arbitration.

Pros and cons of a development agreement 

Pros

Land procured at no initial cost

As aforementioned, a development agreement creates a win-win situation for both the developer and the land owner. It is the most suitable option for a developer who has an ample amount of expertise in real estate and construction but has no funds to buy properties at prospective locations. By entering into a developer agreement, the developer will be able to build on a prime or prospective location without paying any initial cost. All that the developer has to do is develop the land using his expertise and analyse the market trends, and raise the market value of the property. The increased market value will benefit both the developer and the land owner.

The rapid development of property

By entering into a development agreement, the land owner can facilitate his land to be more speedily ready for marketing. As the developer has the practical know-how for getting the government approvals, supervising the construction activities, and marketing it, the land will effectively undergo fast-track transformation. The land owner’s individual efforts alone may not be possible in such a development.   

Effortless revenue for the land owner

By entering into a development agreement, the land owner exempts himself from the hassle of getting the requisite approvals from relevant authorities. The cost of developing and marketing the property will be borne by the developer. All that the land owner has to do is authorise the developer to launch the developmental plan and wait for its complete execution. He will reap the benefits of the development without doing anything about it. 

Cons

The following are the pros and cons of entering into development agreements: 

Long-term commitment and cooperation

A development agreement demands long-term commitments from both the developer and the land owner. There are ups and downs in the real estate market trends, caused by sudden changes in laws or other unprecedented factors. So, the land owner and the developer have to cooperate and trust each other throughout the lengthy process.

Risks associated with unregistered development agreements

It is extremely important to register the development agreement and its supplementary agreements with the sub-registrar. Apart from the fact that the Supreme Court has now made it mandatory (as aforementioned), the registration of the agreements is critical for both the developer and land owner, but also the prospective buyers of the developed property. It is a safety measure for the developer and the land owner, as they can’t deny the terms and conditions agreed upon by them in the agreement in case of a dispute. As for the prospective buyers, it authenticates the validity of the agreement. It saves the buyers from fraudulent real estate developers. So, it is always pertinent for the buyers of jointly developed properties to make sure the agreement is registered.    

Uncertainty in market trends

The uncertainty of real estate market trends always looms on the developer and land owner. Dynamic factors like the national economy or legislation dramatically affect the real estate market. For instance, the COVID-19 pandemic had a profound impact on the Indian real estate industry. The developer is constantly under the uncertainty of losing the money invested in developing the property, till its final sale.  

Format of a development agreement

The following is the basic structure/ format of a development agreement; 

DEVELOPMENT AGREEMENT

This Agreement is made here at … on this … day of …, 20…, between Mr…, hereinafter called the Owner, the First Party, and Mr…, hereinafter called the Developer, Second Party. 

WHEREAS, the Owner is the true Owner and is in the possession of plot No…, measuring …sq. Feet, registered as Document No. … Book No. … Vol. No. … on pages from … to … dated …

WHEREAS, the Owner is desirous to erect a residential building with a basement, 5 floors, and a terrace, as per the plans that may be sanctioned by the Competent Authority, but not fully qualified to do so, and has approached the Developer who, on being guaranteed by the Owner that the said plot is free from all kinds of legal flaws, dues, claims, etc., and that the said plot is a self-acquired property, has agreed for the construction of a residential building on the said plot, as per the terms and conditions agreed hereinafter. Now, this Agreement witnesseth as follows:

  1. The Developer has agreed to pay a sum of ₹… as security for the due performance of the terms and conditions of this Agreement and the successful completion of the construction. 
  2. The Developer has agreed to build the residential building with a basement, 5 floors, and a terrace, as per the construction plans agreed upon by the Owner and the Developer and sanctioned by the Competent Authority. 
  3. Upon the default in payment by the Developer, the Owner shall be entitled to terminate this Agreement. Upon such termination, the Developer shall remove all the erected structures within 2 months of such termination, and the Owner shall not be entitled to pay any sort of compensation for the same. However, without prejudice to his rights, the Owner may pardon the default in such payment by the Developer by extending the due date if the Developer pays a 5 % (per annum) interest on the due payment
  4.  The Owner shall execute powers of attorney by separate documents in favour of the Developer for submitting the required document for obtaining various approvals and other purposes in connection with the terms and conditions of this Agreement. However, the Developer undertakes not to misuse the powers conferred upon the Developer by the Owner.
  5. The Owner gives license to the Developer to enter upon the said plot with all the rights to commence, carry on, and complete the construction thereof. The Developer shall, in no way, assign the rights vested upon him through the said license to any other party, provided, with the prior permission of the Owner. 
  6. The Owner shall not interfere with or obstruct the construction of the said residential building. However, the Owner shall have unobstructed access to the plot at all times and be free to point out the construction flaws, if any. 
  7. The full cost of construction of the said residential building (including material and labour costs, and the requisite fee for getting the approvals from the Competent Authority) shall be borne by the Developer. 
  8. The cost of registering and stamping this Agreement shall be borne by the Developer. 
  9. The property tax till the execution of this Agreement shall be payable by the Owner. Thereafter, the Developer shall pay property tax till the completion of the construction.  
  10. The Owner shall cooperate to execute, sign, and deliver any such document that may be required for fulfilling the terms and conditions of this Agreement. 
  11. The construction of the said residential building shall be completed within … months from the date of executing this Agreement. However, delays that are caused by reasons beyond the powers of the Developer, including natural phenomena, changes in laws, strikes, etc., shall be pardoned. 
  12. The Owner shall deliver all the original documents of the plot to the Developer at the time of executing this Agreement. Such documents shall be returned to the Owner upon the completion of the construction. 

IN WITNESS THEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATE HEREABOVE MENTIONED: 

This Agreement is signed by: 

Mr_________ Mr__________

Please note: The above format is a basic sample of a development agreement with only the most essential points. It is always advised to seek legal assistance for preparing such documents.

Conclusion

A development agreement is a contemporary version of the barter system followed ages ago. It’s one of the latest genres of contracts born out of necessity and industry practices. News of frauds in the real estate industry often surfaces over the internet and on news channels. So, one must be always vigilant while entering into development agreements, or any agreement for that matter. Beware, and avoid spending your precious time and money on legal battles.  

Frequently Asked Questions (FAQs)

Can developers sell the properties developed under a development agreement?

No, developers can not sell the property developed under a development agreement because the title of the property remains with the land owner till its ultimate sale to the buyers. 

Is it mandatory to register a development agreement?

Yes, as per the Hon’ble Supreme Court’s recent decision, it is mandatory to register a development agreement. 

What is the typical percentage of the land owner’s revenue share in a development agreement? 

Typically, the land owner receives a revenue share of 30- 40 per cent in a development agreement. 

References 

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Article 131 of the Indian Constitution

By
Rachit Garg
-
0

This article is written by Mrinal Mukul, a student at O.P. Jindal Global University, Haryana. This paper talks about Article 131 of the Indian Constitution in context of the Supreme Court and its power to listen to the matters between two states or between the centre and the states.

It has been published by Rachit Garg.

Introduction

According to Article 131 of the Constitution, the Supreme Court has exclusive and original jurisdiction in matters of law between states or between states and the Union. The courts protect the fundamental rights of all citizens, and any violation of these rights may be brought immediately to the High Court of that particular state under Article 226 of the Constitution or to the Supreme Court under Article 32 of the Constitution. However, if, for some reason, a question of state matter arises on certain specific grounds, the original jurisdiction of the Supreme Court is asserted by Article 131. Constitution-makers see Article 131 as crucial because of India’s quasi-federal government. The possibility of conflict between states or between the centre and the state is high, and the constitutional authors believe that the decision-making power in such cases should be clearly stated. As the highest judicial body, the Supreme Court is vested with original and exclusive jurisdiction.

Article 131 has many roles in implementing cooperative federalism. The very first reason is that it helps in resolving disputes between the federal states and disputes between the centre and states. Such a view strongly suggests that the Constitution-makers have given great importance to the federal structure. It is also a way of maintaining the federal nature of the Indian polity, which will be discussed in this paper.

What is Article 131 

The Judicial, legislative, and executive are the three pillars of Indian democracy. A balance, as opposed to conflict, is necessary to achieve the ultimate public interest and the smooth functioning of constitutional institutions. The powers of parliament are limited within the four walls of the Constitution, yet ensure a balance between the different pillars without encroaching on each other’s area. Furthermore, judicial review includes the power of the judiciary to review any legislation and judicial actions, embody the rule of law, and uphold the principle of separation of powers at the grassroot level.

Article 131 of the Indian Constitution gives the Supreme Court primary jurisdiction over all interstate or center and state disputes. Article 131 gives the Supreme Court the power to deal with such cases directly, rather than through lower courts or reviewing lower court decisions. Under the provision, the Supreme Court has the power to hear cases at first-hand, as against appellate jurisdiction, where the Supreme Court has to review decisions of lower court. According to Article 131 of the Indian Constitution, the laws of Parliament are considered valid unless the court decides otherwise. Interstate conflicts are common in India’s quasi-federal constitutional system. The drafters of the Constitution foresaw such differences and resolved them by enacting Article 131, which gave the Supreme Court the sole initial authority.

Under Article 131, there is a high probability of disagreement between states or between centre and states, and the drafters of the Constitution believed that the decision-making power should be clearly expressed in such cases. The Supreme Court has original and exclusive jurisdiction because it is the highest judicial body. It’s exclusive original jurisdiction extends to cases related to the Government of India and the states of India.  

Nature and Scope of Article 131

India is a federation and the Supreme Court is the Federal Court of India, where the powers are divided between the centre and state governments. The Supreme Court of India is the ultimate authority to ensure that both the federal and state governments support constitutional separation of powers. Therefore, Article 131 of the Indian Constitution gives the Supreme Court primary and exclusive jurisdiction to adjudicate disputes between the Union and the states or between the states. The Supreme Court’s interpretation of the Constitution must be acceptable to all. It interprets and upholds the Constitution. If the case involves fundamental rights of law for the interpretation of the Constitution, upheld by the High Court or at the discretion of the Supreme Court, an appeal should be made to the Supreme Court for interpretation of the points of law it raises.

The nature of Article 131 is governed by constitutional provisions and is limited to disputes referred to in the Article itself. But it can be seen that the jurisdiction is very wide, provided the dispute is a justiciable one. The Article does not specify the type of dispute but is subjective to judicial interpretation and the facts of the case as to whether it meets the requirements of Article 131. It was the intention of the framers of the Constitution that such disputes should not be subject to several judicial hierarchies but should be brought to the Supreme Court once and for all.

In accordance with the provisions of the   Constitution, the Supreme Court to the exclusion of all other courts, has original jurisdiction in disputes: 

  1. Between the Government of India and one or more states; or
  2. Between the Government of India and one or more states on the one hand and one or more other states on the other; or
  3. Between two or more states if the dispute concerns an issue (law or fact) on which the existence or scope of a legal right depends.

In essence, Article 131 clearly expresses that our Supreme Court is the guardian of the fundamental rights guaranteed by Article 14, which provides that any violation of the fundamental rights, then one can directly appeal to the Supreme Court enshrined in Article 32 of the Constitution (which is also a fundamental right). But when a dispute happens between the states or between the state and the central government, then the jurisdiction to solve such matters lies on the Supreme Court under Article 131.  

new legal draft

What disputes are allowed under Article 131

A precondition for bringing an action under Article 131 is that there is a dispute between the parties, and such disputes must involve a question of law or fact that transcends any statutory or constitutional rights. Such disputes should not involve political conflicts unless legal rights are involved. At first glance, Article 131 seems clear, but when we analyse the cases related to it, legal dilemmas arise. However, it is necessary to remember that the Supreme Court will have exclusive jurisdiction, excluding all other courts, and such dispute must be between either the Central Government and one or more states or states or between two or more federal states. Lastly, these kinds of disputes must involve the question of law on which the existence or scope of a legal right depends.

Legal rights of the state: The Supreme Court is the guardian of individual liberties and fundamental rights. Furthermore, Article 131 of the Indian Constitution provides that whenever a state feels that it’s legal rights have been violated, it can take the matter to the Supreme Court. It thus prevents an infringement of the legal right of the state government. 

Can a state challenge Central Law 

Our Indian Constitution states that whenever a state feels that its legal right is under threat or has been violated for some reason, it can take the dispute to the Supreme Court of India. In many instances, states have filed such cases under Article 131 of the Indian Constitution against the neighbouring states due to some boundary disputes or because of other reasons. However, there are some incidents when such cases are filed against the Centre too.  

Furthermore, it is important to remember that a state government can challenge central laws, but it has certain terms and conditions. If the central government alters the federal structure of the Constitution, then it can be challenged, but the ultimate interpreter is the High Court and the Supreme Court of India. They have the authority to declare any central or state law unconstitutional.

It is understood that India is a Union of States, which means both central and state governments will work in unison for the country’s overall development. This also demonstrates that neither the central government is the master nor the state government is the servant. Both governments are expected to work in a complementary manner with each other. Thus, the laws made by the centre cannot be above the sovereignty of the state government. All this means that the central government cannot enforce the law unilaterally, which is why consultation with the concerned state government becomes important. Mostly in all instances, the state government will be taken on board before deciding on any matter. As we all know, the state government works closely with the people’s aspirations and the people are also better known by the state administration, which means the state government’s decisions become very important in the law-making process.

If, in certain situations, the central government brings a law without consultation with the state government and such laws are apparently against the will of the people of the state, then, it is the right of the state government to challenge such laws. Such a challenge can only be done in the Supreme Court.

Similarly, if any legislation is brought unilaterally without due consultation with the state government or the opposite parties, then, such legislation may meet with criticism from the public at large.

Is it usual for states to oppose laws made by the centre

It is not usual for states to oppose the laws made by the centre, but under the leadership of a powerful centre with an overwhelming majority in parliament, fault lines in India’s federal structure are often exposed. State governments have criticized several laws since the Narendra Modi government came to power in 2014. The most recent one is Farm Laws. Several states and farmers went to the Supreme Court challenging the laws. In this case, the Supreme Court ruled that any dispute between the Union of India and the states can be legally adjudicated under Article 131. Hence, it can be concluded that by infringing the original jurisdiction of the state, the union has tried to change the basic structure of the Indian Constitution, namely the federal structure. The petition was supported under Article 131 because the central government violated the constitutional provisions. These issues have been the focus due to contrary views between the centre and state ruled by opposition parties.

Most commonly, such disputes arise when the center encroaches upon the powers of a state by enacting legislation on matters that fall on the state’s list or when the center enacts other laws that affect the state’s statutory or constitutional rights. The most recent example of the centre and state dispute is the Disaster Management Act of 2005, which was implemented due to COVID-19 pandemic. The Act has drawn discontent among states because central guidelines are binding on them, even though public health is a state department. The drive to pass central laws that interfere with state rights stems from the ambiguity of Article 131, which gives Parliament the freedom to change or pass laws without fear of consequences. The purpose of Article 131 of the Indian Constitution is to preserve the spirit of cooperative federalism. Under this provision, the Supreme Court has initial jurisdiction over disputes between states or between the centre and state.

In addition, the Seventh Schedule of our Indian Constitution is sub-divided into three lists: the Union List, the State List, and the Concurrent List, which provide comprehensive information on the legislative powers of parliament and about the state. Despite such stark differences, the dispute between the centre and the state remains an ongoing issue. The latest example of such a dispute is the Centre’s decision to expand the BSF’s jurisdiction over the territories and powers of the three border states of Punjab, West Bengal, and Assam.

Landmark judgments regarding Article 131 

State of West Bengal v. Union of India (1963) 

In the case of State of West Bengal v. Union of India (1963), the parliament passed the Acquisition and Development Act, 1957, which gave the Central Government the power to acquire land vested with the state government. This was the first case when Article 131 was invoked by the state government against the central government. The Supreme Court stated in this case that our Indian Constitution is not entirely federal, and no compensation was given to the West Bengal government. However, it did not discuss the maintainability of a suit under Article 131. 

As noted, it did not venture into the constitutional validity of Article 131. Still, its decision to hear state challenge against the center under the Article shows that the Constitution allows states the right to challenge parliamentary laws. 

It was held that the Acquisition and Development Act, 1957 was not held ultra vires, the scope of authority of the Parliament but was held to be valid. According to Entry 42 of List III of the Seventh Schedule to the Constitution of India, the Parliament has the power to legislate on the acquisition of property by the state.

State of Karnataka v. Union of India and Another (1977) 

In the case of  State of Karnataka v. Union of India and Another (1977), the main argument of the state government was that, under The Commissions of Inquiry Act,1952 the central government does not have the power to appoint commissions of inquiry to deal with the affairs of the state legislature and executive. The Commission of Inquiry examines the conduct of the Chief Minister of State with other ministers, so it is about the relationship between the centre and the state. But the federal government said that the Supreme Court would not have the power to consider the matter as it has jurisdiction under Article 131 of the Constitution. 

The relevant point for the present purpose is the fact that by a majority judgment, the proceeding was held to be valid, and the court specifically stated that in this context, the supposed distinction between the State (an abstract entity) and the State Government (its concrete representative), was immaterial.

State of Madhya Pradesh v. Union of India and Another (2011) 

In the case of  State of Madhya Pradesh v. Union of India and Another (2011), the court held that central laws could be challenged in the State High Courts and Supreme Courts under Article 32 and 226 of the Constitution and held that the constitutional validity of central laws generally could not be challenged under Article 131. 

However, a few years later, in another case, it contradicted the previously mentioned ruling by stating that the use of Article 131 as a supplement to Article 32 to deal with disputes between States and the Centre. Furthermore, the court made it clear that it could not accept that the constitutional validity of the central law could be challenged under Article 131. Since the court did not have the necessary power to set aside the preliminary decision, it left the matter to a larger divisional decision. This inconclusive situation has not been resolved, though both judgments serve as precedents for future reference. This further exacerbates disputes between the center and the state, as parliaments can make laws that violate the latter’s powers.

State of Jharkhand v. The State of Bihar and Ors. (2014) 

Later, in the case of State of Jharkhand v. The State of Bihar and Ors. (2014), if a dispute is of a federal nature, then it can be heard under Article 131. The Supreme Court has dealt with Interlocutory Application (hereinafter,I.A.) No. 5 filed by Jharkhand. In the lawsuit, Jharkhand sought to explain that the proportion of the number of workers in each successor state for the allocation of pension liabilities was based on the ultra vires in Clause 4 of the Eighth Schedule to the Bihar Reorganization Act, 2000 Constitution. Article 14, alternatively, read down the aforesaid words contained in Clause 4 of the Eighth Schedule of the Bihar Reorganization Act 2000 as “Population Proportion.”

The Supreme Court upheld Article 131 as an appropriate tool for reviewing the constitutionality of central laws. The court ruled that a condition for invoking the court’s jurisdiction under Article 131 was that the action should concern the existence or scope of legal rights, not political rights.

Thus, in recent times, the states may move to the Supreme Court under Article 131 if any legal or constitutional rights get infringed. However, it is essential to remember that the states cannot question the legality of central laws based on an ideological or political basis.

Conclusion 

Two key takeaways that need to be remembered from this article: The disputing parties can only be the state or the central government itself. Since the definition of “state” in Article 131 is different or broad from the definition of “state” in Article 12 of the Constitution, any corporation or private entity that is considered a state will not be considered a state under Article 131 of the Constitution.

When hearing a lawsuit, the court should seriously consider the original intention of the drafters of Article 131 when the Constitution was drafted. Even if fundamental rights and secularism are allegedly threatened, these considerations must not prevent the court from deciding the true purpose of Article 131. The maintenance of the federal structure is an equally important constitutional matter, and courts should bear this in mind in case of its scope and importance.

Furthermore, the purpose behind Article 131 of the Indian Constitution is to uphold the spirit of cooperative federalism between the organs of the government. Under this Article, the Supreme Court has the original jurisdiction to adjudicate upon the matters of dispute between the states or between the centre and state. In today’s scenario, such an Article plays a crucial role because it deals with the balance of power and, simultaneously, the role of the judiciary where the question involves interpretation of the Constitution. 

Frequently Asked Questions (FAQs) 

Who all can approach the Supreme Court under Article 131?

Answer. Article 131 provides the forum for both central and state governments to fight on legal issues against each other and not merely on political issues.

Can the Supreme Court declare a law unconstitutional under Article 131?

Answer. While previous judgments found that the constitutionality of the law could be tested under Article 131, the 2011 judgment in Madhya Pradesh v. Union of India found the opposite

Can a centre also sue a state under Article 131 of the Indian Constitution?

Answer. The centre can issue directives to states to enforce laws passed by parliament. If states do not comply, the centre can ask the court to obtain permanent injunctions against states to force them to comply with the law.

References

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

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

https://t.me/lawyerscommunity

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

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Is escort service legal

By
Sneha Mahawar
-
0

This article is written by Prabha Dabral from IMS Unison University, Dehradun. This is an informative article that deals with the prostitution and escort service along with their legal status in India. 

This article has been published by Sneha Mahawar.

Introduction

Sex work is considered the oldest occupation in India and even in the 21st century, it still remains taboo. In this country, a confused sense of morality runs high. The women involved in this profession are subjected to social discrimination and ostracism. The major reason behind this situation is that the law remains ambiguous about sex work and other activities related to it. This is why there is a huge misconception that prostitution is illegal in India. The prostitution service is considered immoral but it is actually legal. Only a few related activities like soliciting in a public place, kerb-crawling, owning or managing a brothel, prostitution in a hotel, child prostitution, pimping, and pandering, are considered illegal.

On the other hand, the escort services fall under the grey area between legal and illegal. This is because websites and agencies tend to hide between friendships to describe the service. Hence, the cops can not arrest them. One can say that escort services are not explicitly illegal in India. Providing a social or conversational service is not illegal, but taking payment for sex or communicating for arranging a contract for sexual services is.

The escort services had started in ancient times. During that time, the main name of this service was prostitution. But it is illegal if carried out as a local arrangement between parties. Hence, people came up with companies having escorts who can do it as a legal business. The main work of these escorts was to entertain people. This practice was very common in Asia. Only the wealthy people could afford these services and were fond of educated women as they had a high level of sophistication. There were many women interested in this activity and were called escorts. 

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What are escort services 

An escort is a euphemistic term for a prostitute. They are referred to as a high-end sex worker who provides more than just sex. Technically, an escort is a companion who receives compensation for spending time with a client. Some escorts act like girlfriends or wives, etc., and accompany high-profile clients. They are trained and well-groomed so they easily adjust to the luxurious lifestyle. They are more educated also and are cultured enough to provide social escort services, engage in engaging conversation, and provide a girlfriend or boyfriend experience. Since they provide these extra services, they demand higher pay.

The compensation mentioned in this escort service is in the form of a donation. The client agrees to pay a donation for an agreed amount of time. In this arrangement, there is no mention of sex or any other sexual activity. It is just about the time spent with the client. It can be for a social event or a dinner date, etc. What happens between the two consenting adults during that time is between the two of them. As long as, money for sex or a particular sex act is not a part of the conversation, the arrangement purely refers to an escort service.

Escorts in this country are mostly struggling actors and models. People from the corporate sector or other sectors often join the escort profession for a limited period. This service provides them with a quick way to earn a lot of money. For a simple photoshoot, they may earn Rs. 2000 a day but an escort job approximately pays between Rs 20,000 to Rs. 40,000. “This business helps them sustain their lifestyle and buy clothes”, says one agency owner. 

Escort agencies have now moved from print classified to online advertising. Other than websites, social media is now used to solicit clients. Earlier pictures of escorts were mailed to the client but today it is done through Whatsapp and the payment is also transferred online. These all are the activities included in an escort service.

Laws related to escort services

Sex work in India is primarily governed by the Immoral Traffic (Prevention) Act (ITPA), 1956. The Indian Penal Code (IPC), 1860, and The Juvenile Justice ( Care and Protection of Children) Act, 2015 also contain certain provisions that deal with prostitution and trafficking. 

Indian law so far is mostly concerned with human trafficking and prostitution having a major focus on women and children. There still exists a lack of regulation of escort services. Under Indian law, prostitution from consenting sex workers is not illegal until and unless the remuneration is received in exchange for sex with consent and without prior solicitation.

There are some other provisions related to this profession. Section 2(f) of The Immoral Traffic (Prevention) Act, 1956 defines “prostitution”. It defines the term as sexual exploitation or misuse of any person for any business purpose. Section 372 and Section 373 of the Indian Penal Code, 1860 also deal with the provisions of prostitution but it is restricted to child prostitution only. 

Some other sections like Section 366A, 366B, and 370A of the IPC deals with punishing for offenses of procreation of a minor girl, importation of a girl from a foreign country for sex, and exploitation of a trafficked person respectively. Thus under IPC, laws related to prostitution are quite limited. 

The Constitution of India under Article 23(1) prohibits trafficking in human beings, beggars, and other similar forms of forced labour. Any contravention of this provision shall be an offence punishable as per the law under Article 23(2).

The need for regulation

Many schools of thought argue that sex work should be treated just like any other profession and should have the benefits that any other legal profession has. This is because just like any other profession, this profession also serves as the only source of income for some people.

There is a Delhi-based writer and photojournalist named Mayank Austen Soofi. He has written extensively about the brothels on the GB Road and has said that every sex worker he has met wants to be recognised legally because of the same reason. Nearly 7000 sex workers in Sonagachi i.e. Asia’s largest red-light district in Kolkata, admitted that they have no other means of survival. For some, being in the business of prostitution was the only source of their income. Some women have escaped from abusive marriages, rebuilt their homes, and single-handedly educated their children with the money that they earned from this profession.  

Other than this, a lot more issues can be solved by making this profession legal.

Lalitha Kumaramangalam, who is the head of the National Commission for Women, argues that a regulated industry would help to stop forcible trafficking, improve hygiene among workers and clients and limit the spread of HIV and other diseases. Moreover, sex workers live in deplorable conditions and are often exploited by their pimps(men who control prostitutes and arrange clients for them, taking a percentage of their earnings in return). Very often, the sex workers are physically assaulted by their clients too. They are highly vulnerable to diseases from having unprotected sex. They don’t even have easy access to healthcare and hesitate to go to doctors or the police for fear of harassment. Making the profession legal would help prevent these exploitations. 

To fight the hygiene issues,  an NGO called Durbar made an effort in 1992 to unionise (make everyone act together) the sex workers of Sonagachi in Kolkata. The NGO brought all these sex workers together and empowered them to refuse sex without a condom. At present, all those sex workers at Sonagachi are a part of the union.

For escorts, selling their services on the anonymity of the internet can invite fraud too. As there is no telling who is buying services on the other end. They have to protect themselves when the law refuses it since an escort service is not a legal profession either. This can be proved by an incident that happened in Delhi. In the year 2016, the Delhi police rescued a 26-year-old aspiring escort who was being held captive for money. He was abducted by a group of 6 men who pretended to run a fake escort company. To avoid more of these incidents there is a need for laws protecting the people in this profession. The idea is neither to isolate these people nor to perceive them with pity. It is to straight-up give them the rights they deserve and enable them to protect themselves. 

As per Article 21 of the Indian Constitution,  the right to life is also applicable to prostitutes. In the case of Budhadev Karmaskar v. State of West Bengal (2011), this was explained clearly. It was held in this case that the sex workers are also human beings and no one has the right to assault or murder them. The judgment directed the Central and the State governments to open rehabilitation centres and impart technical and vocational skills so that these workers attain other means of livelihood.

Moreover, Section 21 was incorporated under the Immoral Traffic (Prevention) Act. The section gives the state governments power to establish and maintain protection homes that are to be regulated by licences issued by the government. Protection homes are for those prostitutes who have lost their livelihood or those who were being forced into this profession of prostitution but do not want that lifestyle.

How is escort service different from prostitution 

Both escorts and prostitutes spend time with some person in exchange for money. It is their activities involved during the time spent together that determines whether a person is an escort or a prostitute.

Prostitution refers to the act of engaging in any sexual activity in exchange for anything of value from the client. In other words, it means offering to pay for sex with anything of value. On the other hand, escorting refers to paying someone for accompanying the client to an event or on a date. For example, escorting someone for a dinner date. Unlike prostitution, it does not necessarily include sex. Some prostitutes often disguise themselves as escorts to avoid getting in trouble. It is a very common practice and the police are aware of such practice. As in many countries other than India, prostitution is illegal but escort services are not. Hence, there are a few points that help distinguish an escort service from a prostitution service. They are as follows-

  • An escort, in most cases, accompanies their client to some social function or any other engagement whereas a prostitute does not attend functions with their client and does not leave the premises.
  • An escort may work under a contract for several days or even weeks whereas a prostitute is usually engaged for a shorter period.
  • Escorts sell their time. They give companionship and time to the client. There may or may not be any sex involved since that is not the purpose of the arrangement. On the other hand, a prostitute is hired only for sexual acts. A prostitute charges by the hour or by the specific sexual act.
  • Escorts are professionals. They need to be hired through escort agencies. Some escorts even have their websites. On the other hand, a prostitute can be hired from the street. 
  • Escorts are usually socially adept, attractive, and presentable. They are a suitable companion for presenting to friends or colleagues. But this is not the case for prostitutes.
  • Escort service is legal in some countries as people are not getting paid for sex, whereas Prostitution is illegal. If someone is caught providing sex for money will be taken to jail and penalised.
  • Escorts are mostly considered part of the entertainment industry. They earn a huge amount of money and get the opportunity to enjoy a luxurious lifestyle. On the other hand, the workplace for prostitutes is a big concern as they give services in brothels that are usually unhygienic. 

Are escort websites legal

Escorts are professionals and they need to be hired through agencies or their websites. It can be said that an escort agency is more like a virtual brothel or a brothel on the internet, where customers go to a particular website and book their escort. 

The law is silent on what constitutes an escort website as said by The Supreme Court advocate, Pavan Duggal. He refers to the Information Technology Act, 2000 and mentions that if the escort websites use language which is obscene, lascivious, or appeals to prurient interests, then that website comes within the ambit of illegality. 

There are certain acts in our legislation that list out the illegal activities done in this profession that are forbidden by the law. So, the websites that do not comply with the law are not considered legal. Some of the provisions are mentioned below-

  • The Indecent Representation of Women Act, 1986 prohibits the publication of any material that represents a woman indecently or derogatorily injuring the public morality or morals. 
  • Section 67 of the Information Technology Act criminalises those publications that are lascivious or that appeal to prurient interests and are morally corrupting. 
  • Section 8 of the Immoral Traffic (Prevention) Act, 1956 talks about the legal status of “soliciting in public”. It says that when a person solicits any person in a public place in a way offending the public decency, then that person is committing a criminal offence. If we look at the entire chain of events that take place in an escort service, one can comfortably argue that an escort indeed solicits their customers on the internet through their profile on the website. Here, the internet can be argued to be a public place or space. 

If any of the websites offering escort services display such materials that are prohibited under these statutes, then they would violate the law.

Blocking escort websites

There is a Section under the IT Act that specifically deals with the blocking of websites i.e. Section 69 A. This Section authorises the government to issue blocking orders. There are even regulations that provide the details on the procedure to be followed while the government exercises its powers to block websites. These are mentioned in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 or the Blocking Rules. 

As per Rule 10 of the blocking rules, the government shall have the power to take action after it has received the certified copy of any order for blocking by a competent court.

In 2019, the Government of India banned a total of 240 websites that were offering escort services. It was done on the recommendation of an expert committee under the Ministry of Home Affairs. However, the industry criticised this move of the government and thought it to be directionless. It was said that the order had been issued without going into the essential technical details around it. Moreover, the website could again start working if the website slightly changes the name or the link. To control such activities, mobile numbers on the websites needed to be tracked. 

Provisions of the Information Technology Act that come into play concerning websites providing escort services

Various laws regulate the working of websites. These laws are there to regulate the content of these websites so that peace and morality among the public can be maintained. This is important because the wrong content of a website can mislead the public, at large. There were lots of cases of cyber-attack which made a need for the lawmakers to bring a separate statute for cyber crimes. Hence, the Information Technology Act, of 2000 came into force to prevent cyber crimes against people.

Section 69A of the Information Technology Act, 2000

Section 69 of the IT Act empowers the Central or the state government to direct any agency to monitor, intercept or decrypt any information generated, received, or stored in any computer resource. Section 69A of the Act comes into play concerning websites providing escort services. This Section allows the government to deny public access to such websites or any apps which are found to be misleading and a threat to the national security of the nation. The intermediary who fails to comply with the direction issued by the government shall be punished with imprisonment for a term that may extend to 7 years and shall also be liable to a fine. 

Section 79 of the Information Technology Act, 2000

This Section talks about the intermediary liability law which protects the service providers against any illegal activities of the user (i.e.third-party)  on their platform. The Section also places certain obligations on intermediaries to remove or disable access to the information upon being notified by the government.

Conclusion

Prostitution is not explicitly illegal, though it is declared to be unethical by court. Only certain actions related to it are regarded as illegal in the eyes of law. For example, when prostitution is done in private with one’s consent and without prior solicitation it may at times not be illegal. But running a sex racquet is illegal. An escort on the other hand is not a criminal either. He/She has a right to give their body to anyone whoever they wish to please. Besides, an escort business usually involves accompanying the VIPs to important events. This arrangement may or may not end in sex. 

These are the professions that are still frowned upon. The abolition of these professions is a difficult task to achieve since it is an ancient practice and has existed for too long. Clearly, it is because of the lack of enforcement of laws that these professions still exist. So, to combat this issue, the legalisation of this profession can be an option. At least, the state will require some responsibility and can issue licences to authorised persons. This can eradicate sex racquet operations and the frauds done by fake escort websites too. 

FAQs

  • Can I be punished for simply contacting an escort agency?

No, a person contacting an escort agency can not be punished because no law criminalises such an act.

  • Are newspaper advertisements for providing escort services legal?

No, such an act is not legal because it constitutes solicitation and that is an offence under the law.

  • What is the punishment for child prostitution as per Indian law?

The IPC, 1860 penalizes child prostitution. It grants 10 years of imprisonment or a fine for a person convicted of buying or selling children for prostitution.

  • Is it legal to operate an escort website in India?

The answer is no. Operating a website will amount to solicitation which is an offence under the Prevention of Immoral Traffic Act, 1956. 

  • What are the shortcomings of law related to escorts?

The laws related to escorts are not yet fully evolved. Moreover, no statute mentions the right of any sex worker. 

  • Is hiring escorts without involving third parties legal in India?

As long as, there is no involvement of payment for sex or any communication done for arranging a contract for sexual service, hiring an escort is not illegal.

References 

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

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

https://t.me/lawyerscommunity

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

Download Now

The legal acceptance of cryptocurrencies in the world

By
Sneha Mahawar
-
0

This article is written by  Devansh Sharma. This article has been edited by Ojuswi (Associate, Lawsikho). 

This article has been published by Sneha Mahawar.

Introduction

We all have heard about cryptocurrencies and the hype. There are investors, who have experienced major gains overnight while for some it didn’t work like a charm. Most countries have shown no trust in the blockchain and have taken extreme measures to make it illegal or to discourage their citizens from investing in it; some countries have shown utmost faith and see this newly emerging area as an opportunity.

What exactly is a cryptocurrency

A cryptocurrency is an encrypted data string that denotes a unit of currency. It is monitored and organised by a peer-to-peer network called a blockchain, which also serves as a secure ledger of transactions, e.g., buying, selling, and transferring. 

Countries where cryptocurrencies are accepted

El Salvador became the first country in June 2021, to pass Bitcoin as a legal tender along with their national currency, US Dollar.

In April 2022, The Central African Republic announced bitcoin as an official currency. It became the second nation in the world and the first in the African Continent. Even the taxes can be paid in cryptocurrencies to the government through various digital platforms.

Few other countries allow the bitcoin transaction, but allow this freedom with strict rules and orders. This is because of the volatile nature of the cryptocurrency and the unkept account summary of its transactions. Here is the list of a few such nations:

The United States of America

In 2010, Lazlo Hanyecz made the world’s first-ever Crypto Transaction of 10,000 BTC for two pizzas in Jacksonville, Florida. The same amount would have amounted to $600 Million as of April 2021. Today, almost 13 percent of the total business accepting payments in Bitcoins is established in the USA.  Miami’s Pizza Bar or Portsmouth’s Seacoast Repertory Theatre are examples of the places which accept payments in bitcoins.

The U.S. Department of Treasury’s Financial Crimes Enforcement Network (FinCEN) has been issuing guidance on the trading of Bitcoin since 2013. Any entity dealing with the administration or exchange of Bitcoin falls under the definition of a money service business (MSB). Additionally, FinCEN is developing regulations for financial and non-financial institutions to keep a check on the AML and CFT activities through cryptocurrencies.

Canada

The nation has been welcoming to the idea of the digitalization of currencies and has recognized it as a commodity under the authority of the Canada Revenue Agency, for Capital Tax purposes. It has been observed that the number of businesses accepting payment transactions in bitcoin is increasing continuously.

Due to its acceptance as a money service business, the trading of cryptocurrencies is administered under the purview of the Proceeds of Crime (Money laundering) and Terrorist Financing Act. Thus, such records of transactions are needed to register with the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC). It looks for any illegal transactions, abidance of compliance plans, and storage and management of the records.

Australia

Australia has declared Bitcoin as a legal tender but limits the freedom under the Anti-Money Laundering and Counter-Terrorism Financing Act. Moreover, the country allows the Capital Gain Tax on the cryptocurrencies, i.e., there shall be a tax levied on the profit incurred on the investment in crypto chains.

European Union

The EU recognises cryptocurrencies as crypto assets. It allows the trade of the following but the European Banking Authority keeps warning the citizens to be aware as the blockchain transaction and technology are risky and, not under its purview and control.

However, in 2015, the European Court of Justice (ECJ) considered the blockchain trade as a ‘supply of service’ and exempted it from Value-Added Tax (VAT). In 2020, The European Commission finalized a proposal to regulate crypto-assets. This was done to provide a financial regulatory framework and ensure safe access and usage of cryptocurrencies. Member states like Belgium, Finland, the UK, and Bulgaria have developed their initiative to facilitate the Blockchain trade. 

Israel

Israel is the growing hub for start-ups. Many new start-ups are accepting payments in Bitcoins. Till now, 11 Bitcoin ATMs have been opened in Israel. Trading in cryptocurrencies is easy in the nation.

As per the reports of The Library of Congress (LOC) of November 2021, it recognizes the establishment of financial regulatory agencies in 103 nations to develop procedures and rules to deal with the cryptocurrencies and their use in AML/CFT.

UAE

Recently, the ruler of Dubai and also vice-president and prime minister of the United Arab Emirates (UAE) Sheikh Mohammed bin Rashid Al Maktoum announced that UAE has adopted its first law to regulate crypto assets. Such laws have been established and shall be executed under Dubai Virtual Asset Regulatory Authority (VARA). The following laws shall not apply to the state-owned financial free zone, Dubai International Financial Center (DIFC).

Some other countries where the usage of Bitcoins in transactions is allowed are:

Iceland, Japan, Mexico, Albania, Hong Kong. Cuba, Iran

Countries where Cryptocurrencies are Illegal

The November 2021 update by the library of Congress identifies 42 countries to have implicit bans on blockchains. Some of them are: Bahrain, Burundi, Cameroon, Gabon, Georgia, Guyana, India, Kuwait, Lesotho, Libya, Macao, The Maldives, Vietnam, Zimbabwe

Countries with Absolute Ban: Algeria, Bangladesh, Bolivia, China, Egypt, Indonesia, Iraq, Morocco, Nepal, Qatar, Russia, Tunisia, Turkey

Countries with Implicit Ban: Saudi Arabia, Senegal, Tajikistan, Tanzania, Togo, Turkey

Why do some countries have reservations against the blockchains

Most lawmakers have been facing trouble in dealing with cryptocurrency as there is not enough understanding of how the crypto chain works. Due to its ambiguous nature, the policy determiners do not find themselves to be sure enough to let the following be a part of the cryptocurrency as it can have a direct and hard impact if things do not turn out as it is desired.

The other notion is that there is not much of a precedent to back on except the judgments of the banning of such currencies. Formulation of new laws can be hard for many countries, especially in those areas where there is not enough knowledge or surety of the asset.

Most policymakers have also found themselves dumbstruck when it comes to the crypto technologies as they are constantly gliding between treating the same as a currency or an asset. Though most of the citizens deem it to be an investment.

If the cryptocurrencies are deemed to be an asset- they can “tackle market and compliance risks, but not illicit activities.” quoted in a report by Policy 4.0, a think tank founded by blockchain expert Tanvi Mehta.

The reality

Even though many countries like South Korea, Egypt, and China have called for a blanket ban on the trading of digital assets, this blanket is being noticed for its various large holes. The laws have been written on the papers yet there is a sufficient observation on the continuance of the trade of the cryptocurrencies in such places.

Most nations are not able to determine whether to treat such blockchains as a currency or an asset.

“Classifying Crypto as a commodity can tackle market and compliance risks, but not illicit activities, financial stability, systemic and capital flight risks.” says blockchain expert Tanvi Mehta, founder of Think Tank in a report Policy 4.0.

On the other hand, the WEF and IMF have shown a sweet-salty reaction to cryptocurrency. While they have accepted its efficiency in overcoming the cross-border payments and financial regulations, the IMF has warned the nations against its volatile nature as bank deposits and lending. 

India on blockchain

It was established in 2018 that India has a mixed reaction to trading in private cryptocurrencies. Where the government has taken a stance of keeping the cryptocurrencies illegal, RBI issued several circulars and notifications taking different stances over the cryptocurrencies, until completely banning several entities from trading in cryptocurrencies under the ‘Statement on Developmental and Regulatory Policies’ notification. The Hon’ble Supreme Court then quashed the ban imposed by RBI on blockchain and cryptocurrency trading and allowed the trade to be legal (Internet and Mobile Assn. of India v. Reserve Bank of India (2020) 10 SCC 274)). This made the general public confused about the stand of the government on the issue. 

In February 2019, The Subhash Chandra Garg Committee, constituted by the Department of Economic Affairs, Ministry of Finance, submitted their report that led to the establishment of the ‘The Cryptocurrency and Regulation of Official Digital Currency Bill, 2021’. This bill was then introduced in the winter session of Lok Sabha in 2021. This bill seeks to ban all private cryptocurrencies and facilitate the introduction of a Central Bank Digital Currency (CBDC). It is one of the 26 bills introduced in the parliament.

Under paragraph 4.5.5 of their ‘Payments Vision 2025’, RBI has talked about “bringing further efficiencies in payment processing and settlements on the introduction of CBDCs – domestic and cross-border” as an issue to deal with by then. This Central Bank Digital Currency (CBDC) will be issued by the Reserve Bank of India. It will help in promoting financial inclusions and simplify the implementation of monetary and fiscal policies. 

As of 2022, India, though keeping the status of the cryptocurrency illegal, levied a 30 percent tax on the total profit derived from trading in any cryptocurrency, in its 2022 Budget.

India is still in consultation with international authorities like the International Monetary Fund and World Bank to arrive at a definite stance over the issue.  

Future of digital currency:

By judging the recent market volatility, many nations hold their positions firmly in the market. The market is a gamble that no emerging power wants to take risks with unless they can play on the safe side. 

Though there is hope for a worldwide acceptance of the currency as UAE, UE, USA, Australia, and other developed nations are taking a keen interest in regulating the blockchain and building a safe environment for their citizen’s virtual trading, that hope is covered with fog at the moment.

References

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

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

https://t.me/lawyerscommunity

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

Download Now

Property rights of a wife after divorce in India

By
Rachit Garg
-
0

This article has been written by Ananya Bose, a student at Hidayatullah National Law University, Raipur. It discusses in detail the rights of women over the property of husband and jointly owned property after divorce.

It has been published by Rachit Garg.

Introduction 

Divorce is the legal dissolution of a marriage, which can be done in court. Mentally, going through the process of divorce is tiresome and stressful for both partners. Legal settlements like alimony, maintenance, and property make the task more problematic. A couple can very well be financially stable throughout their marriage but after separation, it can be altogether a different story. They need to understand and be aware of the laws and procedures which exist to figure out who gets what part in the property in order to resolve one of the most concerning problems.

Property rights are the legal rights to obtain, possess, sell, and transfer property, as well as the rights to receive rent, keep one’s salary, enter into contracts, and file lawsuits. One of the most delicate issues during this time is women’s property rights following divorce. The right of women to their husband’s property for the purposes of a divorce property settlement relies on a variety of factors, including how the couple became separated and the reasons for the separation.

Property rights of a wife after divorce if the property is in her husband’s name

In case of mutual divorce, if the property is in the name of the husband, in the eyes of law, the wife has no right over the property. According to the Registration Act, 1908, the property belongs to the person under whose name the property has been registered. When it comes to the bank, it belongs to the person under whose name the loan has been granted and is accountable to pay the loan instalments. 

Even if the wife has not contributed financially to building the house, the husband has no right to ask her to leave the house until and unless they are lawfully divorced by a competent authority. She has the right to stay in the house until the time their marriage is annulled by a competent authority. After they are divorced, the wife has the right to ask for maintenance and livelihood costs for her and her children, however, she cannot ask for the property in a divorce settlement. 

For example: The husband buys an apartment for his wife and himself after they get married, and it is registered in his name. The husband and wife lived in an apartment together during their marriage. 

When a divorce is in issue, however, the wife will lose all rights to that apartment, while the husband will maintain complete ownership.

In a bit different scenario, where the wife and husband together have bought the apartment but it is registered under the name of the husband, the wife cannot claim it. However, she can show her monetary assistance in buying the property through bank statements and other proof.

Property rights of a wife after divorce in a joint property

There are a variety of reasons why a couple purchases joint property like tax savings, easy savings or where both contribute to purchasing the house. Where the property is registered as joint property, the woman has the right to claim a stake in the property in case of divorce. In line with the amount and percentage of the contribution, the court can grant her a share as a part of the divorce settlement. 

For this woman’s property rights, she must produce documentation of her contributions in order to acquire property in her husband’s name. To assert her rights, she can provide the account statements. If the couple buys a home together, it is considered joint ownership.  According to the Hindu Succession Act, 1956, as a co-owner, the woman has the right to remain in the property until the divorce is finalised and the divorce property settlement is finalised. This has also been established by a three-judge Bench of Supreme court in the case of Satish Ahuja v. Sneha Ahuja (2020). Here, the father-in-law of the women filed a case for an injunction for the women to immediately leave the house. It was contested by him that the property neither belonged to the son nor to his daughter-in-law. Here, it was held by the Court that the woman had the right to residence irrespective of her husband’s share in the property.

Either wife or the husband can start the process of settling their part of the property with the one who wishes to keep it. This can be done before or during the divorce process, and they are also liable to pay the portion based on current market conditions.

Section 27 of the Hindu Marriage Act, 1956

new legal draft

This Section gives the court the authority to decide on the matters of property which are presented jointly to the couple at the time of marriage. However, the properties which the spouses buy during the existence of their marriage would not be covered under this provision. 

If any one of the spouses wants to get an order under this Section, he or she must put up an application before the proceedings of divorce are over. However, the Court has no jurisdiction to pass an order related to any other property owned jointly or individually. 

In case, the parties enter into a settlement agreement with regards to such property, the court may keep a record of the same. However, a contrary view has also been seen in the case of Kampta Prasad v. Omwati (1971) where the Allahabad High Court established that it is not correct. 

In the case of Satya Pal v. Sushila (1983), it was found that the application of the wife under this Section for the purpose of recovery of jewellery and other stuff from the husband was not maintainable. 

In Basudev v. Chhaya (1991), it was found that the wife has the right to remain in the matrimonial home till the termination of the marriage.

Property rights of a wife if the husband does not divorce the wife but strands her

In the unlikely event of a husband leaving his wife and not taking divorce, the property rights of women state that her children as well as she herself has the right to declare share over their father’s property. In case the husband has kids from another woman, they have the right to property proportionally. In case, there exists property which is owned by the husband, the first wife and her children would have the initial right over the property that is owned by their biological father.

In this case, the father/husband becomes the property’s fourth shareholder, and the children from the second marriage, as well as the second wife, will claim their portion entirely from the father’s share. To obtain a full share, the second wife should marry the guy only after the first wife’s divorce property settlement. As a result, the second wife is treated as a legally married woman, and she and her children can only claim women’s property rights while they are in the relationship.

In the case of Khadal v. Hulash (1989), it was found that if one party denies the spousal relationship or duties, it entitles the other to maintenance. According to Section 24 of the Hindu Marriage Act (1955), claims can be made for the personal maintenance of the one claiming the maintenance and for the expenses incurred by them during the proceedings. The claim can only be made when it is proved that the one claiming the amount has no means to fulfil their personal expense as well as the expense of proceedings of the court. Once these facts are established, the court may pass an order to pay the claimant on a monthly or periodic basis and a lump sum amount for the proceedings. 

Stamp duty charges on acquired properties during divorce

There are taxes applied on the transfer of property between different parties. For example, when properties are transferred between siblings, the taxes apply in the same way as an open market sale. Though property transferred among spouses is exempted from the long-term capital gains tax, there remains another tax which is the stamp duty. Even though there are no such stamp duty concessions when it comes to transferring property between the divorced spouse, things are different.

They need to convert the property from their joint names to a single partner’s name because each has a proportionate share of the money or other assets. This type of transaction is exempt from stamp duty land tax if it occurs as a result of judicial separation or an agreement between the parties about divorce, nullity of the wedding, legal separation, or the dissolution of a civil partnership. A land transaction return will be required in order to seek relief.

Property rights of a wife after divorce in terms of movable property

According to the Transfer of Property Act (1882) property of every description except immovable property is known as movable property.

Stridhan

According to the Smritikars, these are those properties that the woman is gifted at the time of marriage. These might include jewellery, cash etc. the wife has the right over these properties after divorce too. However, in cases where the husband has contributed to buying these gifts, he has the right to claim his stake after divorce.

Any property that the women acquired as a part of partition would not be Stridhan but women’s estate as held in the case of Debi Mangal Prasad Singh v. Mahadeo Prasad Singh by the Allahabad High Court. However, after the Hindu Succession Act of 1956, it was declared by Section 14 of the Act that the joint property received by partition to be an absolute property or Stridhan. As the owner of absolute property, a woman has complete control over its alienation, which means she may give, sell, lease, trade, mortgage, or do whatever she wants with it.

In the case of Bhagwandeen Doobey v. Maya Baee (1869), it was held by the Privy Council that the properties which are given to the wife by the males would not come under the ambit of stridhan but would be known as the women’s estate. 

It has now been established in the case of Pratibha Rani v. Suraj Kumar and Another (1985) as to what consists of Stridhan by the Supreme Court – 

  1. Gifts exchanged before the nuptial fire. 
  2. Gifts presented during the wedding. 
  3. Gifts presented by her mother-in-law or father-in-law as a token of affection on the occasion of her marriage. 
  4. Gifts from the moms, dads, and brothers of the women.

In Smt. Rashmi Kumar v. Mahesh Kumar Bhada (1996), it was held by the Supreme Court of India that when a wife entrusts her husband or any other member of the family with her property and that person willfully misappropriated it or allows someone else to do so, he commits the offence of Criminal Breach of Trust.  

Investment and insurance 

The wife has no right over the investments made by his husband under his name. She can also not claim any insurance for which payment has been made under the name of the husband.

However, if the marriage is not dissolved legally and the couple has merely started leaving separately, the wife can claim the insurance amount in the unfortunate event of the husband’s death.

Property rights of a wife to husband’s possessions before divorce

Though now there is a clear understanding of women’s rights in case of divorce, we need to take a look at the rights she has while she is married.

She has the right to reside in the marital home and to be given maintenance by her husband.

If, on the other hand, the husband decides in his will to deny her the right to his property, she will not be able to place a claim on it. 

The wife’s property rights on her husband’s property, whether movable or immovable, are determined by a variety of criteria. Even when a couple is divorcing, the bulk of disagreements come during the property settlement process. At such a moment, one must be aware of one’s rights.

The Supreme Court held in the case of B.P. Achala Anand v. S. Appi Reddy and Another (2005)  that a wife’s right to stay in the married house is guaranteed by personal laws. A wife has the right to her husband’s assistance. Within his house, she has the right to live and be protected. She also has the right to separate residency if she is forced to live apart from her husband owing to his behaviour, his unwillingness to keep her in his own house, or other reasonable reasons. The wife’s right to a place to live is part of her maintenance entitlement. For the purposes of maintenance, the term “wife” includes a divorced wife.

Another important case in this respect is Bharat Heavy Plates v. Vessels Ltd. (1985) Here, the husband and wife along with three children used to live in the quarter provided by the company. However, after some days the couple started developing differences and therefore the husband left the marital home. He not only left the home but also wrote a letter to the company to terminate his lease agreement. The wife went to court for an injunction against their eviction from the house. The Court considered the facts that the quarter was intended for the employee’s use and that the husband was obligated to provide shelter for the wife and children. The quarter had been identified by both the husband and the corporation as the marital house, where the wife also resided. The sum of rent was ordered to be withdrawn from the husband’s paycheck.

Conclusion

For both the husband and the woman, divorce may be a very stressful scenario. Aside from the emotional strain, there are a number of legal issues that must be addressed during the divorce process, which adds to the stress.

There should be provisions under the law where the court should have the power to make arrangements and settlements with regards to properties which are jointly owned or individual not only in favour of either party or both the parties but also in favour of their children since they are the ones most hit by the proceedings.

Women’s property rights have developed and evolved over time for the betterment of the position of women in India. Especially, in countries like India where women are mostly not working or are extremely underpaid, financial support after divorce becomes important. Sometimes, financial restraints do not allow a woman to get divorced and she continues living in miserable conditions. Hence, it becomes more important to have laws that help women grow and become independent. But this doesn’t mean that it should be at the expense of men being deprived of their rights. There needs to be a balance.

Frequently Answered Questions (FAQs)

Is it possible for a woman to claim property after a divorce?

A woman can assert her rights and contribution to the property in court during a divorce. If the property is only in the name of the husband in such a case, a woman is unable to obtain a portion of the property unless she can show that she gave her share at the time of purchase.

In a joint property, what property rights do divorced women have?

If the property is registered as a joint property of a couple that is getting married, the wife will be entitled to claim it after the divorce process. The court will award him his portion based on his contribution to the property.

Is it possible for a divorced wife to claim her mother-in-law’s property? 

A wife cannot claim the ancestral property until and unless partition for the same has been done and the husband has a portion in the same.

References

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John Rawls’ Theory of Justice

By
Rachit Garg
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0
Jurisprudence

This article is written by J Jerusha Melanie, a student of SRM School of Law, Tamil Nadu. This article presents an exhaustive elucidation of John Rawls’ theory of justice and the principles of justice attempted to be brought forth by him. 

It has been published by Rachit Garg.

Introduction

Justice can seldom be defined. It has diverse interpretations. Justice for one may not be justice for someone else. However, various jurists have attempted to define justice in the closest way possible. One such jurist was John Rawls, who addressed the concept of justice in his famous book ‘A Theory of Justice.’ Let us try to understand Rawls’ idea of justice.  

Who was John Rawls

John Bordley Rawls was an American moral and political philosopher in the liberal tradition. Rawls is considered to be one of the most influential political philosophers of the 20th century. He is a recipient of the Schock Prize for Logic and Philosophy (1999) and the National Humanities Medal (1999). He is best known for his political-philosophical publication A Theory of Justice (1971). 

Rawls’ theory

John Rawls was a firm opposer of utilitarianism, which held the view that just or fair actions are the ones that bring the greatest amount of good for the greatest number. He condemned utilitarianism because he opined that it paves the way for governments to function in ways that bring happiness to a majority but ignore the wishes and rights of a minority. 

Rawls’ theory of justice is largely influenced by the Social Contract Theory as interpreted by Immanuel Kant, another political philosopher. A social contract is a hypothetical agreement between the government and the people governed that defines their rights and duties. Kant interpreted the social contract as one which is unanimously accepted and agreed upon by all the people, and not just a particular group. So, as for Kant, a society under a social contract is a society based on moral laws. 

Rawls was a political liberal, which is why he emphasised the need for a state that is neutral between the various perspectives of values. He calls his conception “justice as fairness.” He argues that if all the people in society come together to make collective principles of governing themselves, the outcome would be the rules that are influenced by only certain sections of people. This is because a variety of people exist in society; they may be rich, poor, educated, uneducated, etc. People of such variety are bound to have differences in their opinions and interests. These differences would eventually give birth to a situation wherein justice is compromised to satisfy the interests of the influential sections of people. Ultimately, justice is not achieved. 

Trying to figure out ways to achieve justice for all, Rawls proposed a hypothetical scenario where a group of people ignorant of their or others’ social, economic, physical, or mental factors come together to make laws for themselves. 

The idea behind this hypothecation is that under such a circumstance, everyone will be virtually equal. Rule-making will not be influenced by the self-centred desires of particular sections of society. Then, there will be no hierarchy in the bargaining power within the collective idea of justice. Under this state, there will also be equal sharing of burdens and benefits among all. 

So, the theory of justice proposed by Rawls advocates for a system of rule-making that ignores the social, economic, physical, or mental factors that differentiate the people in society.

Objective of the theory

The very purpose of Rawls introducing the theory of justice was to find a way to create a well-ordered society. According to him, a well-ordered society should predominantly have the following two elements:

  • It should be designed to advance the good of its members and effectively regulated by a public conception of justice;
  • It should be a society wherein all people accept and know that all other people accept the same principles of justice and that the basic social institutions satisfy those principles. 

Now, to create a well-ordered society, Rawls calls to envisage ourselves as a group of competent moral judges, able to decide between conflicting moral and political ideals from the perspective of reasonableness and impartiality. This enabling is facilitated by two hypothetical devices – the original position and veil of ignorance. 

A well-ordered society

As discussed earlier, Rawls’ theory of justice is inspired by the Social Contract Theory as interpreted by the political philosopher Immanuel Kant. Rawls extended Kant’s theory by taking the viewpoint of a hypothetical contract wherein the decision-makers come together to formulate rules for defining the basic structure of a well-ordered society, using set principles of justice. As per Rawls, this formulation is done by observing the following conditions of the contract:

  • Circumstances of justice
  • Original position 
  • Veil of ignorance
  • Maximin rule 

Circumstances of justice

As per Rawls, the circumstances of justice are the normal conditions under which human cooperation is both possible and necessary. These circumstances are pertinent for any society to make just laws. Rawls described two kinds of circumstances of justice – objective and subjective circumstances.

Objective circumstances

Objective circumstances refer to circumstances that give rise to a situation in which the members of a society co-exist in some identifiable territory and are of some comparable strengths and weaknesses so that no one has an edge over another. 

Rawls opines that the most significant objective circumstance of justice is the one in which the resources available to a society are moderately scarce. He stated that to achieve justice, natural and other resources are not so abundant that schemes of cooperation are superfluous, nor are conditions so plentiful that fruitful ventures must inevitably break down. This is because if resources are abundantly and easily available for anyone to use then nobody will need anybody’s help, making social cooperation unnecessary. Contrarily, if the resources are too scarce, there will not be enough scope for social cooperation. 

Subjective circumstances

Subjective circumstances of justice refer to circumstances that give rise to a situation in which few members of the society have conflicting interests in the resources available. When such interests contradict the mutually advantageous social cooperation, a need for justice arises.  

Original position

As discussed earlier, John Rawls calls upon the readers of his book A Theory of Justice to imagine a hypothetical scenario where a group of people ignorant of their or others’ social, economic, physical, or mental factors come together to make laws for themselves. This imaginary initial position of equality, perspective, or viewpoint of impartiality is what Rawls calls an original position (OP). 

The original position in Rawls’ theory of justice plays the same role as the state of nature does in the social contract theory proposed by political philosophers Thomas Hobbes, Jean-Jacques, Rousseau, and John Locke. 

In the original position, the parties have the choice to select the principles of justice that are to govern the basic structure of society. These principles, as discussed further, are imperative to ensure that the benefits and burdens of society are just or fair to all parties. Rawls proposed that the parties or decision-makers must choose the principles for  society as if they were behind a veil of ignorance. 

As per Rawls, the basic institutions of any society should be constructed in a way to ensure the fair and continuous distribution of social primary goods to all parties. The social primary goods, as described by Rawls, are those goods that individuals prefer to have more of rather than less. It includes rights, liberties, opportunities, income, and wealth. He believes that these primary goods are the most accurate representative factors of citizens’ fundamental interests. 

Veil of ignorance

To achieve justice for all, it is vital to set aside personal interests and be rational while making rules or decisions affecting society. To reach a rational mindset, Rawls argues that one must imagine himself as if he is behind a “veil of ignorance.” This veil of ignorance is a theoretical device or hypothetical separation between the decision-maker and the society he lives in. It prevents him from knowing any material facts about himself or the people for whom he is making the rule. These factors may be – 

  • Demographic facts – Examples of which may be age, sex, ethnicity, level of income, colour, employment, personal strengths and weaknesses, etc.
  • Societal facts – Examples of which may be the type of government, societal organisation, culture and traditions, etc. 
  • Facts about the decision-maker’s view of the good –  These are the decision-maker’s values and preferences of how one’s life should be. It also includes specific morals and political beliefs. 

 Rawls hoped that by ignoring these facts, one can avoid the biases that might otherwise come into a group decision. 

There are two main aspects of the veil of ignorance: self-ignorance and public ignorance. Firstly, it abstains the decision-maker from knowing anything about himself. It is essential for him to not know his own position in society, because knowing may tempt him to make decisions that favour his future self considering his private interests. For instance, a legislator having shares in a company of a particular sector may strive to make laws favouring the future rise of that sector, for himself to indirectly be profited by it. Secondly, it abstains the decision-maker from knowing anything about the entities for whom he is making the decision.  Such ignorance is crucial to avoid the personal bias of the decision-maker. 

The veil of ignorance makes the parties just be their usual rational selves, instead of being influenced by circumstantial factors. It prevents the privileged from pressurising the vulnerable or underprivileged, as everybody is equal in the original position. The veil ensures that policies are made in the best interest of the entire society, and not just a majority of it. 

Maximin rule

As per Rawls, to achieve a well-ordered society, the decision-makers under the original position will make choices under uncertainty. The uncertainty will lead them to rationally make rules by selecting the best from a range of options of worst possibilities. They will strive to make rules that ensure that the worst-off people in society do as well as possible.  

Two principles of justice

Rawls stated that in the original position, the members of a society would be led by reason and self-interest to agree upon the following two principles of justice; 

  1. The Principle of Equal Liberty 

Rawls’ first principle of justice states that each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others. 

As per the principle of equal liberty, all the people in the society must be given certain liberties that are basic for human existence. Such liberties can not be infringed at any cost, even if they may cause greater benefit to a larger mass of people. Some of the basic liberties as stated by Rawls were the freedom of speech, assembly, thought and conscience, liberties required to secure the rule of law, sanitation, wealth, and health.

However, Rawls does not consider the economic rights and liberties like freedom of contract or the right to own means of production, etc. as basic liberties, because economic progress cannot happen without the expense of the ones that do not happen to belong to the larger group. 

  1. The Principle of Difference and Fair Equality of Opportunity

Rawls’ second principle of justice states that social and economic inequalities are to be arranged so that they are both –

  1. To the greatest benefit of the least advantaged, and 
  2. Attached to offices and positions open to all under conditions of fair equality of opportunity.  

Clause(A) of Rawls’ second principle of justice is also called the difference principle. It provides that in case of an unequal distribution of wealth and income, the inequality must be such that those that are worst off are still better off than they would be under any other distribution. So, in one way, Rawls opines that no society can exist without economic disparity. However, such a disparity must be diminished as much as possible. 

Clause(B) of Rawls’ second principle of justice is also called the fair equality of opportunity principle. It provides that society must facilitate everyone with the most basic means to enable them to participate in social competition. Everyone should have an equal opportunity to compete for the public or private offices or positions that they wish for. This includes providing education, and healthcare. 

Criticism

Just like every other theory, Rawls’ theory of justice is also not free from criticism. 

G.A. Cohen, a Canadian political philosopher, criticised Rawls’ theory in his book Rescuing Justice and Equality (2008). He particularly condemned the impracticality of the theory. He opines that society can not work hard without differentiating incentives. 

Further, American philosopher Martha C. Nussbaum criticised the theory in her book Frontiers of Justice: Disabilities, Nationality, Species, Membership (2007), stating that it does not consider the disabilities and special requirements of people impaired in some way. Pointing at one of the loopholes of the theory’s advocacy of equal rights and duties, she argued that people with impairment need differential treatment to lead a normal life. 

Conclusion

John Rawls’ theory of justice has had a profound role in defining justice in one of the closest ways possible. Though it is near-impossible to come across a real-life circumstance supporting the hypothetical situation illustrated by him, Rawls has succeeded in elucidating the concept of justice as fairness to a great extent.  Most importantly, his theory sheds light on the rights and liberties of minorities, which utilitarianism failed to do. 

Frequently Asked Questions (FAQs)

What is John Rawls’ theory of justice?

  • John Rawls’ theory of justice is a theory in which he attempts to define justice. In it, he proposes a hypothetical scenario where a group of people ignorant of their or others’ social, economic, physical, or mental factors come together to make laws for themselves. 

What does the veil of ignorance in John Rawls’ theory of justice mean? 

  • The veil of ignorance is a hypothetical separation between the decision-maker and the society he lives in, preventing him from knowing any material facts about himself or the people for whom he is making the decision.

References

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

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

https://t.me/lawyerscommunity

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Adverse possession

By
Sneha Mahawar
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0

This article is written by Parth Verma, a student of the School of Law, Christ University, Bengaluru. This article seeks to elucidate upon the doctrine of adverse possession and its implications. 

This article has been published by Sneha Mahawar.

Introduction 

It is a well-known fact that a person who is the owner of a piece of land or any property has the right to possess, preserve and manage the same at their discretion. In other words, they are free to make any decision regarding the same. However, many times when this property is decided to be given to some other individual such as a tenant by the owner either on rent or on a lease they might lose their right or title over their land in certain exceptional circumstances. This might happen when the tenant possesses the land for a period of more than 12 years without the owner’s will or consent. Despite the property still being within the ownership of the landlord, the law would favour the possessor in this situation and not the owner. 

As a result, it becomes a very relevant question thereby to determine whether such a doctrine is even required and should some changes be brought into it. 

What is adverse possession 

Adverse possession essentially means when a tenant possesses the property of the owner when they are not legally entitled to do the same overtly i.e., without any attempt regarding the concealment from the owner. In such a situation, if they continue to hold the property unlawfully for more than 12 years and the owner, despite having the same, doesn’t take any action over these years, they would lose their right to claim the property by filing a suit in the court of law upon the expiration of this term. As a result, the person in the possession of the property will acquire a prescriptive title over the land through adverse possession. 

This concept is based on the legal maxim ‘vigilantibus non-dormientibus subvenit lex’ which means that the law favours only the active citizens and not those who are dormant or in other words, are not concerned about their rights. This concept, at times, might be unfair to the lawful owner of the property due to which it is subject to certain exceptions. Yet, in such a situation, the landlords failed to enforce the rights available to them. Hence, they shall not be allowed to reinforce the same or re-enter their land after a long passage of time. The person who possessed the land even if unlawfully has certain expectations due to the long passage of time which is 12 years in which no action was taken. It could prove to be unjust to the possessors if some action is taken after so long when they have become accustomed (habituated) to using that property. 

For the possession to be adverse, there are several essential elements required to be fulfilled, and such elements have been derived from the various case-laws which are discussed below.

Illustrations

a) A person X provides his land on rent to Y for a period of 6 months. However, even after the expiry of the time period, he continues to possess the property. Despite knowing about the possession, X doesn’t take any action and Y continues to possess the property for 12 years. In such a situation, Y can claim adverse possession over the property and after 12 years, X can’t claim the ownership of the land.

b) An individual B was employed by C to maintain his house while he is not there. B started staying on C’s property while C returns after 12 years. In this situation, C can’t claim ownership of the property and the possession would be transferred to B. This is an example of a possession that was adverse from the very beginning.

c) A person named X entered into a property owned by the Government but not in operation and started staying in it. As a result, the period of adverse possession began as soon as X entered into the Government property. If the Government files a suit against the person after 30 years of continuous possession, then X would be able to claim adverse possession of Government-owned property because the period of limitation which was 30 years to file a declaratory suit got over. 

The doctrine of adverse possession 

The doctrine of adverse possession states that when a person holds the property owned by any other individual for an uninterrupted period of more than 12 years, they would become the lawful owner of the land. This doctrine was introduced initially in India in 1907 and was based on the following principles:

  1. There should be no question regarding the ownership of the property i.e., the property that has been possessed by the tenant unlawfully must be lawfully owned by the landlord and there shall be no question upon it.
  2. The person who is possessing the property shall be considered the owner of the same if for a longer period of time there has been no intervention on part of the original owner. 
  3. A person who owned the property but later on left it without doing anything is considered to have waived off their right on that property or the land.

Later on, several developments took place in the doctrine itself according to the changing context of India’s changing conditions. 

Legal protection for adverse possession

In India, there are no specific laws explicitly mentioning or explaining this given doctrine. Yet under the Limitation Act, 1963 there are a few provisions that deal with this doctrine. 

a) Section 27 of the Limitation Act, 1963 reaffirms the limitation period to file a suit on the part of the property owner to be 12 years. After the other party has possessed the property for more than 12 years continuously, no action shall lie against them.

b) Article 64  and Article 65 of the Limitation Act, 1963 lay down the onus on the tenant to prove the dispossession of the property for the period of 12 years. At the same time, the burden to prove the period of adverse possession within 12 years falls on the landlord. 

c) For adverse possession of any kind of Government property the period to claim the ownership for the Government or any public organization has been fixed at 30 years. In other words, it is only after 30 years of uninterrupted possession on the part of the person that no action for claims could be filed in case of Government ownership.

Landmark judgments relating to adverse possession in context of Limitation Law

These are the provisions in the Limitation Act that explain the doctrine of adverse possession. In the case of the Karnataka Board of Wakf v. Government of India (2004), it was laid down by the Court that when any other person takes possession of the property owned by any other person and asserts right over it. Despite this, if the landlord having the lawful ownership doesn’t take any legal action for 12 years or more, the ownership immediately gets transferred to the possessor. The guideline laid down in this case further asserts the doctrine of adverse possession. 

In another landmark judgment in the case of Amrendra Pratap Singh v. Tej Bahadur Prajapati (2003), the definition of Adverse Possession was given very comprehensively. The Court stated that if a person, despite not having the right of the possession of the land, continues to prescribe the title over the land to himself for a period of 12 years without any legal action being initiated, the original owner loses the title over that land.

In another case of the Secretary of State v. Vira Rayan (1886), the Court held that the possession should be very open as well as hostile so that even the owner and the immediate neighbours can be aware of what is happening through reasonable diligence. For the factual possession of the property, there is also a need to prove the intention on the part of the possessor to exclude the others from using that property. 

In the case of P.T Munchikkanna Reddy v. Revamma (2007), the Court aimed to create a distinction between the intention to possess and the intention to dispossess. However, it was criticized by many as the intention to possess any property would naturally mean the intention to prevent others from possessing it, i.e., the intention to dispossess would also be present. Hence, both are correlated to each other.

arbitration

Essentials to prove adverse possession

Immovable property

The property which has been possessed unlawfully by the person must be immovable in nature such as a house or a piece of land, etc. However, the doctrine of adverse possession doesn’t pertain to any movable property.

Actual and exclusive possession 

The person claiming adverse possession must have its actual possession i.e., their physical presence is mandatory to claim adverse possession. If the person is not physically present, then he/she won’t be able to claim the defence of adverse possession. Entry or trespass into the property and further using that property is necessary for adverse possession. Further, this possession shall also be exclusive on the part of the tenant and to the exclusion of the landlord.

Illustration: A person X has built a hut and grown a few trees on the land of Y. He starts living in that hut without any interruption. Then it is going to be a trespass into the land but at the same time if no action is taken by the owner, then the person could claim adverse possession of the land after 12 years and could not be removed from that land because he had actual possession of the owner’s land. 

Uninterrupted possession

The possession by the person must be uninterrupted and continuous. In cases where they have possessed the property but not in a continuous manner or the possession has been interrupted by the owner of that property, they will not be able to claim adverse possession.

Possession for a definite period

The possession should be continuous and that too for a definite period which is 12 years in the case of the property held by a private individual and 30 years in the case where the adverse possession is relating to a government-owned property. 

In the case of Ravindra Kaur Grewal v. Manjeet Kaur (2019), it had been held by the Court that the person who has the possession of any immovable property for more than 12 years has the right to acquire its ownership. 

Hostility towards the owner

The property possessed by the person should be hostile towards the owner. They should possess and use the property just like the owner and the original owner of the property should be aware of the same. The possessor shall use the property in complete disagreement or the opposition of the owner. Further, even the period of adverse possession begins from the time when the owner gets the knowledge of the unlawful possession on the part of the tenant.

In the case of Brijesh Kumar and Anr v. Shardabai (Dead) by Legal Representatives and Ors (2019), the Court explicitly mentioned that to constitute the adverse possession there must be an assertion of a hostile possession in denial of the title of the true owner. The onus would be on the respondent to prove the nature of the possession.

Peaceful and notorious possession

The property shall be possessed by the person peacefully. They should not coerce or threaten the owner to possess that piece of property. In such a situation, it won’t fall within the purview of adverse possession. 

In the case of Shri Uttam Chand v. (D) Through LRS v Nathu Ram (D) Through LRS and Ors (2020), it was held by the Court that the defendant or the person claiming the adverse possession of the property would need to prove that the possession was continuous and peaceful i.e., nec vi, nec clam, nec precario.

These are some of the important essentials for claiming adverse possession. 

Effect of adverse possession claim in declaratory suits

A declaratory suit refers to any civil suit filed before the court for the purpose of determining the rights of any individual over any given property or any assets. Any individual who by the ownership of the land is entitled to use it could file a declaration suit against the person who has been unlawfully owning or possessing the property. When the person fails to file a suit for the recovery of the possessed land within the limitation period, he/she loses the right to recover it after the limitation period. Since that property can’t be left ownerless, the concept of adverse possession comes up. 

The effect of claiming adverse possession is that even when the original owner ideally has the title over their land, their claim towards the ownership and their right over the land gets extinguished through adverse possession. As a result, they also lose their right to file a suit before the court of law regarding the same. The pleading before the court for the title (by owner) and adverse possession (by possessor) are not consistent with each other and unless the title is surrendered, the period of adverse possession won’t be in effect. Hence, when any person has possessed the private property for 12 years or the Government property for 30 years in an uninterrupted manner, the original owner of the property loses his/her right to file a declaratory suit for recovering the possession.

How to prove adverse possession

 The burden of proving the adverse possession lies upon the person who is claiming such a defence under the Limitation Act of 1963. To prove the adverse Possession, they would need to prove the following things before the court of law:

  1. The date from which the property was under their adverse possession, from which the 12 years are going to be calculated.
  2. They are also required to prove the date from which the adverse possession of the property came to the knowledge of the owner. They also need to specify the date from which the possession of property came to the knowledge of immediate neighbours.
  3. They are required to prove that the possession of the property was peaceful. It should not be possessed by coercing the owner and should be in opposition to what the owner expects.
  4. The person making a claim also needs to prove beyond a reasonable doubt before the court that the property owner, despite having the knowledge of the possession, didn’t take any action against the possessor. 
  5. They also need to ensure at the same time that the exceptions to this rule aren’t applicable in their given case at hand.
  6. They are further also required to prove that the possession of the property was continuous before the Court without any interruptions by the owner of the property or any other person. 

These are some of the aspects that the person in possession of the property would be required to prove before the Court to claim the defence of adverse possession. 

When can adverse possession not be claimed

There are certain exceptions in the doctrine of adverse possession under which the possessor of the property can’t claim it.

No ulterior motive

In order to claim adverse possession, the person is required to show their intention to possess the property (animus possidendi) in an exclusive manner. Further, when the landlord and the tenant enjoy a fiduciary relationship among them that is built on some trust or reliance on each other, such possession won’t constitute adverse possession.

Permissive possession

When the tenant or the person concerned was allowed/permitted to possess the property by the landlord, then in that situation it won’t fall within the purview of adverse possession. Only when the Landlord decides to terminate the permissive possession of the tenant but the tenant doesn’t vacate the property, legal action could be taken against them. They might also need to pay compensation for their wrongful or unlawful possession of the land. It is only when they wrongfully possess this property for more than 12 years that they could claim adverse possession.

Lack of valid claimant

In a situation where the person is possessing a property over which nobody is claiming their ownership, there is no requirement of proving adverse possession. For example, if a given piece of land doesn’t have any lawful owner who could recover it from the person who’s adversely possessing it, the right over that land can’t be claimed through adverse possession.

Difference between adverse possession and homesteading 

Adverse possession as stated in the previous sections refers to the legal doctrine which means that if an individual possesses somebody else’s property for a period of 12 years or more will acquire ownership if no action is taken by the owner despite having complete knowledge about it. Hence in this situation, the land is under the ownership of an individual i.e., there is a legal owner of the land.

On the other hand, homesteading is also a bit similar to adverse possession. In the case of homesteading, the ownership of the property is either with the Government or doesn’t have any legal owner at all. In such a situation, the first person who starts using the property or possessing the same becomes the lawful owner of that land. In other words, when a given piece of land is not owned by anyone, the first person claiming it becomes the lawful owner. Secondly, the Government can also allocate such land to any person.

The primary difference between both is that adverse possession could take place when any person already owns any land subjected to unlawful possession by the tenant or any trespasser, whereas in the case of homesteading the land is possessed by the person when it is not under the ownership of any person.

In the case of adverse possession, the ownership is transferred to the unlawful possessor owing to the neglect of the original owner of the property. In the situation of homesteading, the ownership is given to the person owing who uses the land for the first time. In the colloquial (informal) terms, adverse possession is the formalization of the squatter’s rights existing since ancient times. On the other hand, homesteading focuses on the formalization of the traditional Homestead Principle which states that any person can obtain the ownership of any resource found in nature such as land or forest by using it or possessing it to do something useful. Yet both of these aims to focus on acquiring ownership through possession of the land. 

Hence, both the legal concepts are very important to determine the ownership of the land for any individual who is possessing it either by lawful or unlawful means.

Case laws related to the doctrine of adverse possession 

Perry v. Clissold (1907)

This particular case was one of the first cases concerning adverse possession in which the final decision had been passed by the Privy Council. The Privy Council held in this given case that if any person is possessing the property in a notorious and peaceful manner that is under the ownership of any other person and they fail to come forward and assert their rightful ownership against that property, their right will get extinguished and the title would be transferred to the possessor. Though this decision was not binding on the courts after independence, the judicial opinion was reasserted by the Court in the case of Nair Service Society Ltd v KC Alexander (1966). 

Kshitish Chandra Bose v. Commissioner of Ranchi (1981)

In this case, the three-judge bench of the Supreme Court reversed the decision of the High Court. The Court explicitly stated in this case that the property must be possessed by the person in an open manner without any intention of concealing the same from the owner. In such a situation even when the real owner doesn’t have the knowledge about the possession, it will not become less adverse. Even when the person possessing the property doesn’t know the real owner, it won’t make the possession less adverse.

Thakur Kishan Singh (Dead) v. Arvind Kumar (1994)

The Court, in this case, laid down a very important exception to the doctrine of adverse possession. It was stated that if the person is possessing the property with the due permission of the owner, it won’t amount to adverse possession. In other words, the permissive possession can’t lead to adverse possession which means that when an individual has been lawfully permitted to use a given piece of property then the possession of that property won’t be considered adverse possession.

Hemaji Waghaji v. Bhikhabhai Khengarbhai (2008)

In this given case, the Supreme Court highly criticized adverse possession as being highly irrational and unfair to the owner of the property. The possessor of the property who carried out an illegal task and was completely dishonest would reap the benefit of adverse possession leaving the owner helpless. Hence, the Court asked to review the provisions regarding the adverse possession and to bring about some changes to achieve a balance between its merits and demerits.

State of Haryana v. Mukesh Kumar and Ors (2011)

In this case, the Court laid down that for adverse possession to take place, the person must possess the property in an uninterrupted and uncontested manner for a definite period of time which is going to be adverse to the owner of the property. The demand of the Court even in this case was the same, that is to bring about certain changes in the law of adverse possession so that it’s favourable to both the parties.

Nanjegowda @ Gowda (D) By Legal Representatives and Anr v. Ramegowda (2017)

In this case, an appeal had been made before the Supreme Court against the decision of the High Court. The case was regarding the adverse possession of the agricultural land that was a part of the ancestral property of the family. The Supreme Court in this case clearly stated there could be no adverse possession of any family or ancestral property through a hostility among the members over the land. Hence, this doctrine doesn’t apply to a family-owned property. The Court further held that entering into the land of the Plaintiff by the Defendants amounted to criminal trespass and the documents which they produced didn’t relate to the suit land. Yet, even in the situation of criminal trespass, one could claim adverse possession despite trespass being a criminal offence.

Mallikarjunaiah v. Nanjaiah (2019)

In this given case, the court declared that just the continuous possession of the property like the true owner won’t constitute adverse possession. The possession has to be open, hostile and exclusive of any other individual. This possession and the claim for the ownership of the property should also come to the knowledge of the original owner of the property to constitute adverse possession. 

Can the state claim adverse possession over citizens’ property

It has been observed above that an individual can claim adverse possession over others’ land. This happens when they openly and notoriously possess that land without any interruption for a minimum period of 12 years. This period of limitation in the case of Government/State property is 30 years.

The state, however, cannot trespass into the private land of any citizen of the country and claim adverse possession of it. This would essentially be an encroachment into the land of citizens which won’t be justified. In other words, if any public official or Governmental institution has been possessing any private individual’s property unlawfully for any given period of time, they still can’t claim adverse possession. The reason behind it is that every democratic country has to follow the principle of the ‘Rule of Law’.

Further, the Right to Property though now no longer a Fundamental Right is still a constitutional right that can’t be violated unless through a procedure established by law. It would be a gross injustice to the citizens as their lands would be taken away from them in an unlawful manner by the state. The primary duty of the state is to ensure the welfare of all. For ensuring the people’s welfare, this doctrine doesn’t apply to the state. Hence, except for the procedure established by law, the state can’t deprive the citizens of their land by claiming adverse possession.

Can a tenant claim adverse possession

A tenant under certain circumstances can claim adverse possession before any given court of law. When the rent or the lease agreement that had been entered into between the tenant and the landlord has expired or has been revoked by the landlord, the tenant is expected to vacate the property within a stipulated time period as stated in the agreement. However, if they still keep on using that property despite the knowledge of the landlord, they can claim adverse possession after 12 years. In such a situation, after 12 years what would otherwise have constituted trespass or unlawful possession of the property would become the owned property of the tenant by claiming adverse possession. However, if after the termination of the agreement, the tenant while possessing the property keeps paying the rent to the landlord for it, he can’t claim adverse possession in such a situation. Further, if the landlord fails to take any legal action within the limitation period of 12 years, he would lose his right over the ownership of the land. 

Hence a tenant can certainly claim adverse possession over the property if the lease agreement has become invalid and he/she still possesses the property for a period of more than 12 years. 

Conclusion 

The doctrine of adverse possession over the years has undergone several changes. Yet, it still could put the possessor of the land at an unfair advantage over the owner. They would lose their right even when it is visible that the person was unlawfully possessing the land. This doctrine as even stated by the court is highly unfair and illogical in the current times as the person who should be held liable as a trespasser is given the right to hold that property. There might be several reasons for which a person might not be able to take any action that also won’t fall within the purview of exceptions that are to be considered. Further, the rule laid down by the Court that even when the possession is visible to the general public but the owner doesn’t have the knowledge could amount to adverse possession is also disproportionate and disregards the owner’s rights.

On the other hand, there are certain reasons for which adverse possession may prove to be important. The rationale behind this concept is to facilitate the benefit of society by using the land that has been left idle by the owner. Further, the law favours those who are active and not dormant. Since, in the situation of adverse possession, the owners fail to enforce their rights and are ignorant of the fact regarding the unlawful possession of their land for a period as long as 12 years, they shouldn’t be provided with any remedy under the laws in force. Another reason is that even when a person unlawfully possesses the property for a long time without any warning being given by the owner during the entire time, they develop a certain trust that they won’t be stopped from using the property after a certain period of time. They have certain expectations which shouldn’t be violated.

From both its merits and demerits, it can be concluded that there is a need for changing the existing laws in a manner that is favourable to both the owner and the possessor. There are certain ambiguities as stated above regarding the owner having complete knowledge which is required to be considered. Therefore, only when all these gaps are addressed to facilitate the lawful possession of the land and at the same time to protect the rights of the possessor after the exhaustion of the limitation period, could it be held that the legal provisions governing adverse possession are effective.

Frequently Asked Questions (FAQs) 

1. What is adverse possession?

Adverse possession is a legal concept that states that if an individual possesses somebody else’s property for a given period will acquire the ownership if no action is taken by the owner despite having complete knowledge about it.

2. What is the Act governing adverse possession in India?

The Limitation Act, 1963 consists of the various provisions dealing with the adverse possession of immovable property in India.

3. What is the limitation period for adverse possession? 

The limitation period to claim adverse possession by any person has to be 12 years of possession for private property and 30 years for Government-owned property.

4. What are the essentials of adverse possession?

A. Immovable property,

B. Actual possession,

C. Hostile possession,

D. Peaceful and notorious possession,

E. Continuous/ uninterrupted possession,

F. Possession for a definite period.

5. How can a person file a suit for adverse possession?

The person claiming the adverse possession must present these details: 

(a) on what date he came into possession of the property, 

(b) the nature of possession, 

(c) was the other party aware of the factum of possession, 

(d) tenure of possession and 

(e) dispossession of the true owner.

References 

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What is the right to freedom

By
Rachit Garg
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0

This article is written by Pragya Agrahari of Amity Law School, Lucknow. This article provides a detailed analysis of the right of freedom provided by our Constitution.

It has been published by Rachit Garg.

Introduction

The word ‘freedom’ essentially means ‘not to be restricted in any sense’. This concept of ‘freedom’ is very popular among the western political thinkers. One of which is Isaiah Berlin, a British philosopher who gave the idea of negative and positive freedom in his essay, “Two Concepts of Liberty”. He defined negative freedom as freedom from any external constraints and the freedom to do whatever one likes to do without any limitations. Whereas positive freedom refers to self-determination and self-rule over one’s life and life’s decisions. The difference between the two is that negative freedom connotes freedom to do or not to do anything whereas positive freedom refers to the idea of self which is not restricted or controlled by others.

Hence, freedom includes various rights of an individual like the right to movement, right to speech and self-expression, right to religion, right to travel, right of occupation, right of self-identity, right to property, etc. In order to provide these rights to an individual, the state should less interfere in the affairs of an individual. It should act as a minimal state. Every democratic state provides necessary liberty to its individual in the form of these freedoms. Even in a democratic state like India, these freedoms have been provided in the Constitution in the form of fundamental rights.      

What is the right to freedom 

Right to freedom, according to the Indian Constitution, refers to the fundamental rights given under Article 19 to Article 22. The aim of these rights is to promote the ideals of liberty held by the Preamble in newly independent India, in order to remove inequalities amongst the individuals and to entitle all the individuals to a dignified life.     

Article 19 of the Indian Constitution

Article 19(1) of the Indian Constitution provides six freedoms to the citizens, namely:

  • Freedom of speech and expression (Article 19(1)(a)),
  • Freedom of assembly (Article 19(1)(b)),
  • Freedom of association (Article 19(1)(c)), 
  • Freedom of movement (Article 19(1)(d)),
  • Freedom to residence and settlement (Article 19(1)(e)),  
  • Freedom of profession, occupation, trade or business (Article 19(1)(g)). 

Earlier, there were seven freedoms but one of them, namely, ‘right to acquire, hold and dispose of property’ was omitted by the 44th Amendment Act, 1978.  

These six freedoms are only available to citizens, that is, only natural persons having the status of ‘citizenship’ under a law. It means the determination of citizenship under Part II of the Constitution is a condition precedent for claiming rights under Article 19. Aliens, foreigners, juristic persons, registered companies, or societies are not entitled to such rights.  

Freedom of speech and expression: Clause(1)(a)  

This freedom provides individuals liberty to express one’s views, opinions, and beliefs whether oral, in writing, in print form, through pictures or any other mode. It is the bulwark of a healthy and democratic society. But it does not mean that one can express whatever one likes to. There are ‘reasonable restrictions’ on these rights. 

Although it is not specifically mentioned, this freedom also includes various other freedoms:

  • Freedom of press: It includes freedom to print and publish whatever one likes, subject to reasonable restrictions, and without anyone’s previous sanction. Therefore, pre-censorship on publication of any news, article, book, etc is a violation of Article 19(1)(a). In Romesh Thappar v. State of Madras (1950), Supreme Court observed that “Freedom of Speech and of Press lay at the foundation of all democratic organisations, for without free political discussion, no public education, so essential for the proper functioning of the process of Government, is possible.”   
  • Right to information: Right to know, receive and impart information was recognised as an aspect of freedom of speech and expression, which was later finally incorporated in the Right to Information Act, 2005. 
  • Right to remain silent: This also includes the right to not speak or remain silent. In Bijoe Emmanuel v. State of Kerala (1986), SC held that students who did not sing the National Anthem did not commit any offence as there is no law under which their right of speech and expression can be curtailed.  

Freedom of assembly: Clause(1)(b)

new legal draft

This freedom includes the right to assemble in a group to take out processions and hold meetings. The purpose of these meetings can be educational or for the purposes of political, social, and religious awareness. The only prerequisite was that the object of the assembly should not be illegal, otherwise, it would fall into the category of the offence of ‘unlawful assembly’ given under Section 141 of IPC, wherein ‘assembly of five or more persons will be unlawful if its object was illegal’. 

This freedom of assembly is subject to two limitations, namely:  

  • The assembly must be unarmed, and
  • The assembly must be peaceful.

States may also impose some reasonable restrictions in the interests of public order, sovereignty and integrity of India. For example-

  • Under Section 129 of Code of Criminal Procedure, Magistrate and police officers are authorised to dispense unlawful assembly which is susceptible to disturbing the public peace.
  • Under Section 144 of Code of Criminal Procedure, the Magistrate is empowered to issue orders in case of an emergency which includes imposing restrictions on public meetings and gatherings. 
  • Under the Prevention of Seditious Meetings Act, 1911, the State Government is empowered to declare any area as a ‘proclaimed area’, where no public meetings can be organised without 3-days prior notice to the Magistrate.

Freedom of association: Clause(1)(c)

This freedom includes the right of an individual to come together and form an association or union with some common aims or objectives and with a legitimate purpose in mind. But mere membership of the banned organisation does not make its members ‘criminal’ on its own unless their members have been involved in the said violence or any other disturbing behaviour. The association can comprise political parties, clubs, trade unions, societies, companies, etc. This right also includes the right not to join an association and the right to its continuance. But it does not carry the concomitant right that such association or union should be able to achieve its desired objectives.

In the case of S. Ramakrishnan v. District Board (1951), the Supreme Court held the government order which requires municipal teachers not to join an association or union without its previous approval, as invalid as it is violating fundamental right provided in Article 19(1)(c).

Clause(4) empowers the State to impose reasonable restrictions on the exercise of freedom of association/union in the interest of sovereignty and integrity of India, public order and morality.   

Freedom of movement: Clause(1)(d)

This freedom includes the right to move without any restriction. But the State is empowered to impose reasonable restrictions on this right under Clause (5) in the interests of the general public or for the protection of the interest of Scheduled Tribes. The state is empowered to impose reasonable restrictions on the movement of outsiders upon entry into the area inhabited by tribes in order to protect the culture, tradition, language, etc. of aboriginal tribes, living in different parts of the country like Assam and the areas belonging to the North-East.

In the case of Ebrahim Vazir v. State of Bombay (1952), where the citizen of India was ordered to be deported to Pakistan after his arrest as he returned to the country without a permit, it was held that the particular section which legalises it, was unconstitutional. Laws such as requiring the wearing of helmets while driving cannot be said to violate freedom of movement. Similarly, mere watching or surveying the offenders for keeping an eye on their movement and their activities is not infringing their right to movement.

Freedom of residence and settlement: Clause(1)(e) 

This freedom includes the right of citizens to travel to any part of the country and settle down there. The purpose of this right is to ensure citizens that they can move freely throughout the country without any internal barriers and settle down in any part of the country.  

But this is subject to reasonable restrictions, which the State can impose in the interests of the public and the protection of the interests of Scheduled Tribes. Hence, the restriction on the right of residence of habitual offenders was upheld as it was a reasonable restriction in regard to the interest of the general public. 

In the case of Dhan Bahadur Ghorti v. State (1952), a custom of a tribal area that does not allow Nepali or any foreigner to stay in that tribal area without the permission of the Deputy Commissioner was upheld to protect the interests of tribal people. 

Freedom of profession, occupation, trade or business: Clause(1)(g)

This freedom guarantees all citizens the right to profess any occupation, trade or business. In Sodan Singh v. New Delhi Municipal Committee (1989), Justice Kuldip Singh has defined these four expressions as:

  • ‘Profession’ means an occupation carried on by a person by virtue of his personal and specialised qualifications, training or skill.
  • ‘Occupation’ means any regular work, profession, job, employment, or business in which an individual is engaged.
  • ‘Trade’ means any bargain or sale, any occupation or business carried on for subsistence or profit, it is an act of buying and selling goods and services.  
  • ‘Business’ includes anything which occupies the time, attention and labour of a man for the purpose of profit.

Clause (6) imposes reasonable restrictions on this right in the interest of the general public and enables the State to carry on any trade or business to the exclusion of private citizens wholly or partially. It means the State can monopolise any business or trade. The State also has the right to close businesses or trade on the public streets. This clause empowers the State to prescribe professional and technical qualifications necessary for carrying out any profession, trade, business or occupation. 

In the case of Vishakha v. State of Rajasthan (1997), it was held that sexual harassment at the workplace is a violation of the victim’s fundamental right under Article 19(1)(g). On the question of whether ‘education’ can be trade, business or profession, in the case of Unni Krishnan v. State of Andhra Pradesh (1993), it was held that education can never be a trade, occupation or business. Justice Gajendragadkar held that, “Education in Its true aspect is more  a mission and a vocation rather than a profession,  trade  or business.” But later in the case of TMA Pai Foundation v. State of Karnataka (2002), it was observed that education can never be regarded as a trade or business where profit is the motive. But education will fall within the meaning of the expression ‘occupation’, which is defined as “an activity in which one engages” or “a craft, trade, profession or other means of earning a living“.  

Restrictions on the freedom of speech and expression

Clause(2) of Article 19 provides reasonable restrictions applicable to this freedom. These restrictions comprise the following:

 Sovereignty and integrity of India

It refers to the territorial integrity of the State. This ground was added by the 16th Amendment Act, 1963. It was added to restrict the kind of speech which can be detrimental to the integrity of the nation and would promote succession from the country undermining its sovereignty. 

 Security of the State

There is always a continuous threat to the security of any nation. There were attempts to overthrow the present government or incite violence in the country, hence, this ground restricts the freedom of speech and expression which would result in inciting danger to the State. In the case of Romesh Thappar v. State of Madras (1950), the Court clarified that it does not refer to only ordinary breaches of public order which do not involve danger to the State. 

 Friendly relations with a foreign state

This ground was added by the 1st Amendment Act, 1951 to restrict the freedom of speech and expression that would jeopardise the maintenance of friendly and cordial relations with foreign countries. As these foreign relations are very important for the economic and social development of any country, the government checks any kind of malicious propaganda against foreign countries and imposes reasonable restrictions. Moreover, it is also due to the principle of international law which makes the State responsible for any acts committed by any person within their country. 

 Public Order

This ground was also added by the 1st Amendment Act, 1951. This ensures peace, safety and tranquillity in the country cannot be disturbed by toxic speeches and ways of expression. By using this restriction, the State can regulate public meetings, prohibit loud noises, punish utterances that would incite riot and violence, breach the peace, and that are threatening, abusive, insulting and endangering public safety. Under this Provision, the State also made laws to punish utterances that hurt religious sentiments. The only requirement is that there should be a proper nexus between the restriction imposed and the achievement, it should not be far-fetched. In Babulal Parate v. State of Maharashtra (1961), Section 144 of CrPC was upheld as valid as there are no arbitrary powers given to Magistrate. The magistrate has to state facts before the order and the order can also be challenged.

 Decency and morality

This ground restricts any speech and expression including any painting, sculpture, publication, etc that was obscene and vulgar. Section 292 to 296 of the IPC deals with the offences in relation to obscenity. In Ranjit D. Udeshi v. State of Maharashtra (1964), the Court agreed with ‘Hicklin’s test’ to check the obscenity of the book. This test checks whether there is a tendency to corrupt the people whose minds are open to such immoral influences and into whose hands this publication would fall. Court uses a different approach to test morality and vulgarness. It sometimes looks at the literature as a whole and not at the specific words which are vulgar and offensive to assess the impact on the minds of readers. Nowadays, Courts follow the ‘Contemporary Community Standard Test’ to test immorality. It states that standards of morality differ from place and time. Once, using contraceptives and birth control measures was seen as immoral but now it was encouraged and subsidised by the State.

 Contempt of court

It was defined in Section 2 of the Contempt of Courts Act, 1971. It is of two types- civil contempt and criminal contempt. Civil contempt refers to wilful disobedience of any order, judgement, etc. of the Court, whereas, criminal contempt refers to an act or publication of any matter which lowers the image of Courts, prejudices or interferes with proceedings or obstructs the administration of justice. In the Namboodiripad case (1970), it was observed by the Court that, “Freedom of speech goes far but not far enough to condone a case of real contempt of court.”

 Defamation

Everyone is entitled to dignity and reputation. Hence, the State would restrict any speech or expression that would expose any person to ridicule and hatred. Nobody has the right to devoid anybody of his/her right of reputation. However, there are certain exceptions to it.

 Incitement to an offence

This ground was added by the 1st Amendment Act, 1951 to curtail any speech that would encourage a breach of peace and incite any offence to be committed. In State of Bihar v. Shailabala Devi (1952), the Supreme Court held incitement to murder or any other violent crimes would undermine the security of the State, hence this restriction is valid. 

Article 20 of the Indian Constitution

Article 20 provides protection to persons in respect of conviction in certain offences. It guarantees mainly three types of protection, namely:

  • Ex-post facto laws,
  • Double jeopardy, and
  • Self-incrimination.

Prohibition of ex-post-facto laws

Ex-post facto laws are those laws which provide punishment for the act which was lawful when it was done and later declared as an offence. Clause (1) of Article 20 prohibits retrospective criminal legislation, that is, no law can be made prohibiting the act with retrospective effect. Hence, no person shall be subjected to a greater penalty or punishment than that which could be inflicted under the law in force at the time of commission. It only prohibits retrospective criminal legislation and not the imposition of civil liability. Hence, taxes can be imposed retrospectively. This principle also does not apply to disciplinary proceedings. 

In Rattan Lal v. State of Punjab (1964), it was held that “considering the scope of ex-post-facto laws we must adopt the rule of beneficial construction as enunciated by the modern trend of judicial opinion”. This rule requires that even ex-post-facto laws be applied to reduce the punishment. The law providing a minimum sentence or fine on conviction is not the same as a law imposing a greater penalty.

Immunity from double jeopardy

The legal maxim ‘Nemo debet bis vexari’ states that no man shall be brought into danger for one and the same offence more than once. Even in the American Constitution, this principle was given in the 5th Amendment which declares “no person shall be subject for the same offence to be put twice in jeopardy of life or limb.” Other than the Indian Constitution, this principle was also imbibed in Section 300 of Code of Criminal Procedure 1973 and Section 26 of General Clauses Act, 1897.

But the Indian principle of double jeopardy is quite different from the principle followed in British and America. In America and Britain, the bar applies to second prosecution irrespective of the result of the first prosecution, whether the accused was acquitted or convicted. But in India, to apply the provision laid down in Article 20, it must be shown that the accused has been prosecuted before Court and punished by it for the same offence for which he/she is prosecuted again. Hence, if there is no punishment awarded, there will be no application of Article 20.

In Leo Roy v. Superintendent District Jail (1957), where a person was punished under Sea Customs Act, 1878 and secondly prosecuted under the Indian Penal Code, 1860 for the offence of criminal conspiracy, the decision was held valid as punishment is not for the same offences. 

Protection against self-incrimination

This clause declares that no person can be compelled to be a witness against himself/herself. 

Three components of this provision are-

  • The person must be accused of any offence.
  • Protection against self-incrimination.
  • There must be a compulsion to give evidence against himself/herself.

In India, this protection is only available for the accused, unlike in the USA, where it is also available for witnesses. ‘Accused’ is the person who is formally brought into the police diary and also includes suspects of the offence.

‘To be a witness’ means making oral or written statements disclosing some facts relevant to the case. Such statements are not confined to confessions but also cover incriminatory statements which have the potential to reflect the guilt of the accused. In Nandini Sathpathy v. PL Dani (1978), the Court held that “answers which have a reasonable tendency strongly to point out the guilt of the accused are incriminatory. Relevant replies which furnish a  real and clear link in the chain of evidence indeed to bind down the accused with the crime become incriminatory and offend Art. 20(3) if elicited by pressure from the mouth of the accused.”

In the case of Kalawati v. State of H.P.(1953), it was held that “sub-section (3) of Article 20 does not apply at all to a case where the confession is made without any inducement, threat or promise.” Hence, compulsion is a necessary element for the application of this provision.

Article 21 of the Indian Constitution

Article 21 states that:

“No person shall be deprived of his life or personal liberty except according to the procedure established by law”.

Article 21 is the most important fundamental human right provided in the Constitution which makes ark for all other laws in the country. Defining its scope, Justice Subba Rao once quoted:

“By the term “life”, something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.” 

Earlier, Article 21 was laid dormant until the arrival of the case of Maneka Gandhi v. Union of India (1978), which broadened its scope and brought great transformation in the judicial attitude towards the protection of life and liberty of the individuals. It laid a number of propositions to make Article 21 more meaningful-

  • It showed that Article 21 as interpreted in the AK Gopalan case (1950) would not be able to provide protection against harsh laws. Hence, the case was overruled.
  • It reiterated that Articles 14, 19 and 21 are not mutually exclusive as held in the Gopalan case. Hence, any law made by the legislature should meet all the requirements of Articles 14, 19 and 21.
  • The expression ‘personal liberty’ in Article 21 should not be read in a restricted and narrow sense so as to exclude liberties provided in Article 19.
  • It reinterpreted the term ‘procedure established by law’, which now requires the law to qualify the requisites of being fair and just.

Article 21 after the case of Maneka Gandhi has assumed a ‘highly activist role’ which helps in expanding its horizons to cover various fundamental rights which are not provided explicitly in the Constitution.

Extended view of Article 21

The new interpretation of Article 21 has provided Indian jurisprudence with fascinating development of rights. It has now become the ‘heart of the fundamental rights’. Moreover, it also has provided recognition to various DPSPs which were essential to be included as fundamental rights.

Various implied fundamental rights under Article 21:

  1. Right to livelihood,
  2. Right against sexual harrassment,
  3. Right to privacy,
  4. Right to education,
  5. Right to health,
  6. Right to clean environment,
  7. Right to speedy trial,
  8. Right to legal aid,
  9. Right to go abroad,
  10. Right against custodial violence, etc.

Article 22 of the Indian Constitution

Article 22 provides various safeguards for the arrested person to ensure their right against arbitrary arrest and detention by the police. It also authorises the legislature to make laws on preventive detention.

Rights of an arrested person

Under clauses (1) and (2) of the Article 22, four rights have been granted to an arrested person, which is as follows-

  1. Right to be informed of grounds of arrest: As soon after the arrest, the accused should be informed about the grounds of his arrest. This right is provided so that there will be no confusion and he/she can prepare to defend him/her.
  2. Right to consult and be represented by a lawyer: The accused should not be denied the right to consult and be defended by the legal representative of his own choice. If for any reason, a lawyer does not appear to represent the accused, he must be provided with amicus curiae.
  3. Right to be produced before Magistrate within 24 Hours: Every person who is arrested or detained must be produced before the nearest Magistrate within 24 hours excluding the time of journey. This safeguard is provided to ensure that there would be no arbitrary or illegal arrests taking place.
  4. Right not to be detained beyond the said period: No person shall be detained in custody beyond the said period without the authority of the Magistrate. 

However, there are some exceptions to these safeguards. These safeguards are provided to-

  1. An enemy alien,
  2. A person arrested or detained under preventive detention law.

What is preventive detention?

Clause (4) to (7) of Article 22 deals with the provisions related to ‘preventive detention’. It is the subject of the Union and Concurrent list. It means if a conflict arises, central law will prevail. 

Preventive detention literally means detention to prevent a person from doing something. In law, it is used as a precautionary measure in which a person is detained on suspicion of commission of some prejudicial act. It is not the same as criminal detention where an accused is detained only after certain legal evidence. It is only based upon reasonable suspicion or probability of commission of certain offences.

Its origin can be traced to British India when the Bengal Regulation Act of 1818 was passed. The provisions of preventive detention are not self-executory but it requires legislation to be implemented. Preventive Detention Act, 1950 is the first law on preventive detention post-independence. But it was passed only for one year and extended till its expiration in 1969. Later, various acts including MISA (Maintenance of Internal Security Act) 1971, COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Activities Act) 1974, TADA (Terrorist and Disruptive Activities (Prevention) Act) 1985 and POTA (Prevention of Terrorism Act) 2002 were made to check the terrorist activities, internal security and other illegal activities, but they all have been repealed. 

The current preventive detention law is the National Security Act, 1980 which confers powers on Central and State governments to safeguard the security of the country and to maintain public order. It was contended that the preventive detention law is violative of Articles 14, 19 and 21 as it does not employ a fair and just procedure of arrest and trial same as in other offences. But it continues in the Constitution as a necessary evil. 

Conclusion 

Once Nelson Mandela had quoted, 

“For to be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of others.”

Therefore, the right to freedom not only means that one is not bound by anyone, but it also includes freedom from any kind of pressure whether physical or mental, in any facet of one’s life. Also, while enjoying our rights of freedom given by our Constitution from Article 19 to 22, we should not forget that one’s rights end at the moment where other’s rights start. Hence, there are reasonable restrictions to check the irrational and illegitimate use of one’s freedom.

Frequently Asked Questions (FAQs)  

1: In which articles of the Constitution, the right to freedom is given?

The right to freedom is given in Article 19 to 22 of the Constitution.

2: What are the six freedoms under Article 19?

  1. Freedom of speech and expression,
  2. Freedom of assembly,
  1. Freedom of association, 
  2. Freedom of movement,
  3. Freedom to residence and settlement,  
  4. Freedom of profession, occupation, trade or business.

3: What is Article 21?

Article 21 discuss protection of life and personal liberty and states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” 

4: What are rights given under Article 20?

  1. Prohibition of ex-post-facto laws,
  2. Immunity from double jeopardy,
  3. Protection from self-incrimination.

5: Under which article law of preventive detention is provided?

Article 22 provides for the law of preventive detention.

References

  1. “Introduction to the Constitution of India”, D.D.Basu.
  2. ” V.N.Shukla’s Constitution of India”, Mahendra Pal Singh.
  3. https://lexforti.com/legal-news/reasonable-restrictions-article-19/ 
  4. https://indiankanoon.org/

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United Nations Human Rights Council

By
Rachit Garg
-
0

This article is written by Priyal Jain, a student of Amity Law School, Noida. The purpose of this article is to explain the concept of the United Nations Human Rights Council, and other relevant aspects related to the same.

It has been published by Rachit Garg.

Introduction 

The Human Rights Council is an inter-governmental body, i.e. a body which exists between two or more governments of different nations, and it is one of several different organs within the United Nations (UN) for pursuing a specific given agenda. The Human Rights Council is responsible for safeguarding and protecting the human rights of the people around the globe. It has the responsibility of taking an appropriate and required course of action in situations where human rights are violated. It also addresses various problems by voicing its opinions regarding the violation of human rights around the world. 

What is the United Nations Human Rights Council

The main function of the Council is to promote the idea of protecting the human rights of all the people around the globe, and to ensure the attainment of fundamental freedom by everyone, universally. The Council helps in the development of international human rights law (a body of the international law that is designed to protect human rights at all levels in the world), reviews the human rights records of member states, work to prevent abuses of human rights, respond to emergencies in cases where human rights are violated and serve as an international forum for discussion on human rights issues. Protection of women’s rights, minority rights, ethnic strife, and freedom from arbitrary arrest, also comes under the purview of this Council. 

The main objectives of this Council are:

  1. To investigate allegations of human rights abuse in member states of the UN. 
  2. To ensure that the below-listed human rights are guaranteed to all the people, and at the same time, it also tries to protect such guaranteed human rights.  
  • Freedom of assembly;
  • Freedom of speech and expression;
  • Freedom of religion;
  • Protection of women’s rights; and
  • Protection of rights of the LGBT community and that of racial and ethnic minorities.

History of the United Nations Human Rights Council

new legal draft

The Human Rights Council was created by the UN General Assembly on March 15, 2006, by resolution 60/251, after replacing the former 60-year-old UN Commission on Human Rights, which operated from 1946 to 2006. The former commission had become ineffective because it included the majority of the countries with a poor human rights record. The new body had its first session from June 19 to June 30, 2006. The Council adopted an ‘institution-building package’, in 2007 by resolution 5/1, to set up the Council’s procedures and mechanisms; which included the mechanisms of Universal Periodic Review (to analyse the situations of human rights in all UN member states), the Advisory Committee (to advise on the issues arising on human rights), and the Complaint Procedure (to acknowledge situations of human rights violation faced by individuals or organisations). The Council also has to work with the UN special procedures as it was established by the former Commission on human rights, and it comprises special representatives, special rapporteurs, independent experts, and working groups that monitor, examine, advise and report on the human rights issues in specific countries. The Council completed its ten years in June 2016 and celebrated the event through several events. 

Working of the United Nations Human Rights Council

The United Nations Human Rights Council works closely with the Office of the High Commissioner for Human Rights (OHCHR). The Human Rights Council regularly acknowledges the issue of violation of human rights of women and girls, especially at its June session, and the Council tries to protect the human rights of such women by finding solutions to their problem of human rights abuse. UN Women, through its Liaison Office in Geneva, also w toward this issue, and they try to ensure that such issues of women around the globe are addressed in the sessions of the Council, ensuring that the Council is not overlooking the issues of women. The Council takes part in various group discussions, and other side events to highlight issues related to women’s human rights. It also supports the participation, engagement, and work of gender equality advocates, i.e., advocates who fight for the equality of women in all aspects of society. The busiest year till date in the history of the Human Rights Council was 2021, when the Council worked towards introducing new innovations, breaking the boundaries, and setting new human rights standards, under the presidency of Ambassador Nazhat S. Khan of Fiji. 

In a landmark resolution 48/13, the Council recognised the human right to a clean, healthy and sustainable environment for the first time. In the 15-year history of the Council, for the first time in 2021, the Council allowed the delegates to vote remotely because of the COVID-19 situation and attracted the highest number of dignitaries ever to speak at its sessions. The Council also supported the participation of 19 delegates belonging to the least developed countries and small island developing states around the world through their respective Trust Funds. Also, for the first time, the Council held five sessions which concerned- Myanmar, the occupied Palestinian Territory and Israel, Afghanistan, Sudan, and Ethiopia. The Council also extended the mandates of 17 special procedures and investigative bodies, and created seven new mandates given below:

  • An accountability project on Sri Lanka.
  • A monitoring mission in Belarus.
  • A commission of inquiry on the occupied Palestinian Territory, and Israel.
  • A special rapporteur for Afghanistan.
  • A racial justice body addressing systemic racism in law enforcement around the globe.
  • A special rapporteur on climate change.
  • An investigative body for Ethiopia.

The Council is continuously criticised for not performing its job with perfection because many of the rotating seats in the Council are occupied by notorious human rights abusers themselves, like Saudi Arabia, Libya, China, Cuba, Syria, and many more, who have successfully used their power to steer the Council away from protecting the human rights of people. 

Membership in the United Nations Human Rights Council

On May 9, 2006, 47 countries were elected as member states of the Council, in compliance with paragraph 7 of General Assembly resolution 60/251. The distribution of seats is according to the equitable geographical representation, i.e. 13 seats are given to the group of African states and the group of Asia- Pacific states each, 6 seats are given to the group of Eastern European states, 7 seats are given to the group of Western European and other states and 8 seats are given to the group of Latin American and Caribbean states. To become a member of the Council, a country must receive the votes of at least 96 of the 191 states of the UN General Assembly, i.e. an absolute majority must be there. The UN General Assembly also takes into consideration the contribution of the candidate’s state in promoting and protecting human rights, as well as their voluntary pledges and commitments in this regard, while electing the member states. The members are elected for three years and are not eligible for immediate re-election after serving two consecutive terms. As it is said that leadership also comes with responsibility. Therefore, every member state is entrusted with the responsibility that they should themselves not be the violators of human rights. This is a criterion that was insisted on by the states themselves when they adopted resolution 60/251 in March 2006 to create the human rights Council, as countries like Saudi Arabia, China, and Cuba hold a powerful position in the Council which weakens the credibility of the Council, and as a result, people lose faith in the Council. 

The UN General Assembly has the power to suspend the rights of any Council member if the Council finds any member to have been continuously committing human rights violations during its tenure. The suspension comes into effect with a 2/3rd majority by the UN General Assembly. The USA pulled out of the Council in 2018 because of its disproportionate focus on Israel. Israel is the country that has by far received the largest number of critical council resolutions against itself. Sometimes, countries like China, Cuba, Eritrea, Russia, and Venezuela, which themselves are human rights abuses, were made the members of the Council. India was elected as a member of the Council on January 1, 2019. By December 31, 2022, 123 UN member states will have served as human rights council members, which reflects the diversity of the United Nations and gives the Council legitimacy when speaking out on human rights violations across the globe. 

Leadership of the United Nations Human Rights Council

The Council consists of a five-person bureau, with one president and four vice presidents, each representing one of the five regional groups. Each of them serves for a year, according to the Council’s annual cycle. Federico Villegas, who is the permanent representative of Argentina in the UN, was elected as the President of the Council for the 16th cycle (2022), in December 2021. The Office of the High Commissioner for Human Rights is the secretariat of the Council, which is headquartered in Geneva, Switzerland. 

Meeting of the United Nations Human Rights Council

The Council meets three times every year, and the three sessions are held in March (for four weeks), June (for three weeks), and September (for three weeks). All the three sessions together make up for a total of 10 weeks or more. The sessions are held at the United Nations office in Geneva, Switzerland, where the issues and situations of human rights violations that need the attention of the Council are discussed thoroughly. The Council also has the power to conduct urgent meetings at the request of any Council member with the support of one-third of the total Council membership on short notice to respond to any emergency on human rights crises. As of May 2022, 34 special sessions have been held. The last special session, of May 2022, was held on May 12, 2022, to discuss the human rights violation in Ukraine because of aggression shown by Russia. 

Member countries of the UN Human Rights Council

The 15 countries mentioned below were elected by the UN General Assembly as members of the UN Human Rights Council in January 2021, for three years. 

  1. Bolivia
  2. China
  3. Côte d’Ivoire
  4. Cuba
  5. France
  6. Gabon
  7. Malawi
  8. Mexico
  9. Nepal
  10. Pakistan
  11. Russian Federation
  12. Senegal
  13. Ukraine
  14. United Kingdom
  15. Uzbekistan

Conclusion 

The idea of establishing the United Nations Human Rights Council is great as in today’s world where many countries are violating the basic rights of their citizens, this Council could be their saviour. The Council needs to work effectively to improve its drawbacks to reach its full potential. The Council needs to remove all the member states who themselves are human rights abuses and work towards securing human rights for all the individuals and organisations around the globe, as the basic human rights of everyone must be protected at any cost. 

Frequently Asked Questions (FAQs)

  1. Will NGOs and other observers participate in the proceedings of the Council as they did with the Commission on Human Rights?

Yes, they will actively participate in the Council, along with specialised agencies, inter-governmental organisations, and national human rights institutions, through the same arrangements and practices that applied to the Commission. 

  1. Can a member have their rights and privileges suspended in the Council?
    Yes, the General Assembly has the right to suspend the rights and privileges of any Council member that it considers, is persistently committing gross and systematic violations of human rights during its term of membership. This process of suspension requires a two-thirds majority vote by the General Assembly. 
  2. Is Russia suspended from the United Nations Human Rights Council, and if yes, then why?

Yes, the United Nations on April 8, 2022, suspended Russia from the Council for the systematic violation by Russian troops in Ukraine. 

  1. When is the human rights day observed every year?

On December 10

  1. Who is Ajai Malhotra?

He is the chairperson of the Advisory Committee of the United Nations Human Rights Council, Geneva, and is the first Indian to hold this post. 

References 

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

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

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Article 42 of the Indian Constitution

By
Sneha Mahawar
-
0

This article is written by Sambit Rath, a B.A LL.B student of Dr. Ram Manohar Lohiya National Law University, Lucknow. This article aims to cover all the aspects of Article 42 of the Indian Constitution.

This article has been published by Sneha Mahawar.

Introduction

“A good work culture and work environment are very crucial in helping your employees to put their best foot forward.” 

– Pooja Agnihotri. 

Having a wonderful, high-paying job would indeed make anyone happy. But what decides if one continues in that job for a long time, even if it is a low-paying job, is the work environment. Having a positive and humane work environment would ensure employee job satisfaction and would increase overall productivity. Add to this the basic requirement of female employees to get maternity leave. The Constitution makers had picturised a society where every citizen had all the basic requirements. This motivated them to make certain principles that direct the state in policy-making to establish ‘Ram Rajya.’ These principles came to be known as the Directive Principles of State Policy. One of these principles, Article 42 of the Indian Constitution, directs the state to make provisions for just and humane conditions for work including maternity relief. 

Purpose of Article 42 

The state employs people in its companies and other organisations to provide public services. Some of these services include construction, banking, sanitation, etc. Considering the fact that most of India’s population is poor, many such people find work in these low-paying sectors. With a low-paying job, comes a low-quality work environment. For example, construction workers had to work with no safety gear in the earlier days. Sanitation workers were not given the proper equipment to work with. These working conditions were not at all humane and led to many accidents. Earlier, female employees used to get fired from their jobs when they had to take maternity leave. Some even tried to work through those months to avoid losing their job.

To ensure that the state changes its casual attitude towards its employees, Article 42 was added to the draft constitution. Article 42 of the Constitution of India states that the state shall make provisions for ensuring just and humane conditions of work and maternity relief. The nature of this Article was such that when it was put up for discussion, it was passed without any debate and was adopted on 23rd November 1948. 

Directive Principles of State Policy 

Directive Principles of State Policy (DPSP) are moral guidelines for the government to guide in policy making. Article 42 is a part of these principles. The objective of the DPSPs is to guide the state in making policies that better the social and economic conditions of the country. This concept was borrowed from the Irish Constitution. Articles 36-51 in Part IV of the Indian Constitution deal with DPSP. These are non-justiciable and non-enforceable in nature, which means the courts cannot hold the state liable for not implementing these principles. This is because India did not have the financial resources nor the means to implement these at the time the Constitution saw the light of the day. It became the duty of the state to implement these in the future as the country kept developing.

Even though these principles are non-justiciable, the state has taken inspiration from these and has implemented them in its policies. The courts too have taken these into consideration while pronouncing judgements. Some of the policies include: 

Essential features of Article 42 of the Indian Constitution

We have seen till now what is the purpose of Article 42 and its role in Directive Principles of State Policy. Now let’s look at the essential features of Article 42:

  • It directs the state to make laws that ensure just and humane conditions at work and provide for maternity benefits.
  • This principle, like the others, is non-justiciable. It means this principle cannot be enforced in a court of law.
  • It imposes a duty on the Central as well as the state governments to apply this principle in making laws relating to maternity benefits and working conditions in factories, etc.
  • Its aim is to create such working conditions that each and every employee will be motivated to work efficiently. It also aims to ensure maternity benefits for female workers so that they can take a leave from work while in labour, without worrying about losing their job.
  • Acts as a yardstick for the public to measure government actions related to working conditions and maternity relief.
  • It can be used by the courts to help them in taking decisions when the executive or the administration has taken questionable actions against what is stated by this principle.
insolvency

Landmark judgements regarding Article 42 

Over the years, the courts have tried to emphasise the importance of DPSPs by applying them to their judgements. 

In the case of Municipal Corporation of Delhi v. Female Workers on 8 March 2000, female workers who were not regular workers but were temporary workers claimed that they were entitled to maternity benefits that are available to regular workers. The Court held that the provisions of the Maternity Benefit Act, 1961 are in line with Articles 39 and Article 42. It stated that a female employee cannot be compelled to work while she is in an advanced pregnancy as it would be harmful to her as well as her child. It is for this reason that the Act provides 6 weeks of maternity leave before and after delivery.

B. Shah v. Presiding Officer, Labour Court, Coimbatore, and Ors. on 12 October 1997 is another case. In this, the Supreme Court had to decide if Sundays were to be excluded in calculating maternity benefits for the period covered in Section 5. The Labour Court held that Sundays must be included. It applied the beneficial rule of construction in favour of the female workers and said that the benefit provided by the Act when read with Article 42 of the Constitution of India was intended to allow the woman worker to make up for her dissipated energy and maintain the level of her previous efficiency and output.

In the case of Anshu Rani v. State of Uttar Pradesh & Ors., on 19 April 2019, the petitioner had asked for maternity leave of 180 days as she was in labour. But the respondent provided leave for only a period of 90 days. Subsequently, the petitioner requested again and the respondent didn’t budge. Also, for both instances, no reasoning was provided by the respondent. The Allahabad High Court held that the request made for 180 days of maternity leave was valid and directed the state government to grant maternity leave of 180 days with full payment to all female employees irrespective of the nature of employment.

The Court also made some very important observations that are relevant to our topic. It stated that the Maternity Benefit Act, 1961 was made in consonance with the provisions of Article 42 which speaks about just and humane conditions of work and maternity relief. The validity of government action in denying maternity benefits has to be examined on the anvil of Article 42 which even though not enforceable at law, is still available for determining the legal efficacy of the action. Here, the Court made it clear that any governmental action can be measured by the public by taking DPSPs as a yardstick and the courts can use DPSPs to add weight to their decisions.

Laws embodying the principles of Article 42 of the Indian Constitution

Maternity Benefit Act, 1961

The Maternity Benefit Act is aimed to protect female employees during their maternity period from losing their jobs. It allows women to take paid leave when they are in labour. According to Section 2 read with Section 3(e), it applies to establishments owned by the government, factories, mines, and plantations. It also applies to establishments defined under law, as having 10 or more employees during the preceding 12 months. 

A woman to be eligible for the benefits under this Act should be an employee in an establishment for a period of at least 80 days in the past year. After the Amendment to the Act in 2017, the period of maternity leave has been extended from 12 weeks to 26 weeks. Other such extensions have also been made. 

The Act was the state’s way of applying the principle given in Article 42 of the Indian Constitution. Now, any eligible female worker can approach the courts if she is denied maternity benefits by her employer.

The Factories Act, 1948

This Act is aimed to regulate labour in factories in India. It contains provisions on health, safety, leave, welfare, and working hours of workers. It also provides for inspecting staff for factories, penalties for violations of provisions, etc. 

Section 7A of the Act directs the occupier to ensure the safety, welfare, and health of all workers while at work. It is the duty of the occupier to see that there are no risks with the handling of machinery and tools in the factory. The Act also provides that the factory must be kept clean by ensuring that accumulated dirt is cleaned daily and floors of the workroom are cleaned every week. There should also be a proper drainage system, a sufficient supply of drinking water, and conveniently suited urinals. It also states that no worker shall be made to work more than 48 hours in a week and 9 hours a day. All these steps would ensure that the workers work in just and humane conditions, which is provided in Article 42 of the Constitution as a directive to the state.

Conclusion 

Often people who work in certain public sectors where the job involves a high amount of risk to their safety, are exploited because they lack basic awareness of their rights. Also, employees are made to work overtime without any remuneration. Such exploitation only harms the employees. It is the duty of the State to create just and safe working conditions for its workers and employees. It is also important that female workers who are in labour get maternity relief. The purpose of Article 42 was to deal with these issues. As time has passed, the State has shown responsibility by giving teeth to this principle by enacting legislation based on it. The Maternity Benefit Act, 1961, and the various acts dealing with working conditions like the Factories Act, 1948 are proof that the state has acted on the directions given by Article 42 of the Indian Constitution. The courts, using this Article and the provisions laid down by the Acts discussed above in delivering justice, have kept the spirit of this principle alive.

References 

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

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

https://t.me/lawyerscommunity

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Abhyuday AgarwalCOO & CO-Founder, LawSikho