This article is written by Priyal Jain, a student of Amity Law School, Noida. This article will tell the readers about chain of custody, its importance in trials, and the procedure to establish an unbroken chain of custody.
It has been published by Rachit Garg.
Table of Contents
Introduction
In all cases, civil or criminal, presenting of the authenticated evidence before the court plays an important role in determining the decision of the case. In order to keep the evidence in its true and correct form, the term ‘chain of custody’ is brought into light. Chain of custody, in a layman language means the sequence or the order of procedures which any evidence collected by the police, has to go through in order to maintain its authenticity. It is the prosecutor who has the burden of proof in the court to present and prove the correct chain of custody. However, the aim of the defence is to find loopholes or violations in the chain of custody presented by the prosecution.
What is chain of custody
Chain of custody is a legal term, which refers to the chronological sequence in which the items of evidence are to be handled for the successful investigation of a case. It must be proved in the court that the evidence is handled through the correct chain of custody, and only then will the evidence be admissible in the court of law. The chain of custody tells who has collected the evidence from the crime scene (or anywhere else), who has handled it, who analysed and transferred the evidence, and where the evidence was stored. All the physical or electronic evidence is included here. Some common types of evidence includes-
Blood
DNA samples (fingerprints, footprints)
Documents
Photographs
Videos
E-mails, text messages
Internet history
If any of the evidence is brought to the court, and has undergone a broken chain of custody, the evidence cannot be presented in the court of law. The chain of custody must always be maintained by identified persons, who have the authority by law to possess the evidence such as police officers, forensic experts, evidence technicians, officers of the court, etc.
Chain of custody must be maintained in-
Criminal investigation
Civil litigation
Dope testing of athletes
Clinical trials
Violence and abuse cases
Fields of history, art collection
Postal services
Research if animals are ethically raised or not
Seizure of prohibited substance
Seizure of money, gold ornaments or other valuables by income tax, customs or revenue departments
Testing of food products
Firearms injuries
Why is it important to maintain chain of custody
Chain of custody begins from the crime scene itself, and continues till the evidence is presented in the court. Chain of custody exists to ensure full transparency of the process of how an evidence is collected, handled and stored. It is of the utmost importance in a case to maintain each and every record of the evidence from the date of collection to the date of presentation before the court, because if even any one entry is missed, the evidence will become inadmissible in the court and non presentation of even one evidence can assuredly affect the decision given by the court. A broken chain of custody can result in failure to serve justice. A paper trail must be maintained so that people in- charge of the evidence can at any moment be quickly identified and called upon to testify during a trial if necessary. When a proper chain of custody is maintained, it prevents the police officials and other lab or law officers to tamper the evidence, as the record of who collected the evidence, who handled it, period of guardianship of the evidence, safeguarding conditions while storing the evidence, and how an evidence is handed over to the subsequent custodians each time a transfer takes place, and through this record if any evidence is tampered it can be easily traced as to who played with the evidence and can thus be punished for the same. The chain of custody helps in maintaining the integrity and authenticity of the evidence by careful and cautious handling of the evidence.
In the case of Mukesh and Ors. v. State (NCT of Delhi) and ors, (2017) the Supreme Court said that a DNA sample is admissible in the court only when it is proved that there is no error in sampling and the sample is not tampered.
In the much controversial O.J. Simpson murder trial case in the 1990s, there was an improper handling of evidence and a broken chain of custody.
Role of police in maintaining a chain of custody
It is the duty of the police officials to maintain an unbroken chain of custody for the successful trial of a case. The duty of the police officers commences from:
Collecting the evidence from the crime scene.
Keeping the evidence collected safe in sealed bags with unique identification numbers.
Examining the evidence collected.
Be responsible if the evidence is transferred to another specialist for examination or analysis.
Handle all the transfers of the evidence taking place.
Maintaining the record of every procedure which the evidence is handled through.
Presenting the evidence with all authenticated records before the court.
If there appears to be a broken chain of custody, or if any evidence is found tampered, in such a case the police officers who are entrusted with the responsibility of keeping the evidence safe are questioned and the outcome of the trial is also affected. So, maintaining a proper chain of custody is a very crucial responsibility and the police officers must perform this responsibility with the utmost vigilance.
Chain of digital evidence
Due to advancement in technology, nowadays digital evidence has also become an important part of the legal proceedings, apart from physical evidence. Digital evidence includes text messages, photographs, videos, information stored in hard drives, internet history, and many more.
In the case ofState vs. Mohd. Afzal and Ors. (2003), the Delhi High Court said that computer generated electronic records are considered as evidence, and are admissible in a court if proved in the manner as is described in Section 65B of the Indian Evidence Act, 1872.
In another case of Arjun Pandit Rao vs. Kailash Kushanrao (2020), the Supreme Court said that compliance with the provisions of Section 65B of The Indian Evidence Act, 1872 is a necessary condition for admissibility of electronic evidence in the court.
In the case ofAnvar P.V. v. P.K. Basheer (2014), it was held by the Supreme Court that a written and signed certificate under Section 65B(4) of the Indian Evidence Act is mandatory for admissibility of electronic evidence. The Court also said that oral evidence cannot be presented to support the electronic evidence.
For these reasons, digital evidence is always kept password secured and is under the charge of a computer forensics technician.
Chain of drug test evidence
Many a times, the court can order a drug test, like a drug test of players, doctors, parents wanting custody of the child, and other situations. The test varies according to the rules of a particular jurisdiction. All types of illegal substances are detected in this test. These tests mainly take place through saliva or urine samples. The court may also order a hair follicle test, when detection is for over a long period of time. The results of such tests can have a serious impact on the outcome of the case. Therefore, such samples must be handled with the utmost care, and a proper chain of custody must be established to ensure that samples and the name marks are not mixed, which is a very common malpractice. Every detail regarding the collection, storage, transfer, analysis and disposal of the sample must be noted down.
What information must be recorded to establish a chain of custody
It is important to document certain details that validate the evidence. The documentation may include information regarding the collection, transportation, storage, analysing, and general handling of the evidence. More and more details must be meticulously documented, so it leaves a lesser room for scrutiny. The ability to present the evidence in the court highly depends on the information documented, and if any necessary information is missed out, it will surely invalidate the evidence, which in turn can affect the outcome of the case.
The information that should be included in the documentation is:
Date of collection;
Time of collection;
Identity of the reporting agency;
Identity of the submitter;
Unique identifying code;
Location of the lab where examination has to be conducted;
Permission to conduct examination of the item;
Case investigator;
Descriptive list of items submitted for examination (includes the model, serial number and make);
Unique markings on the items;
Condition of the item;
Identity and signature of the examiner;
Brief description of steps taken during examination (searching old files, recovering erased data);
Signature of each individual involved in the chain of custody, with correct date and time; and
Any other relevant information about the item.
Procedure to establish chain of custody
Maintaining the correct chain of custody can prove to be a complex task. At the same time, it is equally important to maintain the chain of custody, and for such purpose a procedure is to be established and followed. Collection techniques, preservation, packaging, transportation and storage of the evidence are all part of the process used to establish a chain of custody.
The first step in the procedure to establish a chain of custody is collecting evidence. It involves identification, labelling, recording and collecting data from all the relevant sources. The data collected must be kept safely to retain its authenticity.
The second step is the examination of the evidence collected. It is important to note down all the methods and procedures that are taking place during the examination of evidence.
The third step is using legally justifiable techniques and methods to analyse the evidence and derive information useful enough to answer the questions raised in a “case”.
The fourth step is reporting all the information obtained by examining and analysing the evidence. It includes information like issues and weaknesses identified with suggestions for any other additional measure to re-examine the evidence, description of the various tools being used in the process.
There are some points enlisted below which must be remembered by the officials in- charge of the chain of custody-
The number of people handling the evidence must always be limited.
The package in which the evidence is kept must be sealed.
Before submitting the evidence in the court, double check the markings to avoid any confusion before the court.
Photos and screenshots of the original evidence must always be taken (physical or digital).
Modern software systems can help to track the movement of all types of evidence.
All the names, unique identification numbers, dates and other relevant information must be checked before submitting the evidence in the court.
Witnesses for the evidence can increase the credibility of the evidence.
Signed receipts of transfer must be obtained.
Conclusion
Maintaining a proper chain of custody must be considered as a professional and ethical responsibility for those who are incharge of the evidence. In India, very few people have the habit of following the procedure. In the same way, a correct chain of custody is hardly maintained by the officers as they think that it does not hold much importance, but little do they know that the admissibility of any evidence in the court of law depends on the nature of the chain of custody maintained by them. Therefore, it is important to create awareness about the procedure to maintain a correct chain of custody among the officials dealing with such cases. This will gradually help in ensuring quick justice to the people.
Frequently Asked Questions (FAQs)
What happens to the case when the chain of custody is altered ?
If the chain of custody is broken or altered, the evidence will be inadmissible in the court of law, and it can affect the outcome of the case especially when the prosecution depends on that particular evidence for proving a certain point.
Does chain of custody apply to mail in voting ?
Yes, especially once a ballot is completed by the voter and submitted to election officials.
When does the chain of custody begin and when does it end ?
The chain of custody begins when the sample or evidence is collected from the crime scene and ends when the same sample or evidence is presented before the court.
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This article has been written by Ziya ur Rahman Karimi of Jamia Millia Islamia, New Delhi. This article provides a detailed analysis of the Protection of Human Rights Act, 1993.
As a member of the human family, every individual must have some rights against the state or other public authorities, and these rights are known as “human rights”. Human rights are as old as the ancient doctrine of natural rights, which is based on natural law. The term “human rights” as we know it today is a relatively new concept. They are derived from international charters and conventions enacted after World War II.
In India, the Protection of Human Rights Bill, which had already been passed by both Houses of Parliament, got the assent of the President on January 8, 1994. It was thus enacted as The Protection of Human Rights Act, 1993.
Historical background of Protection of Human Rights Act, 1993
The first documented use of the term “human rights” can be found in the United Nations Charter, which was established after World War II in San Francisco on June 25, 1945. This charter was not legally binding. It actually defined the ideal, which would later be developed by many agencies and entities. In December 1948, the United Nations General Assembly took a significant step to ensure the protection of human rights and adopted the Universal Declaration of Human Rights. But the problem was that the UN had no mechanism for enforcing this declaration because it was not a legally enforceable covenant.
The United Nations General Assembly aimed to address the issue by adopting two covenants for the protection of human rights in December 1965:
the Covenant on Civil and Political Rights,, and
the Covenant on Economic, Social, and Cultural Rights. The first established legally enforceable individual rights, while the second urged states to put them into effect through legislation.
The two Covenants entered into force in December 1976, after being ratified by the required number of member states. Following that, at the end of 1981, many states, including India, ratified the Covenants. As a result, the ratifying states became legally bound by these covenants.
In the early 1910s, India was globally criticized for the violations of human rights by its armed forces in the state of Jammu and Kashmir. The USA and various other countries from the western world pressured the Indian government to take cognizance of the cases of human rights violations in the country. In addition to the international pressure, there was a considerable demand on the national level for such a law that would deal with the various issues related to human rights violations.
Therefore, considering the demand at the national level and as a constructive reply to the criticism of foreign countries, the Human Rights Commission Bill was first introduced in the Lok Sabha on May 14, 1992. After a deliberate discussion, the Bill was referred to the Parliament’s Standing Committee on Home Affairs.
However, in response to international and local demands, the President of India promulgated an Ordinance on September 27, 1993, that established a National Commission on Human Rights. Following that, on December 18, 1993, the Lok Sabha passed a Bill on Human Rights to replace the ordinance, and the Bill became an Act on January 8, 1994. This Act came into force on September 28th, 1993, as provided in Section 1(3) of the Act.
Thus, the commission was established by an ordinance of the President on September 27, 1993. Justice Ranganath Misha, the former Chief Justice of India, was the first chairperson of the commission, appointed on October 12, 1993.
Need for the Protection of Human Rights Act, 1993
India is a member of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights, both of which have been ratified by the United Nations General Assembly on December 16, 1966. The Constitution substantially protects the human rights enshrined in the aforementioned Covenants. Therefore, it was the need of the hour to enact this law.
There was a significant increase in the country and abroad on issues relating to human rights. Considering the changing social realities and emerging trends in the nature of crime and violence, the government reviewed the existing laws, procedures, and systems of justice administration with a view of bringing greater accountability and transparency to them, and developing efficient and effective methods of dealing with the situation. As a result, the government realized that the enactment of a law that specifically deals with the issues of human rights is now necessary.
Numerous conversations were held at various fora, including the Chief Ministers’ Conference on Human Rights, seminars hosted throughout the country, and talks with leaders of major political parties. The viewpoints expressed in these discussions strongly urged the enactment of this legislation.
Scope of the Protection of Human Rights Act, 1993
Originally, it was provided in Section 1(2) of the Act that this Act applies to the whole of India and, in the case of Jammu and Kashmir, it applies to the union list and concurrent list only. However, this proviso has been omitted by Act 34 of 2019, and effectively, now this Act extends to the whole of India.
Salient features of the Protection of Human Rights Act, 1993
To protect human beings from violations of their rights. “Human Rights” include the right to life, liberty, equality, and dignity, as guaranteed by the constitution.
To protect these rights from abuses of power committed by state bodies.
To establish an organization for the advancement of existing living beings and the development of their personalities.
To provide effective and necessary actions for securing remedies in the event of a violation of rights.
The most significant feature of the Act is that it establishes the National Human Rights Commission, State Human Rights Commissions, and Human Rights Courts to prevent and prosecute serious human rights violations.
Important provisions of the Protection of Human Rights Act, 1993
The important provisions of the Act could be divided into four parts as follows:
Definition of “Human Rights” [Chapter I, Sec. 2 of the Act]
NHRC: Constitution, Functions, Power, and Procedure [Chapters II, III, & IV, Sec. 3-20]
SHRC: Constitution, Functions, Power and Procedure [Chapter V, Sec. 21-29]
Human Rights Courts [Chapter VI, Sec. 30 & 31]
All of the topics listed above, including the relevant sections and case laws, will be thoroughly covered in the following.
Part I of the Act: Definition of Human Rights
Section 2(d) of the Act defines human rights as individual rights to life, liberty, equality, and dignity guaranteed by the Constitution or recognized in international covenants and enforceable by Indian courts. The abovementioned definition, however, limits the scope of the functions of the National Human Rights Commission. As a result, India ratified only the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. However, the covenants are not directly enforceable as law in Indian courts. Therefore, under the Protection of Human Rights Act 1993, the definition of human rights is firmly limited to the fundamental rights included in Part Ill of the Constitution, which are enforceable by Indian courts.
Case laws related to the definition of “Human Rights”
Beenu Rawat v. Union of India (2013)
Facts
In this case, the members of the Aam Aadmi Party, while protesting against the non-registration of FIR in of rape case, were lathi-charged by the police, which resulted in injuries to the protesters.
Issue
Whether the use of force exercised by the police was unjustified and excessive and whether the act of the police violated the fundamental right to life of dignity.
Decision
The Supreme Court transferred this case to the National Human Rights Commission and in view of Section 12(a) of the Protection of Human Rights Act of 1993, the commission was asked to investigate the alleged violation of the fundamental right to life and dignity of the protesters. The court further clarified that the definition of “human rights” is broad enough to include rights relating to life, liberty, equality, and dignity of the individual guaranteed by the Constitution.
P.T. Munichikkanna Reddy v. Revamma (2007)
In this case, the Supreme Court declared that the right to property is now recognized to be a human right as well as a constitutional or statutory right. Human rights have traditionally been understood as individual rights, including the right to health, the right to a livelihood, the right to shelter and employment, and so on, but they are now taking on a more complex character. The right to property is likewise regarded as an important part of the new dimension. Therefore, even an adverse possession claim must be viewed from that perspective.
Facts, issues, and judgments related to this case are given below.
Facts
The appellants purchased the entire land (5 acres 25 guntas), by two different sale deeds of 1934 and 1936. However, when the appellants’ possession was sought to be disturbed by the respondent in 1988, they filed a suit claiming their title on the basis of adverse possession, stating that they had perfected their title by adverse possession as they had been in open, continuous, and hostile possession of the property, adversely to the interest of the respondent-defendant for the past 50 years, exercising the absolute right of ownership in respect of the said property. The trial court decreed the suit.
On appeal, the High Court reversed the judgment of the trial court, holding that an important ingredient of adverse possession had not been satisfied. The High Court held that important averments of adverse possession, viz., to recognise the title of the person against whom adverse possession was claimed, and to enjoy the property adverse to the title-holder’s interest after making him aware that such enjoyment was against his interest, were absent both in the pleadings as well as in the evidence. The High Court also held that the finding of the trial court that possession of the plaintiffs became adverse to the defendants between 1934 and 1936 was an error apparent on the face of the record.
Issue
Had the High Court overlooked the concept that acknowledgment of the owner’s title was not a prerequisite for claiming ownership by prescription?
Held
The Supreme Court dismissed the appeal and awarded Rs 25,000 as damages. The court further ruled: “Adverse possession, in one sense, is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession.”
Part II of the Act: National Human Rights Commission (NHRC)
Chapters II, III, and IV of the Act deal with the constitution, composition, and functioning of the NHRC.
Constitution of the NHRC
The constitution of the National Human Rights Commission (NHRC) is dealt with in Chapter II of the Act. Section 3 (1) of the Act provides that the Central Government shall establish the National Human Rights Commission.
Composition of the Commission
Section 3(2), (3) & (4) of the Act provides for the composition of the Commission. Details are as follows.
Chairman of NHRC
Retired Chief Justice of India
Member 1
One who is/has been a Judge of the Supreme Court of India
Member 2
One who is/has been a Chief Justice of a High Court
Three Members (out of which at least one shall be a woman)
They are to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights.
Deemed Members (Ex-officio Members)
Deemed members are chairpersons of the following national commissions: National Commission for Backward ClassesNational Commission for MinoritiesNational Commission for Protection of Child RightsNational Commission for the Scheduled CastesNational Commission for the Scheduled TribesNational Commission for WomenChief Commissioner for Persons with Disabilities
Click here for a detailed list of current members of NHRC.
Headquarters of NHRC [Section 3 (5)]
Section 3(5) of the Act provides that Delhi shall be the headquarters of the Commission. However, the Commission may, with the prior approval of the Central Government, establish offices in other places in India.
Appointment of NHRC Members [Section 4]
Section 4 deals with the appointment of the Chairperson and other members. As per this section, a selection committee will recommend the candidates to the President.
The Selection Committee includes:
Prime Minister (Chairman)
Speaker of the Lok Sabha
Union Home Minister
Deputy Chairman of the Rajya Sabha
Leaders of the Opposition in both Houses of Parliament
This section further provides that a sitting Supreme Court Judge or Chief Justice can not be appointed without consultation with the Chief Justice of India.
Case Law Related to the Appointment of Members of the NHRC
The central government appointed an ex-senior police officer who has served as the director of the CBI and was also Vice President of (Asia) Interpol, as a member of the NHRC.
The petitioner filed a writ petition and challenged this appointment.
The central government was respondent 1 in this case, and the police officer who was appointed was respondent 2.
According to the petitioner, the installation of a person who served in the police force as a member of the NHRC violates the terms of the Act, as well as the fundamental goals and objectives for which the Commission was established.
Therefore, such an appointment would impact the status of the Commission as well as its international recognition as a human rights agency.
Issues
The question that arose before the Supreme Court was whether Section 3(2)(d) of the Act required any interpretation or construction which would exclude police officers from becoming members of the NHRC.
The second issue was that there was a statutory error in the appointment of the second respondent because one of the six members of the selection committee did not attend the meeting.
The third issue was that since the “Paris Principles” (these principles were subsequently endorsed by the UN Human Rights Council and the UN General Assembly) prohibited the appointment of a civil servant like a police officer to such a Commission, the appointment of the second respondent, who is a former police officer, is also violative of international covenants.
The fourth issue was that the second respondent was appointed without consulting the Chairperson of the Commission, as has been the practice since the establishment of the Commission. As a result, the appointment is invalid as per the law.
Decision
The Supreme Court dismissed the petition, holding that the clear text of Section 3(2)(d) leaves no space for interpretation because the text is quite clear. It simply means that any two people with knowledge of or practical expertise in human rights issues are eligible to serve in the Commission. This section’s straightforward language cannot be corrupted by any conclusion based on public perception or prejudice. This section does not exclude any group of people as long as they have knowledge of, or practical experience with, human rights issues, as required by the Selection Committee. Because there is no exclusion in Section 3(2)(d) of the Act and the language is unambiguous, the Court cannot read an exclusionary clause to exclude police officers from serving on the Commission irrespective of the fact that the Act does not provide for the same.
The quorum for selection: A review of the Act reveals that no quorum has been established for the selection, that no meeting has been scheduled, and that no specific procedure has been established. Consultation by circulation is not prohibited by the Act. In such a case, the absence of one of the six members of the Selection Committee would not invalidate the decision of the other five members. Section 4(2), on the other hand, expressly states that no appointment of a chairperson or a member shall be void only because of a vacancy on the committee. There is no statutory mistake in the appointment of the second respondent because the Prime Minister, the Speaker of the House of People, the Minister in charge of the Ministry of Home Affairs in the Government of India, the Leader of the Opposition in the House of People, and the Deputy Chairman of the Council of States all agreed on it.
Declarations in international fora are not binding: The Supreme Court ruled that neither the Paris Principles nor the subsequent UN General Assembly Resolution can be brought to the level of a covenant in international law. Because the NHRC is governed by an Act of the Indian Parliament, neither the Paris Principles nor the UN General Assembly Resolution can overrule the provisions of the Protection of Human Rights Act.
Consultation with the Chairperson of NHRC for the appointment of Members of NHRC: The court ruled that there is no obligation under the Act for the Selection Committee, which is composed of high-ranking officials in this country, to communicate with the Chairman of the Commission before appointing a member. When a statute vests a function in a committee composed of such high dignitaries holding high constitutional positions, it would be unconstitutional to put the necessity of consultation with the Chairman of the Commission into the statute. The provision for the appointment of the Chairperson and other Commission members envisions a self-contained system, and no other mandatory requirement can be imported into the Act where none exists.
Tenure of office of the members [Section 6]
Section 6 of the Act provides that the Chairperson or any other member shall hold office for a term of 3 years or until they attain the age of 70 years, whichever is earlier and shall be eligible for re-appointment.
Removal of the Chairperson or any other member [Section 5]
Section 5 of the Protection of Human Rights Act, 1993, lays down the procedures and grounds for the removal of any member of the Commission.
As per this section, the Chairperson or any other member of the Commission may be removed from office only by the President on proven misbehavior or incapacity. In this case, however, the President is required to refer the matter to the Supreme Court for investigation. And, if the Supreme Court upholds the cause of removal and advises the President, the Chairperson or a member of the NHRC can be removed.
Further, the President, under the provisions of this section as mentioned above, has the authority to remove the Chairperson or any other member if he:
is adjudged insolvent; or
engages in any other paid employment outside the duties of his office during his term of office; or
is unfit to continue in office due to infirmity of mind or body; or
is of unsound mind and is so declared by a competent court; or
is convicted and sentenced to imprisonment for an offense that, in the President’s opinion, involves moral corruption.
Functions and powers of the Commission
As per Section 12 of the Act, the functions and powers of the National Human Rights Commission are as follows:
NHRC can investigate any complaints related to violations of Human Rights or negligence in the prevention of such violations by a public servant; either suo-moto or after receiving a petition.
NHRC can interfere in any judicial process involving any allegation of human rights violation.
It has the authority to visit any prison or institute under the control of the state governments to observe the living conditions of inmates. It can also make recommendations to the authorities based on its observations.
NHRC can examine the articles of the Constitution that protect human rights and make recommendations for punitive measures.
Examine the causes that obstruct the enjoyment of human rights, including acts of terrorism, and make recommendations for proper remedies.
Study human rights treaties and other international instruments and make suggestions for their effective implementation.
The Committee undertakes and promotes research in the field of human rights.
Human Rights Literacy and awareness of the safeguards available for the protection of these rights are promoted by NHRC in various sectors of society through different media, seminars, publications, etc.
Encourage non-governmental organizations and institutions that work in the field of human rights;
The National Commission for Human Rights may perform any other function that it considers necessary for the promotion of human rights.
Section 13 of the Act provides that the NHRC while investigating complaints under this Act, has all of the powers of a civil court trying a case under the Code of Civil Procedure.
According to Section 14, the Commission is authorized to employ any officer or intelligence agency of the Central Government or any State Government to conduct an investigation related to the inquiry.
Section 20 provides that the Commission is obliged to submit an annual report as well as special reports to the Central Government and state governments.
Case Law related to functions and powers of NHRC
In Paramjit Kaur v. State of Punjab(1999), the Supreme Court of India laid down some guidelines and rules regarding the functions and powers of the Commission. Details of the case are as follows.
Facts
The Union of India has filed a petition to the Supreme Court, seeking clarification of an order issued by the same Court in a Writ Petition, in which the National Human Rights Commission was asked to investigate the blatant violations of human rights on a large scale in the state of Punjab, as revealed in the CBI Report submitted to this Court (Supreme Court) in the aforementioned writ petitions.
Issue
When the matter was brought before the Commission, preliminary objections were raised regarding the jurisdiction of the Commission, citing its statutory obligations and limitations, including the prohibition on inquiring into any matter after one year from the date on which the act of the violation of human rights is said to have been committed, as set out in Section 36(2) of the Protection of Human Rights Act, 1993.
Held
The Supreme Court, in the exercise of its jurisdiction under Article 32 of the Constitution of India, entrusted the National Human Rights Commission to deal with certain matters in the manner indicated in the course of its order. All authorities in the country are bound by the directions of the Supreme Court and have to act in aid of the Supreme Court. The National Human Rights Commission is no exception. The Commission would function pursuant to the directions issued by the Supreme Court and not under the Act under which it is constituted. In deciding the matters referred to it by the Supreme Court, the National Human Rights Commission is given a free hand and is not circumscribed by any conditions. Therefore, the jurisdiction exercised by the National Human Rights Commission in these matters is of a special nature not covered by enactment or law, and thus, acts sui generis.
Human rights Violations: landmark judgments by NHRC
The following are some of the important cases in which the NHRC intervened and formed a positive approach to prevent human rights violations.
Case One: Gujarat Riots
In this case, the National Human Rights Commission took suo-moto cognizance in response to media reports about the finding of a mass grave in Lunawada village, Panchmahal District, Gujarat. The Commission asked for a report on the matter from the State Government and the CBI.
In Gujarat, communal violence on a large scale was recorded in February and March 2002. Approximately three thousand members of the minority Muslim community were massacred, and the property was destroyed.
The Gujarat state government and police failed to take the necessary measures to avoid violence and failed to provide protection, security, and justice to Muslim minority community victims. The NHRC initiated a suo-moto inquiry into these incidents and instructed the state administration to report on the steps taken to restore calm in Gujarat. The Commission also petitioned the Supreme Court of India on behalf of the Gujarat riot victims.
Case two: Punjab mass cremations
The Supreme Court referred this case of gross violation of human rights to the NHRC. The Commission found that the bodies of these people were burned by state authorities in contempt of cremation procedures for unidentified bodies. The Commission held that the act violated the dignity of the dead and harmed the emotions and sentiments of their kin, who would have wanted to perform their last rites. Therefore, the Commission held the State of Punjab accountable and responsible for the infringement of the right to life. Accordingly, the Punjab government was directed by the NHRC to deposit Rs. 18,39,25,000/- within three months for distribution to the next of kin.
Besides this, the National Human Rights Commission also awarded compensation of Rs 1.75 lakh to the next of kin of the 1051 victims of this case of mass cremation in the state of Punjab.
Case three: starvation deaths in Orissa
The NHRC investigated complaints of starvation deaths in the Koraput, Bolangie, and Kalahandi Orissa districts.
On December 23, 1996, the Indian Council of Legal Aid and Advice and others filed a writ petition with the Supreme Court of India under Article 32 of the Constitution. On July 26, 1997, the Supreme Court of India concluded that the petitioner could approach the NHRC since this case is pending with them and they are likely to make a ruling. Recognizing the urgency of the situation, the Commission moved quickly to develop an interim measure for a two-year term and suggested that the Orissa State Government form a committee to review all land concerns. They dispatched a team to provide an update on the current situation and also appointed a special rapporteur to examine relief and rehabilitation activities.
In January 2004, the Commission held a conference with recognized specialists on the subject to discuss issues concerning the right to food. The Commission has authorized the establishment of a Core Group on the Right to Food, which will provide advice on issues raised and recommend suitable programs for the Commission to implement. In the context of India, this decision clearly confirms that economic, social, and cultural rights are recognized by the courts and the Commission in the same way as they recognize civil and political rights.
Case four-encounter deaths in Andhra Pradesh
In this case, the Andhra Pradesh Civil Liberties Committee (APCLC) complained to the NHRC regarding encounter deaths in which police killed people suspected of belonging to the People’s War Group. The police claimed that the deaths occurred as a result of armed militants resisting arrest, while the Andhra Pradesh Civil Liberties Committee insisted on extrajudicial killings that amounted to unjustified and unprovoked murders. They provided information on 285 similar cases. The NHRC reviewed six incidents involving the deaths of seven people and issued guidelines describing the procedure in relation to encountering deaths for the first time in India in 1997.
Case five: deaths due to silicosis
In this case, the National Human Rights Commission raised great concern about the deaths of tribals from Alirajpur Tehsil, Jhabua District, Madhya Pradesh, who worked as laborers in the quartz crushing plants of Godhra, Gujarat, from silicosis/silicotuberculosis. The Commission got informed of this tragedy after reading a news story titled “Death Stalks Godhra Again, in the Form of Silicon Dust” in the Indian Express on September 19, 2007. According to the report, these tribal people were exposed to silica dust at their workplaces with no protection. As per the report, around 2001 tribals have died in the last four years. The report added that those laborers who returned to their communities in Jhabua and died of silicotuberculosis in their villages received neither compensation nor retribution because they lacked formal proof to process compensation claims.
After going through the report, the Commission directed that the same be forwarded to the Chief Secretaries of Gujarat as well as the District Collectors of Panchmahal and Jhabua, for a factual report within four weeks. The Commission also dispatched a team from the Investigation Division to conduct an on-the-spot investigation.
Part III of the Act: State Human Rights Commissions (SHRC)
Chapter V, Sections 21–29, contains the provisions regarding the constitution, composition, and functioning of the SHRC.
State Human Rights Commissions are statutory, non-constitutional bodies (at the state level) involved in protecting human rights and examining violations that occur within their respective states, just like what the National Human Rights Commission does at the national level.
West Bengal was the first state in India to constitute a State Human Rights Commission, It was established on 31st January 1995. Now, As per the official information, 26 states have constituted the State Human Rights Commission.
Click herefor current updates and details regarding the chairpersons, members, and other officials of SHRCs in various states.
Constitution of SHRC
According to Section 21 of the Act, the State Government may establish a body known as the Human Rights Commission of that state.
Case Law related to the constitution of SHRC
In D.K. Basu v. State of W.B. (2015), the Supreme Court held that constituting a state Human Rights Commission is mandatory and does not depend upon the discretion of the state government.
Composition of SHRC
Section 21 of the Act provides that the State Human Rights Commission shall consist of the following:
Chairperson
Former Chief Justice or a Judge of a High Court
Two members
A Judge of a High Court or District Judge in the State with at least seven years of experience as a District Judge.A person who has knowledge as well as practical experience in human rights issues.
This section further provides that the Secretary shall be the Chief Executive Officer of the State Commission.
Appointment of members of SHRC
Section 22 provides that the Governor shall appoint the Chairperson and other members of the State Commission on the recommendation of a committee consisting of the Chief Minister, the Speaker, the Minister in charge, etc. A sitting High Court judge or a district judge could be appointed only after consulting with the Chief Justice concerned.
Tenure of the office of members
Provisions regarding the term of office of the chairperson and other members of the state commission are contained in Section 24, and it is the same as it was in the national commission. (3 years or 70 years of age, whichever is earlier, and they are also eligible for reappointment).
Scope and jurisdiction of SHRC
Subject to the principle of res judicata, the State Commission is authorized to investigate violations of human rights relating to any of the entries in Lists II and III of the Seventh Schedule of the Constitution of India.
Two or more state governments may, with the consent of a chairperson or member of a state commission, appoint such a chairperson or member of another state commission simultaneously if he consents to such appointment.
Chapter VI of the Act, comprising Sections 30 and 31, makes the provisions relating to the creation of Human Rights Courts in each district.
Section 30 of the Act authorizes the State Governments, with the consent of the Chief Justice of the High Court, to establish Human Rights Courts by Notification, specifying for each District a Court of Sessions to be a Human Rights Court. In line with Section 31 of the Act, the State Government shall appoint a public prosecutor or an advocate who has been in practice as an advocate for at least seven years for the purpose of conducting matters in the Human Rights Courts. Such a person would be known as a “Special Public Prosecutor.” It is, however, to be noted that it is not mandatory for the States to create Human Rights Courts in each and every district, as Section 30 of the Act expressly uses the expression “the State Government may set up the Courts.” However, in order to provide a speedy trial of offenses arising out of violations of human rights, it is desirable that states, particularly those where human rights violations take place in large numbers, should establish such courts.
Amendments to the Protection of Human Rights Act, 1993
The Act has been amended four times till now. The list of amending acts is as follows:
The Protection of Human Rights (Amendment) Act, 2000
The act was amended to provide the power to make rules retrospectively. Section 40A was incorporated into the Act to provide for the same.
The Protection of Human Rights (Amendment) Act, 2006
In this amendment Act, a few changes were made to the structure of SHRC, like reducing the members of SHRCs and changing the eligibility criteria for membership. Likewise, this amendment Act gave some more powers to the NHRC, like the power to visit jails even without intimation to the state governments.
This amendment Act also provided that the Chairperson of the National Commission for the Scheduled Castes and the Chairperson of the National Commission for the Scheduled Tribes shall be deemed to be members of the NHRC.
Click here for the detailed list of the sub-sections that were added through this Amendment.
The Protection of Human Rights (Amendment) Act, 2019
This amendment Act provides that a person who has served as a Supreme Court Judge, in addition to the Chief Justice of India, is qualified to be chosen as Chairperson of the Commission. It also provides to increase the Members of the Commission from two to three, including one who must be a woman,, and further includes include Chairperson of the National Commission for Backward Classes, Chairperson of the National Commission for Protection of Child Rights,, and the Chief Commissioner for Persons with Disabilities as deemed Members of the Commission.
The term of the Chairperson and Members of the Commission and State Commissions was lowered from five to three years by this amendment Act, and a person who has been a Judge of a High Court was also made eligible to be selected as Chairperson of the State Commission.
Lacune in the Protection of Human Rights Act, 1993
There are some shortcomings in the Act. They are as follows:
The NHRC cannot penalise authorities that do not carry out its orders.
If a complaint is filed more than one year after the event, the NHRC cannot investigate it.
This Act makes no mention of whether judges (NHRC members) should have a proven record of human rights activism or experience or qualifications in the area.
Dealing with human rights violations by the armed forces, the commission can simply ask for a report from the government and then provide recommendations.
There is no statutory requirement to include academics, representatives of NGOs,, or members of civil society that have contributed towards the enhancement of human rights.
It can only ask the authorities to approach the higher courts to provide relief to the victims. Within one month, the competent authority must either execute its recommendations or express its reasons for not doing so.
If private entities violate human rights, the NHRC has no jurisdiction.
It can only provide recommendations for remedies but cannot enforce them.
Suggestions
The 1993 Act compels all states to establish SHRCs and HRCs in their territories in order to achieve the goal of timely redress and remedy for all. The issue to examine is that the law does not specify how Human Rights Commissions should handle such complaints. The act makes no mention of the jurisdiction of such courts over charges alleging violations of human rights. This ambiguous and unclear aspect must be resolved by lawmakers as soon as possible so that the protection provided to human rights and the consequences of existing legislation are not frustrated.
Conclusion
People in India are now well aware of their constitutional rights, and this is because of the enactment of the Protection of Human Rights Act, 1993, and the establishment of the National Human Rights Commission (NHRC). The State Human Rights Commissions are also working along the same lines as the National Human Rights Commission. However, it still demands that the Special Courts/Human Rights Courts, as defined in Section 30 of the PHR Act, be continued in order to provide a speedy trial for offenses resulting from violations of human rights. Apart from that, human rights commissions in India need to be revamped if they are to truly protect human rights in the country. If the decisions and recommendations of the commission were made enforceable by the government as well, their efficacy and authority would be greatly enhanced. Misuse of laws by authorities is widely recognized as the root cause of human rights violations. Therefore, the NHRC should be provided more powers for the speedier disposal of cases.
FAQs
How are human rights defined in the Protection of Human Rights Act, 1993?
According to Section 2 of the Protection of Human Rights Act, 1993 (hereafter referred to as “the Act”), “human rights” refer to the rights of the individual to life, liberty, equality, and dignity guaranteed by the Constitution or embodied in International Covenants and enforceable by Indian courts. The terms “International Covenants” refer to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights, both of which were ratified by the United Nations General Assembly on December 16, 1966.
What powers have been vested with the Commission relating to inquiries?
The Commission shall have all of the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, while examining complaints under the Act, including, in particular, the following:
Summoning and enforcing witnesses to appear and questioning them under oath;
Document discovery and production;
Taking affidavit evidence;
Demanding a public document or a copy of one from any court or office;
Appointing commissions to examine witnesses or documents;
Any other matter that may be specified.
Does the Commission have its own investigation team?
Yes, the Commission has its own investigation committee, led by a Director General of Police, to look into complaints of human rights violations. The Commission has the authority under the Act to use the services of any officer or investigation agency of the Central Government or any State Government. In a number of cases, the Commission has collaborated with non-governmental organizations on the investigation.
Is the Commission autonomous?
Yes, the autonomy of commission arises, inter alia, from the method of appointing its Chairperson and Members, their fixed tenure and statutory guarantees, the status they have been accorded, and the manner in which the Commission’s staff- including its investigative agency- will be appointed and conduct themselves. Section 32 of the Act specifies the Commission’s financial independence.
The President appoints the Chairperson and Members of the Commission based on the recommendations of a committee composed of the Prime Minister as Chairperson, the Speaker of Lok Sabha, the Home Minister, the leaders of the opposition in Lok Sabha and Rajya Sabha, and the Deputy Chairman of the Rajya Sabha as Members.
How does the Commission inquire into complaints?
While examining complaints of violations of human rights, the Commission may ask for information or a report from the Central Government, any State Government, or any other authority or organization subordinate to it within the time specified by it; provided, however, that if the information or report is not received within the time specified by the Commission, the Commission may proceed to investigate the complaint on its own; on the other hand, if the information or report is received within the time specified by the Commission, the Commission may proceed to investigate the complaint on its own.
What steps are open to the Commission after the inquiry?
Step – I: If the inquiry reveals the commission of a human rights violation or negligence in the prevention of a human rights violation by a public servant, the Commission may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as the Commission deems appropriate against the concerned person or persons.
Step – II: Appeal to the Supreme Court or the respective High Court for any required directives, orders, or writs.
Step – III: Recommend to the concerned government or authority that the victim or members of his family be granted such urgent interim treatment as the Commission considers appropriate.
What procedure is prescribed under the Act with respect to armed forces?
The Commission may seek a report from the Central Government on its own initiative or in response to petitions filed with it alleging human rights breaches by military forces. After receiving the report, it may decide not to pursue the complaint or, in some cases, offer recommendations to the government. According to the Act, the Central Government must notify the Commission of any action taken in response to the recommendations within three months, or within such further time as the Commission may allow. It is also provided that the Commission shall publish its report, as well as its recommendations to the Central Government and the measures taken by that government in response to those recommendations. The petitioner will also receive a copy of the published report.
Can the complaint be in any language?
They may be in Hindi, Urdu, English,, or in any language included in the Eighth Schedule of the Constitution. The complaints should be self-contained. The filing of a complaint is free of charge. When it considers it necessary, the Commission may ask for more information and affidavits in support of claims. The Commission may, at its discretion, accept telegraphic complaints as well as complaints transmitted via FAX or email. Complaints can also be made via the mobile telephone number of the Commission.
What kinds of complaints are not entertained by the Commission?
Ordinarily, the Commission does not entertain complaints of the following types:
complaints pertaining to events that occurred more than one year prior to the filing of the complaints;
Matters that are under-judice;
matters that are vague, anonymous, or pseudonymous; d) Which are of frivolous nature
pertaining to service matters.
What is the responsibility of the authorities/states/central governments to which reports/recommendations have been sent by the Commission?
In the case of general complaints, the authorities/State Government/Central Government must respond to the Commission’s report and recommendations within one month, and in the case of complaints involving the armed forces, within three months.
What are the kinds of issues on which complaints have been received?
The Commission has dealt with a diverse variety of complaints since its establishment. The following are the most common types of complaints that the commission has received in the recent period:
Failure to take action (in respect of administration)
Unlawful detention
False implication
Custodial violence
Illegal arrest
Custodial deaths
Encounter deaths
Harassment of prisoners; jail conditions
Atrocities on SCs and STs
Bonded labour, child labour
Child marriage
Communal violence
Dowry death or its attempt; dowry demand
Abduction, rape and murder
Sexual harassment and indignity to women, exploitation of women
Numerous other complaints which cannot be categorized, have also been taken up.
What has been the focus of the work of the Commission?
Inquiring into complaints is one of the major activities of the Commission. Individual complaints have led the Commission to the generic issues involved in violations of human rights in several instances, allowing it to approach the relevant authorities for systemic improvements.
However, the Commission actively seeks out matters of relevance in human rights, either on its own initiative or when brought to its attention by civil society, the media, concerned individuals, or expert consultants. Its primary objective is to strengthen the extension of human rights to all sectors of society, particularly disadvantaged groups.
What are the major initiatives of Human Rights Commissions?
Civil Liberties.
Review of statutes such as the Terrorist and Disruptive Activities Act and the Prevention of Terrorism Bill (draught), 2000, were reviewed by the commission.
Human rights protection in regions of insurgency and terrorism.
Guidelines to prevent police officers from abusing their power to arrest.
Formation of Human Rights Cells in State/City Police Headquarters.
Measures to check custodial deaths, rape, and torture.
Commitment to the Convention Against Torture, as well as Additional Protocols to the Geneva Conventions.
The adoption of a refugee law for the country is now being discussed.
Systemic improvements in police, prisons, and other detention centers.
Take a visit to prisons, mental hospitals, and other such institutions.
Review of legislation, implementation of treaties, and international human rights instruments.
Economic, Social & Cultural Rights.
The abolition of bonded labour and child labour issues concerning the right to food.
Prevention of maternal anemia and congenital mental disabilities In the child.
Human Rights of Persons Affected by HIV/AIDS.
Public health as a human rights issue.
Rights of the vulnerable groups.
Rights of women and children, minorities, scheduled castes, and scheduled tribes.
Rights of people displaced by mega projects.
People affected by severe disasters such as the Orissa super-cyclone and the Gujarat earthquake.
Under a Supreme Court mandate, they monitor the functioning of the mental hospitals at Ranchi, Agra, and Gwalior, as well as the Agra Protection Home.
Action Research on Trafficking.
Promotion and protection of the rights of the disabled.
Rights of Denotified and Nomadic Tribes.
Welfare of the destitute widows of Vrindavan.
Elimination of manual scavenging
Promotion of human rights literacy and awareness in the educational system and in society more widely.
Human rights training and education for the military forces and police, as well as for public officials, civil society, and students.
Research through well-known academic institutions and NGOs on various issues relating to human rights.
Research on various human rights issues through well-known academic institutions and non-governmental organizations (NGOs).
Consultation with NGOs and experts/specialists on issues related to human rights.
Who is the current chairman of the National Human Rights Commission of India?
The current chairperson of the National Human Rights Commission is Shri Justice Arun Kumar Mishra, who entered office on June 2, 2021.
Where is the commission (NHRC) located and what are its contact numbers?
National Human Rights Commission
Manav Adhikar Bhawan Block-C,
GPO Complex, INA, New Delhi-110023
Facilitation Center (Madad): (011) 24651330, 24663333
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A contract is a legally binding agreement between two or more parties who get together for consideration and also comprises all the rights and obligations that the parties have to perform during the life of the contract. For the contract to be smooth and hassle-free without any confusion, many rounds of pre-contractual negotiation take place between parties before the final contract. A lot of discussions take place before the terms of the contract are finalized. And the parties put forward their intentions, objects, rights, obligations, the risk involved, and so forth. Although the pre-contractual instruments are not legally binding but could be made so at the instance of the parties. Pre-contractual instruments include a Memorandum of Understanding (MOU), a Non-Disclosure Agreement (NDA), and a Term Sheet. The article shall be discussing the meaning, purpose, and usage of a term sheet. It also includes the terms that should be included while drafting the term sheet.
What is a term sheet
A term sheet is a legal document that outlines the proposed terms and conditions to be adhered to by parties in a business agreement. A Term Sheet is a potential document as it acts as a guideline for lawyers to prepare the transactional document smoothly. Once a Term-Sheet is prepared, it could be used as a basis for many future transactions also.
Term Sheets are pre-financial documents and they are not time-specific. They are the previous stage of investment agreements like Shareholder Agreement, Share Purchase Agreement and so on. Most likely these Term Sheets turn into investment agreements and become legal. The Term Sheets are signed once both the parties agree to the terms mentioned in the Term Sheet and before the execution of the above-mentioned agreements.
Transactions where term sheets are used
Private equity( PE) and Venture capital (VC) transactions
PE and VC are significant financial documents where Term Sheets are used. When capital is invested in a company that is not listed is Private equity. And Venture Capital is when investment is done in start-ups or young entrepreneurs who have the potential for growth in the long term.
Merger & Acquisitions(M&A) transaction:
In these merger and acquisitions transactions or financial transactions, Term Sheet is used. Here the assets and the companies are consolidated through various financial transactions. These include mergers, acquisitions, consolidations, and tender offers.
Signing of term sheet
Term Sheet is more like a gentleman’s handshake rather than a legally binding agreement.
As the terms of the Term Sheet are non-binding as the parties have the option of going back into the document and altering the clauses mutually which was agreed upon previously.
Generally, some clauses in a Term Sheet are binding which include Confidentiality, Exclusivity, Dispute Resolution, Condition Precedent, Fees and Expenses and so on.
Amendment in term sheet
As a Term Sheet is considered a significant pre-contractual instrument and like any other legal document, a Term Sheet also has an option for amendment.
Term Sheet includes an amendment clause using which a Term Sheet can be amended.
The limitation in amending a Term Sheet is that the terms in the Term Sheet could be amended mutually before signing the final agreement.
Purpose of a term sheet
A term sheet is a detailed document prepared as a pre-contractual instrument for financial transactions. The parties to the Term Sheet (investors and company founders) can discuss and negotiate the terms mutually without the restriction of the document being rigid and binding. And it must be assured that the terms in a Term Sheet must be spelt out in detail so as to avoid any future confusion and dispute between the parties.
Points to be included in term sheets
Valuation
Company’s both pre-money valuation and post-money valuation must be included. That is, what is the valuation of the Company when the investor is investing in the Company. Example- For the purpose of the Proposed Transaction the pre-money valuation of the is INR 4 crore.
Proposed transaction
Proposed transaction is a very significant term to be included in a Term Sheet. It clearly states how the investor is proposing or intending to invest in the start-up. It mentions a closing date by which the investor would make the investment and if the investment would be made at one go or in portions The clause is written as below:
The investor proposes to make an investment of INR 10,00,0000 (the “Investment Amount”) into the Company in the manner set out hereunder. The parties will work towards achieving completion of the Proposed Transaction, i.e. remittance of the Investment Amount and issue of corresponding Subscription Shares(“Closing”) within the timeframe specified in the SHA.
Pre-emptive and pro-rata rights
Pro-rata rights are the rights of the investors in the Company which decide if the investors would be able to invest in the subsequent rounds of funding proportional to their ownership. Investors with pro-rata rights are eligible to invest in the subsequent round in an amount that allows them to maintain their ownership percentage.
Pre-emptive rights are rights that allow specific shareholders of a Company to buy extra shares before it is offered to anyone else by the Company.
Anti-dilution protection
Investors in a startup usually demand preferred shares in exchange for investments. It is a term that protects the interests of early investors of the Company. Preferred shares protect the rights of the investors. Anti-dilution protection clause safeguards the interests of the investors if in the future the shares of the Company are sold at a lower price to successive investors. It is done by adjusting the ratio at which the preferred shares convert into common shares. Thus the anti-dilution clause protects the value of the shares of the previous investors from being diluted.
Promoters’ lock-in or investor’s lock-in
The Promoter shall not be entitled to transfer the shares held by them in the Company, directly or indirectly for a period of ‘x’ years from the date of closing (lock-in period). The Promoters may however transfer their shares to a third party during the lock-in period subject to the prior written approval of the investors and right of the first refusal or tag-along right.
Promoters’ rights
The investors will have no right to terminate the employment of the Promoter for a period of ‘x’ years.
Right of first refusal
The right to the first refusal gives an investor the right to buy shares from the company before any third party is offered. In other words, subject to the Promoter’s lock-in period, in the event, that any of the Promoters or any other shareholders intend to sell all or part of their shareholding in the Company to a third party (“selling shareholder”), then such selling shareholder(s) shall first offer their shares, to the Investors (Non Selling Shareholders’) at the same price as they have offered to the third party. The Non-Selling shareholders, at their sole discretion, shall have the right to purchase shares in proportion to their inter-se shareholding in the Company.
Tag-along right and drag along right
Both the rights are for minority shareholders but are opposite to each other. In the case of tag-along rights, the minority shareholders in the company are provided with negotiating rights in
the event of a sale. On the other hand, in the case of drag along right the minority shareholders are forced to accept whatever decision has been negotiated by the majority shareholders.
How is the term sheet different from LOI
Most of the time, the words “Term Sheet” and “Letter of Intent” are confused and used as synonyms but they have the following differences:
LOI
Term Sheet
LOI includes all business transactions like lease deed, purchase, business and so on.
A Term Sheet includes only investment proposals
LOI are unilateral or proposals
Term Sheets are bilateral discussions
Here the primary intentions of parties are captured
Here the major points which are to be included in the financial transactions are negotiated
Terms to be included while drafting
Heading
Term Sheet For Investment( insert the name of the company)
Share Subscription Agreement and Shareholders’ Agreement
Conditions Precedent to Closing
Fees and expenses
Non-Competition, Non-Solicitation and Employment Agreements
Employee Share Option Plan
Key Person Insurance
Auditor
Governing Law
Arbitration
Conclusion
Term Sheets are considered one of the most significant pre-contractual instruments. It is generally non-binding in nature except for the clauses which are specifically stated that they are binding. Usually, the clauses like exclusivity and confidentiality clauses are considered to be binding. and especially outlines the basic terms and conditions for an investment agreement. Generally, the language and terms of the clauses communicate if the Term Sheet is intended to be binding. The Term Sheets are often used as a document where the terms are negotiated between the investors and founders as a precursor to the investment agreement. They are in most cases associated with startups. Terms like Term Sheet, Letter of Intent, and Memorandum of Understanding are often used interchangeably as they are similar documents and serve similar goals and most of the time contain similar information. But the three documents are not the same and are a little different from each other. The main purpose of a Term Sheet is it lays the groundwork and ensures that the parties involved in the investment transaction and in most of the terms are on the same page. And it is considered a good Term Sheet that is able to bring the investor’s and founder’s interests aligned and thus helps in the long run for everyone associated with the transaction.
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This article is written by Ms. Sushree Surekha Choudhury from KIIT School of Law. The article gives a detailed overview of the laws relating to indemnity under Section 124 of the Indian Contract Act (1872).
It has been published by Rachit Garg.
Table of Contents
Introduction
Indemnity, in its basic understanding, means to ‘compensate for loss or damage caused.’ It is a security against losses or damages that might occur by one party to another. Indemnity contracts or indemnity clauses in any contract denote an agreement between two parties – insurer and the insured where the insurer promises to pay compensation or make good the losses incurred by the insured, if any, in case of default, damage, or any other consequential loss. A contract made on this behalf is known as an ‘indemnity contract.’ A contract of indemnity is defined under Section 124 of the Indian Contract Act (1872).
Let us understand this with the help of an example. A and B are friends. C is B’s landowner, whose house B has rented. A and C entered into an agreement. A promises to C to pay a certain sum of Rs. 25,000/- which is B’s monthly rent payable to C, in case B makes a default in payment. Here, A became an insurer, and B his insured and the agreement entered into is a contract of indemnity. Now, C can recover from A the due amount in case B defaults. In other words, A shall indemnify B against C. A here becomes an indemnifier, and B is the indemnity holder.
Indemnity under English Law
Indemnity under English law has a wider ambit than under Indian laws. While Indian laws only cover acts or conduct of individuals, English law also gives recognition to unforeseeable events like accidents, fires or an act of God. English law of indemnity is governed primarily by one rule which states that you must be damnified before you claim to be indemnified. This means that, as per English law, there must be proof of injury or loss in order to be eligible to claim compensation as indemnity.
Essentials of an indemnity contract under English Law
The following conditions must be fulfilled before a person can claim for damages under an indemnity contract under English law:
There must be injury/loss/damage.
The indemnity holder must have adhered to all the necessary conditions and instructions given by the indemnifier.
An indemnity contract will also compensate for costs incurred in any legal proceedings arising out of the indemnity contract.
There were certain instances where justice was denied due to this precondition of proving injury. Thus, later on, the English court went on to relax these rules and also made room for cases where loss has not actually occurred, as per the facts and circumstances of the case. The concept of indemnity originated under English law in a landmark judgement of Adamson v. Jarvis (1827).
Facts of the case
In the instant case, Adamson was the plaintiff and Jarvis, the defendant. Adamson was an auctioneer who purchased livestock from Jarvis. He then sold the livestock after complying with all the instructions that he received from Jarvis. It was later found that Jarvis was not the real owner of the livestock that he sold. The real owner sued Adamson for damages. Adamson had to pay damages. Later, Adamson sued Jarvis, the defendant, to indemnify him for the losses he incurred.
Judgement of the Court
The Court held that, since Adamson followed all the instructions given by Jarvis, anything that went wrong due to following those instructions must be compensated by the one giving such instructions. Thus, Jarvis could be held liable and was bound to indemnify Adamson for the losses he incurred.
Expressed or implied contract of indemnity
In the landmark case of Dugdale v. Lovering (1875), the concept of an implied contract of indemnity was discussed.
Facts of the case
The plaintiff was in possession of some trucks that the defendant wanted to be delivered. Plaintiff and defendant had a telephonic conversation about the same in which the plaintiff expressed their want for indemnity. The plaintiff in clear words stated that they shall send the trucks only if the defendant agrees to indemnify in case of any losses incurred. The defendant, though, gave no direct answer to this but asked the plaintiff to send the trucks. The plaintiff presumed that the defendant agreed to indemnify as they asked for the trucks to be sent. It was later found that one K. P. Co. was the one who was entitled to those truck deliveries and not the defendants. K. P. Co. sued the plaintiff for damages and they had to pay. Now, the plaintiff sued the defendants to indemnify against losses incurred by him.
Judgement of the Court
It was held by the court that the defendants are liable to indemnify the plaintiff as the plaintiff clearly stated their precondition of sending the trucks as the promise to indemnify. Since this was communicated to the defendants and after which they asked to send the trucks, it is presumed that they also agreed with every precondition stated by the plaintiff. Thus, there was an implied promise to indemnify. This judgement was significant since it gave recognition to implied contracts of indemnity.
What does indemnity mean under Section 124 of Indian Contract Act
Section 124 of the Indian Contract Act (1872) defines a ‘contract of indemnity.’ It states that when one party promises to compensate another against the losses incurred by them due to anything done or omitted to be done by the promisor, a contract of indemnity is said to be made between the parties. The promisor comes to be known as the indemnifier, and the person to whom a promise is made is called the indemnity holder.
Since a contract of indemnity is a form of contract, it must satisfy all the conditions of a valid contract as specified under Section 10 of the Indian Contract Act. As per Section 10, a contract is said to be valid if it fulfils the following conditions:
It must be made with free consent.
There must be an offer and acceptance of that offer.
This must become a promise to do or not to do something.
This promise must be made on a lawful object.
This promise must be made under lawful consideration.
It must fulfil a legal obligation.
The contracting parties must be competent to contract (Section 11) –
Must be 18 years of age or above.
Must be of sound mind.
Must not be an undischarged insolvent.
Must not be disqualified by any law in force.
It must be made with good faith.
It must not be disqualified by law of the territory.
When is an indemnity contract made
An indemnity contract is made when one party promises to compensate another party for losses incurred by them. This loss may be due to the act of the promisor himself or any other person. If the person insured by a contract of indemnity has fulfilled all the necessary conditions for enforceability of the contract and that followed all the instructions, laws and rules governing the contract, he/she becomes eligible to be compensated.
An indemnity contract is usually made as a contingent contract. It is like an insurance which one party avails from another for the future probability of events, as security.
Parties to an indemnity contract
There are usually two parties to an indemnity contract. The one who promises to indemnify is known as the indemnifier. The person who is promised to be indemnified is called the indemnity holder. There is also a third party, the creditor or the owner. This is usually the person who has the legal right against the object in consideration of the contract and can also sue for damages incurred by him/her. Only then does a case of enforcing an indemnity contract come into the picture.
Essentials of an indemnity contract
Firstly, since the indemnity contract is a form of contract, as a result, it must fulfil all the ingredients of a valid contract as has been mentioned under Section 10 of the Act. It has been discussed above. Other essentials can be listed as follows:
Apart from Section 10 of the Indian Contract Act, other general provisions of the law of contract are also applicable to an indemnity contract.
There must be two parties to form a contract of indemnity. Those parties are called the indemnifier and the indemnified (or indemnity holder).
As a contract of indemnity is to compensate for “losses” incurred, such loss must have been caused. It is essential to prove the occurrence of loss or damage.
Such loss/damage must be that one that has been promised to be indemnified and not any other.
Such loss/damage must be caused due to the act/omission of the promisor or any other person.
The act under promise must be contracted as done by individuals. It does not include uncertain future events or events occurring without any human intervention, like an Act of God.
It can be a contract of insurance, except for life insurance. Insurance contracts are a kind of contract of indemnity.
The contract of indemnity must be absolute in nature. It must not be collateral to the happening or non-happening of certain events. An indemnity contract must be independent of all hindrances to its absoluteness.
It may be either an express or implied contract.
The conditions, promise, object, and every other prerequisite must be in a clear and concise manner.
Enforcement of a contract of indemnity
Enforcement of an indemnity contract can be made through the following steps:
The validity of an indemnity contract is established.
Proof of claim by the indemnity holder and good faith established.
After this, the contract can be enforced as per the terms and conditions mentioned and agreed upon by both parties.
It includes not only the amount of compensation as promised in the contract of indemnity but shall also include the extra costs incurred in maintaining a legal claim, adjudication, and any other extra amount that must be paid to the indemnity holder in regards to the terms of the contract.
The laws of enforceability have been shaped through a series of judicial pronouncements. It began with the case of Osmal Jamal & sons ltd. v. Gopal Purushottam (1728) where the right of indemnity was discussed for the first time. Currently, the courts have come a long way and there is a common consensus regarding indemnity laws in India. Through cases likeSecretary of State v. Bank of India (1939) and Gajanan Moreshwar Parelkar v. Moreshwar Madan Mantri (1942) [cases discussed below], the rights of indemnity holders have widened and the ambit increased. It places into consideration several other factors than only a loss or damage, it also sets absolute liability on indemnifiers as per the facts and circumstances of the case.
Rights of an indemnity-holder (Section 125 of Indian Contract Act)
As the contract of indemnity is made, the indemnity holder is vested with a set of rights with a prerequisite notion that the indemnity holder shall act diligently, in good faith, and with a bona fide intention. He/she must not be defrauding or attempting to defraud the indemnifier. Those rights are described under Section 125 of the Indian Contract Act. He has the right to recover from the indemnifier the following:
Recover damages
The indemnity holder can recover in the form of damages, all the sum that he has paid in compensation to any party against which he is entitled to be indemnified under the promise made under the indemnity contract.
The plaintiff was a minor and the defendant had agreed to manage property in his name on his behalf till he attained the age of majority. Such an agreement also involved a promise by the defendant to pay the interest of debts to another person who was the creditor. He was the indemnifier in this case to indemnify the debts taken by the minor. However, he failed to pay the amount promised. The plaintiff paid the sum due to the creditor when the creditor filed a lawsuit to recover it against the minor and his indemnifier as co-defendants. Now, the plaintiff (indemnity holder) sued the co-defendant (indemnifier) to recover damages.
Judgement of the Court
The Madras High Court observed that the defendant failed to fulfil his obligation to indemnify the plaintiff even though he had plenty of opportunities to do so. The plaintiff had to incur losses because of such a failure. He had to make payment to the creditor and also bear legal costs in defending his case. Hence, the court decided that the defendant is liable to pay the amount to the plaintiff for which he promised to indemnify. The plaintiff has a right to recover damages from his indemnifier.
Recover costs
The indemnity holder can recover the sums of money that he has spent in maintaining or defending a lawsuit against the claim of damages by a competent third party. An indemnity holder can recover this money if he/she has complied with all the instructions of the indemnifier, has acted in good faith, and has taken reasonable care as an ordinarily prudent man would have done.
In the instant case, a suit was filed by an assignor of a lease against the assignee. The defendant had promised to pay covenants on the lease but failed to do so. As a result of such failure and default, a suit was brought against the plaintiff by the administrator general, and also bore costs in defending the lawsuit which arose due to non-payment on the part of the indemnifier. Hence, the plaintiff brought a lawsuit against the defendant to recover damages and recover costs incurred by him.
Judgement of the Court
The Calcutta High Court observes that there is an implied obligation on the defendant to pay covenants on the lease in the instant case. Failure to do so has given rise to a good and valid cause of action from the plaintiff. The costs incurred by the plaintiff in paying to the administrator general and in defending the lawsuit have arisen properly and reasonably and due to the reasons of failure on part of the defendant. Hence, the plaintiff is entitled to recover costs and damages from the defendant and the defendant (indemnifier) is liable to pay.
Recover sums paid under compromise
If and when the indemnity holder pays a certain sum of money to compromise and end the litigation, such a sum can be recovered from the indemnifier. Preconditions for being eligible to recover such sums are:
The indemnity holder must have acted in good faith.
He should have deceived the indemnifier.
The indemnity holder must not have recovered or attempted to recover sums fraudulently.
He must have followed all instructions and directions as given by the indemnifier.
The claim under-recovery must be fair and reasonable.
In Anwar Khan v. Gulam Kasam (1919), the Court held that the sum of money demanded under damages to recover sums under the compromise, by the indemnity holder, must be fair and proportionate. The indemnifier is liable to indemnify only to the extent he has promised to indemnify and no further. If the amount asked for recovery is beyond what has been promised, the indemnifier can refuse to pay.
In Alla Venkataramana v. Palacherla Manqamma (1944), the Madras High Court stated the conditions under which the claims of the indemnity holder shall be validated. The conditions discussed by the Court were that:
The compromise must have been made in a bona fide manner.
The compromise must have been resolved amicably.
The bargain must not be deemed immoral.
Duties of an indemnity-holder
As the indemnity holder has been vested with enormous rights in the contract of indemnity, he has also been given certain duties that he is expected to perform and adhere to. These are implied and sometimes expressed in the contract so made. Some of the core duties can be stated as follows:
The most basic yet crucial duty of the indemnity holder is to comply with the terms and conditions of the contract of indemnity so made. If there is any contravention of the terms and conditions laid down in the contract by the indemnity holder, the indemnifier cannot be made liable to indemnify.
It is the duty of the indemnity holder to act prudently. He is expected to act diligently like a reasonable man with ordinary prudence would do. In case the indemnity holder does not act reasonably and with ordinary prudence, the indemnifier cannot be made liable to indemnify.
It is the duty of the indemnity holder to act with good faith. The indemnity holder must act with a bona fide intention and any malice would be considered a contravention. The intent is given importance here. If the indemnity holder malafidely tries to make the indemnifier pay for his losses while the losses are self-inflicted, the indemnifier will not be made liable to indemnity on grounds of mala fide intention by the indemnity holder.
It is a core duty of the indemnity holder to not cause loss or damage. The indemnity holder must act responsibly and must not incur the losses himself due to negligence. If the loss or damage occurs due to negligence of the indemnity holder or due to any other reason which would have ordinarily been avoided to save from loss or damage, the indemnifier would not be made liable to indemnify for such loss.
It is the prime duty of the indemnity holder to comply with the instructions of the promisor. If the indemnity holder, knowingly or unknowingly, fails to comply with instructions and follow the directions given to him by the promisor, then any loss or damage arising due to such non-compliance will be the burden of the indemnity holder. The indemnifier would no longer be liable to indemnify.
Thus, the duties of an indemnity holder can be essentially categorised as
Duty to act with prudence,
Duty to comply with instructions,
Duty to act in good faith, and
Duty to adhere to terms and conditions of the contract of indemnity.
Interestingly, the duties of the indemnity holder automatically become the rights of the indemnifier. His liability or non-liability is determined by the same. Though the rights of the indemnifier have not been codified under the laws of indemnity, they can be interpreted from the intention of the legislature and through judicial pronouncements.
Rights of an indemnifier
Although the Indian Contract Act is silent on the rights of an indemnifier, it can be understood through various judicial pronouncements. It was in Jaswant Singh v. The State (1965), that the rights of an indemnifier were discussed for the first time. It was held that the rights of an indemnifier under a contract of indemnity are the same as the rights of a surety under a contract of guarantee. Thus, an indemnifier is vested with the following rights:
When an indemnifier indemnifies for an indemnity holder, he steps into the shoes of the indemnity holder and gets access and rights over the property of the indemnity holder under the indemnity.
He is liable to indemnify the promisee only to the limit and for the amount of loss as has been set under the terms and clauses of the indemnity contract. After these claims are settled, he assumes the role of a creditor.
The indemnifier is eligible to sue third parties regarding the property that he has gained rights to, after fulfilling his obligations under the contract of indemnity. The indemnifier acquires absolute rights over the property. However, he attains such a right only after he has fulfilled his obligation against the contract made between him and the indemnified. He can therefore sue third parties over the property only after gaining absolute rights to do so, i.e., after fulfilling his obligations and settling the claim.
The indemnifier can be made liable to compensate for losses in such amounts and to such extent as have been agreed to in the contract. This right was upheld in V. M Rv. Ramaswami Chettiar v. R. Muthukrishna Iyer and Ors. (1966) where the Supreme Court decided that the indemnifier is liable to make good only up to the amount of Rs. 1236/-as has been mentioned in the contract of indemnity and no further. The same was upheld by the Supreme Court and the defendant’s appeal to recover more money was dismissed.
In certain cases, the indemnifier can exercise subrogation rights. It is the right that has been enjoyed by a surety in the case of a contract of guarantee. In a contract of guarantee, after the surety makes the payments and settles the claims of the creditor, he steps into the shoes of the creditor and can now recover such amounts from the principal debtor. Similarly, the indemnifier can exercise subrogation rights and act as a creditor to recover the monies he has paid as indemnity, in the form of money, or by assuming rights over property or in any other manner.
Duties of an indemnifier
The duties of an indemnifier are not particularly codified under Indian Contract Act but it is understood to be the same as the rights of the indemnity holder as is mentioned in Section 125 of the Indian Contract Act. Thus, the duties of an indemnifier can be stated as:
It is the primary duty of the indemnifier to abide by the rules and clauses of the indemnity contract.
The indemnifier must act in good faith with due care and diligence.
The indemnifier must act prudently and reasonably. He must act as a reasonable man of ordinary prudence would do and be vigilant to the terms of the contract so made.
The indemnifier must perform his part of the contract when needed to do so.
It is the duty of the indemnifier to pay the indemnity holder for all the damages that he might have suffered due to the non-payment of indemnity.
It is the duty of the indemnifier to pay all costs incurred by the indemnity holder due to a breach of contract by the indemnifier. If the indemnity holder has acted in good faith and has followed all directions given by the indemnifier, it becomes the duty of the indemnifier to compensate for his losses.
When the indemnity holder pays a certain sum of money for a compromise against a suit, it is the duty of the indemnifier to compensate the indemnity holder for all such sum of money spent by him under such compromise or arrangement.
Thus, it comes under the duty of the indemnifier to first adhere to the terms and conditions of the contract. If and when he fails to do so and the indemnity holder suffers a loss, it becomes the duty of the indemnifier to compensate for such damages and costs incurred by the indemnity holder and the sums payable under the amicable compromise, if any.
In Kali Charan v. Durga Kunwar and Ors. (1931), the Allahabad High Court held that it is a right of the indemnity holder to recover damages and costs from the indemnifier. Thus, it is also the duty of the indemnifier to pay for such damages and costs.
In Venkatarangaiya Appa Rao v. Varaprasada Rao Naidu (1921), the Madras High Court held that it is the duty of the indemnifier to indemnify or otherwise pay for damages, costs, and sums under compromise if all the prerequisites are met bonafide transaction, amicable settlement, and fair bargain.
In Bishal Chand Jain v. Chattur Sen (1966), the Allahabad High Court held that the duty of the indemnifier to indemnify applies only to the extent of agreed clauses of the contract of indemnity. In this case, when the indemnifier was asked to make subsequent payments which he had not contracted upon, the Court held that he could not be made liable to do so and was eligible to refuse to make such payments.
Difference between a contract of indemnity and a contract of guarantee
A contract of indemnity and a contract of guarantee look strikingly similar, but there is a conceptual difference, making the two distinct. Defined under Section 126 of the Indian Contract Act, when a person promises to another, to pay on behalf of another, in case of default, a contract of guarantee is said to be made between the promisor and promisee. The person who promises to pay and fulfil the promise or discharge the liability on behalf of another is called a ‘surety.’ The person on whose behalf the surety is given is known as the ‘principal debtor.’ The person for whom the guarantee is given is called the ‘creditor.’ The liability of the surety is secondary.
For instance, A promises to B that he will pay a sum of Rs. 20,000/- for goods that C has purchased from B in credit if C does not make the payment by the end of the month. Here, A is the surety, B is the creditor, and C is the principal debtor. Here, A’s obligation is secondary, which shall arise only if C makes a default.
In P. J. Rajjapan v. Associated Industries (1983), the guarantor (surety) had agreed to the contract of guarantee which he said he would sign later but never signed. When the situation came for him to fulfil his obligation as a surety, he tried to escape the obligation by saying that he never signed the contract thus, there is no contract made between the parties. The Kerala High Court stated that a contract of guarantee involves three types of agreements between the principal debtor and creditor, the surety and principal debtor, and the surety and creditor.
In an instance, where there is evidence proving the intention and involvement of the surety in this contract, the mere failure to put a signature on the contract does not render the agreement void. His promise to act as a surety and to later sign the contract all indicated that he agreed to the terms of the contract and to be bound by it. This is sufficient to ask for due performance. The presence of intention, knowledge, and an expressed promise is good enough to establish the existence of a contract. It is further pertinent to mention that both oral and written forms of a contract of the guarantee are legally recognised in India.
Mentioned below are the defining differences that distinguish a contract of indemnity from a contract of guarantee:
Criteria
Contract of Indemnity
Contract of Guarantee
Parties to contract
There are two parties to a contract of indemnity – indemnifier and indemnity holder.
There are three parties to a contract of guarantee – creditor, principal debtor, and the surety.
Nature of performance of contract
The indemnity holder claims the compensation directly from the indemnifier in case of loss or damage. There is a direct relationship.
The creditor recovers the amount defaulted by the principal debtor from the surety. The relationship is secondary and arises only in an event of default.
Number of contracts involved
There is only one contract- a contract of indemnity between the indemnifier and indemnity holder.
There are three contracts. One contract is between the surety and the principal debtor in which one party agrees to become the surety for another in a certain event or transaction. The second contract is between a creditor and principal debtor where the principal debtor promises to make payment to the creditor and also guarantees him that in case of default a surety would make good or discharge his liabilities. Finally, a third contract is made between the surety and the creditor where the surety promises to the creditor that he would discharge the liability in case the principal debtor makes a default.
Liability
It is primary in nature.
It is secondary in nature.
Basis of performance
A contract of indemnity is performed in case of loss or damage.
A contract of guarantee is performed in case of default in payment.
Manner of recovery
The indemnity holder recovers the sum payable from the indemnifier.
The recovery of money in case of a contract of guarantee is twofold. First, the creditor recovers the defaulted amount from the surety. Then, the surety acts as a creditor and is eligible to recover the amount from the principal debtor that he has paid on his behalf.
Landmark case laws under Section 124 of Indian Contract Act
Several judicial pronouncements have shaped the laws of indemnity over the years. Since the implementation of Section 124 of the Indian Contract Act, the cases mentioned below have helped in the growth of indemnity laws in India:
Osman Jamal & Sons Ltd. v. Gopal Purshotam (1928)
Facts of the case
In this case, the plaintiff is a company that acts as a commission agent for the defendant’s firm. The defendant’s firm sold certain hessian and gunnies with the help of the plaintiff and had promised the plaintiff to indemnify in case of occurrence of any loss or damage. The plaintiff brought the goods from one Maliram Ramjidas to supply them to the defendant’s firm. This time, the defendant’s firm was unable to make the deliveries and make payment. Due to this, Ramjidas had to sell those products at a price lower than the contracted price and sued the plaintiff to pay the balance amount. So, the plaintiff then asked the defendant firm to indemnify for this loss and also pay the commission amount as the plaintiff would have received under normal circumstances.
Judgement of the Court
The Calcutta High Court held that this is a case of expressed indemnity as the defendant had agreed to indemnify the plaintiff in case of loss or damage. Thus, the defendant’s firm must fulfil what was promised and indemnify the plaintiff.
Secretary of State v. Bank of India (1938)
Facts of the case
In this case, a woman named Gangabai was the indorser and holder of a promissory note worth Rs. 5000/- Her agent, Acharya, forged documents and endorsed them for value to the respondents. The respondents, in good faith, applied to the Public Debt Office to issue them a fresh note in exchange for the note indorsed by Acharya. When Gangabai came to know about this fraud, she sued the appellant (Secretary of State) for conversion and damages. The appellants brought an action against the respondent (Bank of India) for damages incurred by them due to following the respondent’s instructions. The Secretary of State sued to be indemnified.
Judgement of the Court
The Bombay High Court held that there was an implied indemnity arising between the parties. The court said that when a person does any act on the instructions of a third person and incurs losses due to that, the person who does the act under instructions is entitled to be indemnified by the one giving such instructions.
Gajanan Moreshwar Parelkar v. Moreshwar Madan Mantri (1942)
Facts of the case
In this case, the plaintiff leased his piece of land to BMC for 999 years. The defendant wanted to build on that piece of land, to which the plaintiff agreed. The defendant was in possession of the land while ownership was with the plaintiff. One Keshavdas Mohandas supplied construction materials. There became a due of Rs. 5000/- which the defendant could not pay. The defendant mortgaged the property with the principal amount and an interest rate of 10%, but he made a second default, and now the property was transferred to Mohandas. When the plaintiff came to know about this, he demanded the property back from the defendant, but the title deed was with Mohandas. The plaintiff now sued the defendant to indemnify and also for transfer of title deeds. The defendant contended that there has not been any loss or damage as specified under Section 124 therefore, the plaintiff cannot invoke Section 125.
Judgement of the Court
The Bombay High Court held that the rights of indemnity holders and laws of indemnity go beyond what is mentioned under Sections 124 and 125. In case the indemnity holder has incurred an absolute liability, the indemnifier becomes liable to pay it off. Thus, the plaintiff must be indemnified against the mortgage of his land and other charges.
Mohit Kumar Saha v. New India Assurance Co. (1996)
Facts of the case
In this case, the petitioner was a truck owner who had taken an insurance policy for his truck from the respondent’s company. The driver of the truck with goods loaded in it stole the truck after assaulting the petitioner’s father, who was present during the incident. The petitioner filed a complaint about the loss of the truck and injuries sustained by his father.
Judgement of the Court
The Calcutta High Court held that the insurance claim shall cover this loss. The insurance company must indemnify the plaintiff for the loss in full and no less. Insurance as a form of indemnity contract was recognized and laws under Section 124 and Section 125 were applied.
Lala Shanti Swarup v. Munshi Singh (1967)
Facts of the case
In this case, the respondent had mortgaged land to one Bansidhar and another Khub Chand for an amount of Rs. 12000/- The real owner of the land, later, sold this land to one Shanti Saran for Rs. 16000/- Shanti Saran agreed to pay whatever the due amount to Bansidhar and Khub Chand. Later, Shanti Saran failed to do so, due to which Bansidhar and Khub Chand brought a lawsuit for indemnity.
Judgement of the Court
The Supreme Court held that Shanti Saran promised to pay the amount, which he failed to do, and this brought losses to the vendor. Thus, he is liable to indemnify as per Section 124 of the Indian Contract Act.
Conclusion
A contract of indemnity, as defined under Section 124 of the Indian Contract Act gives rise to a legal relationship between two parties, namely, the indemnifier and the indemnity holder. While the rights of an indemnifier are not defined anywhere in the Indian Contract Act, the rights of an indemnity holder are wide as has been described under Section 125 of Indian Contract Act. The rights of an indemnifier become like those of a surety under a contract of guarantee. These indicate high similarities between a contract of indemnity and a contract of guarantee but the two are quite different from one another in terms of application and nature. Several judicial pronouncements have helped in shaping the laws relating to indemnity as it is today, so much so that the courts grant rights beyond which is mentioned under Section 125. Indemnity laws have been prevalent in India and across the world for over years now and have helped in preventing several fraudulent occurrences and provided justice to the injured. In this article, we have also tried to understand, in brief, about the contract of guarantee through relevant sections of the Indian Contract Act and judicial pronouncements.
Frequently Asked Questions (FAQs)
What is the difference between an indemnity and a guarantee?
Mentioned under Section 124 of the Indian Contract Act is a contract of indemnity which lets one party recover from another the losses incurred by him if the other party has promised to do so. It is different from a contract of guarantee as has been mentioned under Section 126 of the Indian Contract Act in a manner such that a contract of guarantee grants rights to a creditor to recover money from a surety in case his principal debtor makes a default in payment if there is a contract of guarantee made governing the same.
Does indemnity cover insurance?
Yes. A contract of indemnity covers all kinds of insurance except life insurance.
What are the rights of indemnity holders?
The rights of an indemnity holder are described under Section 125 of the Indian Contract Act. It grants rights such as the right to recover damages, and the right to recover money incurred in maintaining a lawsuit or compromise settlement for the object under an indemnity.
How many parties are involved in a contract of indemnity?
In a contract of indemnity, two parties are involved primarily. They are known as an indemnity holder and indemnifier.
How many parties are involved in a contract of guarantee?
A contract of guarantee is a contract between three parties, namely, the creditor, principal debtor, and surety. There are also three forms of contracts involving two of these parties in each, that together form the contract of guarantee.
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This article is written by Divya Raisharma, a law student at Government Law College, Mumbai. This is an exhaustive article on sedition law that covers all the essential aspects and recent developments on sedition. A comparison of sedition laws across various countries has also been done.
Sedition is an offence against the state, and it is covered in the Indian Penal Code as Section 124A. Sedition penalises any material which can bring hatred, contempt, or disaffection for the government and has the potential to incite violence or public disorder in the nation. Sedition is not said to be done when criticism is done to disapprove and alter measures or administrative actions of the government. It is a widely criticised and misused section, mainly used to crack down on dissent against the government. It is alleged to hinder the exercise of freedom of speech and expression by the people. There has been recent development towards its removal as an offence.
History of sedition
In the original act of the Indian Penal Code (IPC) of 1860, sedition was not present as an offence. It was the amendment of the year 1870 that introduced sedition to the Indian Penal Code. Sedition was a gag on the voices of freedom and independence in India. It was a weapon of law against Bal Gangadhar Tilak, Mahatma Gandhi, Bhagat Singh, Jawaharlal Nehru, and many others.
The section of sedition was followed word to word. Many were convicted for invoking ill-will against the government even if there was no violence followed by this. But the scenario changed when the Federal Court (the highest judicial authority in British India) in the case of Niharendu Dutt Majumdar v King Emperor (1942) interpreted sedition as an offence only when it incites public disorder or violence.
After a while, in the case of King Emperor v Sadashiv Narayan Bhalerao (1947), the Privy Council in Britain took up the issue of the interpretation of sedition. The Privy Council rejected the Federal Court’s interpretation. It was held that the application of sedition does not require incitement to public disorder or violence. This interpretation was followed in practice till the reign of the Britishers in India.
After Independence, the Constituent Assembly dropped sedition from the Constitution of India. This was due to KM Munshi. He proposed to remove sedition as a reasonable restriction on freedom of speech and expression as well.
In 1951, the first amendment to the Constitution limited the freedom of speech and expression by adding “public order” as a reasonable restriction in Article 19(2).
Later, the Indira Gandhi government made Section 124A a cognisable offence (where an arrest can be made without a warrant) by the Code of Criminal Procedure, 1973.
What is sedition
As per Section 124A of the Indian Penal Code, 1860, sedition is when a person brings or attempts to bring hatred or contempt, or which excites disaffection or attempts to do so towards the government of India by way of words (written or spoken), signs, visual representation, or any act.
As per explanation 1 of the section, the term “disaffection” includes disloyalty and all feelings of enmity. Enmity is hostility or ill will between persons.
With the judgment of the Supreme Court in Kedarnath Singh v. State of Bihar (1962),the offence of sedition is applicable only if it is accompanied by incitement or a call for violence. Hence, Section 124A is to be read with Kedarnath Singh’s judgment, and sedition will be applied only if it leads or is likely to lead to “public disorder” or “violence.”
Punishment for sedition
As per section 124A, punishment for sedition is to be one of the following:
Imprisonment for up to 3 years
Imprisonment for life
Imprisonment for life along with fine
Imprisonment for up to 3 years along with fine
Only fine
The decision regarding the quantum of punishment to be awarded to the convict is that of the judge presiding over the trial proceedings.
What constitutes sedition
Sedition can be summarized into the following points:
There must be words, written or spoken, signs, visual representation, or any such act;
Such an act should bring or attempts to bring hatred or contempt, or excites or attempts to excite disaffection;
Such hatred, contempt, or disaffection must be towards any government established by law in India; and
It must have led to the incitement of violence or public disorder.
Elements of sedition
Intention
The intention of the person is of grave importance. It makes or breaks the case. The intention of the person as a whole is examined, taking into account his speeches, the context, and the general drift. The desire harboured by the person accused must be to invoke the feeling of hatred, contempt, or disaffection in the people towards the government. This desire must be coupled with the intention to incite violence or public disorder. It is also important that the person knows that such an act or attempt will result in the said reaction. In sedition, the intention of the language used is punished, no matter its success. Hence, the person should have willingly done the act with the above-mentioned desire and knowledge.
Act
The act under the Section is the act of speaking or writing words, making signs or visual representations, or any other such act. Sedition can be done through any material.
For example,
Letter
Published article
Videography
Poster
Speech, etc.
It is important to note that publication of some kind is necessary to bring a case of sedition. Any other act may include the act of distribution, republication, or circulation of seditious material.
The intended act is done towards the government established by law in India
It is of grave importance that the intended act be done towards a government in India. When the government established by law is undermined and its continuity is threatened, the visible symbol of the state is in danger. The stability of the government is of grave importance. Any threat towards its stability and continuity is an offence against the State. This is when sedition comes into play.
Hence, if the act is done toward
Private person
Association
Government company
Political party
A foreign government, or
Officer of the state (including a soldier, sailor, or airman in the Army, Navy or Air Force).
It would not come under the offence of sedition.
Violence or public disorder
The incitement of violence or public disorder is a conditional element of sedition. It is necessary for the act of sedition to cause, or be likely to cause, violence or public disorder. There must be a reasonable link (nexus) connecting the alleged seditious material and the violence or disorder. A far-fetched assumption that the violence or public disorder could have been caused by the alleged seditious material is not enough for the conviction of the accused. It is the job of the prosecutor to prove the proximity of the link between the alleged seditious material and the incitement of violence or public disorder.
Exceptions to sedition
Explanations 2 and 3 set forth the exception to the offence of sedition, that is, comments expressing disapprobation of
Measures of the government with a view to obtaining their alteration by lawful means. (Explanation 2)
Administrative or other action of the government, provided that the comment doesn’t excite, or attempt to excite hatred, contempt, or disaffection. (Explanation 3)
As per Kedarnath Singh’s judgment, comments made under explanations 2 and 3 must not be made so as to incite public disorder or violence.
Explanation 2 of Section 124A
Elements of explanation 2 are:
A comment was made.
The said comment was disapproving of a measure of the government.
It was made with the view of obtaining the alteration of the government measures by lawful means.
The said comment must not lead to public disorder or violence. (Kedarnath Singh judgment)
If any disapproving comment was made towards a government measure, and it was made with the view of obtaining changes in such measures lawfully, then it is covered under explanation 2. Hence, a disapproving comment on the government’s financial policies with a view to starting a peaceful discourse with the government and obtaining their alteration would not constitute sedition.
Explanation 3 of Section 124A
Explanation 3 is a conditional exception. Here, a disapproving comment made on an administrative or other action of the government constitutes sedition only if it excites or attempts to excite hatred, contempt, or disaffection with the potential to cause public disorder or violence.
The immunity under explanation 3 is dependent on the following factors:
Whether the comment expressed disapproval of the government’s administrative or other such action;
Whether such comment, in fact, excited (or attempts to excite) hatred, contempt, or disaffection towards the government;
Whether these feelings can generate the inclination to cause public disorder by an act of violence (Kedarnath Singh judgment).
The exceptions to sedition protect bona fide criticism. As a result, an article on criticism of bills and policies of the government would not be held seditious.
As per Kedarnath Singh’s judgment, a person can say or write any such thing about the government, its actions, or its measures, as long as he does not incite or attempt to incite people to violence against the government of India.
Defences to a charge of sedition
That the person did not speak or write the words, or make the sign or representations, or did not do any other act in question; or
That he did not thereby bring or attempt to bring into hatred or contempt, or excite or attempt to excite disaffection; or
That such disaffection was not towards the Government of India; or
There was no incitement of public disorder or violence against the government of India.
How does sedition infringe freedom of speech and expression
Freedom of speech and expression is guaranteed to every citizen of India under Article 19 of the Indian Constitution subject to restrictions. Two of these reasonable restrictions are public order and incitement to an offence.
Taking this into regard, when the Supreme Court was deciding the constitutionality of sedition in Kedarnath Singh’s case, they took an interpretation of the law that says that the offence of sedition is to be followed by incitement to violence or public disorder. Due to this interpretation, it was held that sedition was constitutional and that it reasonably restricted freedom of speech and expression.
But, the practicality is far away from theory. Due to the vagueness of the Section with words such as “disaffection,” the authorities put charges of sedition on any speech that hurts their political agenda and draw an unintelligible link between the speech and the supposed violence that could have followed.
The infringement of freedom of speech and expression by sedition can be seen by the booking of students, stand-up comedians, young people, and others for freely criticizing the government.
Sedition: an outdated law
Sedition as a law in India was introduced by an amendment to the IPC during the reign of the Britishers. It showcased the colonial intention of curbing the Indian freedom movements, rebellions, and dissents against the British reign in India. The phrase “government established by law in India” was originally the phrase “government established by law in British India.’ Sedition was widely used to silence freedom fighters like Bal Gangadhar Tilak and Mahatma Gandhi by word of law. As per the interpretation of the Privy Council of Britain, it even covered cases where no violence or public disorder, or incitement to violence or public disorder, was present.
In a modern democracy, dissent and criticism are important to hold the government accountable to the public at large. Exercise of freedom of speech and expression is to be guaranteed by a democratic government, more so ever when it is exercised against the government itself. Sedition is ill-suited to the modern political landscape.
In present times, it is used to break political movements by slapping the section of sedition on the activists, as seen during the CAA (Citizenship Amendment Act) protests. It is used by the government as a tool for politics and to curb healthy dissent. The guidelines set by the Kedarnath case are not usually followed. Hence, Indian courts and many jurists have called for the removal of the colonial outdated law.
The legal history of sedition law
Tara Singh Gopi Chand v. The State (1951)
This was the first case challenging the constitutionality of sedition in independent India. Giving reference to the Ramesh Thapar case’s mention of sedition, the High Court accepted the Federal Court’s interpretation of sedition where incitement to violence or public disorder was necessary. The judgment held that since the restriction on freedom of speech and expression is restricted outside the scope of the reasonable restriction. The judgment held that sedition restricts freedom of speech and expression.
Sabir Raza v. The State (1955)
In the Sabir Raza case, the Allahabad High Court held that public order can not be passed off as a restriction on speech and expressions which excite disaffection towards the government. The Court also made an interpretation that a threat to the security of the state can be said to exist only when there is a threat to the system of the government. A mere threat to the person holding a position in government or an exciting feeling of hatred, contempt, or disaffection towards the system is not a threat to the security of the state. Hence, sedition was held to be unconstitutional.
Ram Nandan v. State of Uttar Pradesh (1959)
In the case against an agricultural labor activist, the Allahabad High Court held sedition to be unconstitutional. It was observed that restrictions on freedom of speech and expression could not be justified because of the possibility of public disorder. A democratic political ideology that is dissimilar to that of the ruling elite cannot be said to be a threat to the state.
Kedarnath Singh v. State of Bihar (1962)
The Supreme Court of India took up the case of constitutionality for the first time in this case. The Court, contrary to the judgments by the high courts, held sedition to be constitutional. But, the Court made a key addition to the law of sedition. Following the Federal Court’s interpretation, It held that sedition can only be valid if it intends to incite violence. Even the exceptions to the offense of sedition would be applicable only if they didn’t lead to public disorder by violence. The Court also published guidelines to be followed in the application of Section 124A.
Common Cause v. Union of India (2016)
The writ petition filed by the Common Cause NGO was disposed of by the bench headed by the Chief Justice of India. The court stated that the principles of Kedarnath were to be followed by the authorities. The court found no need to revisit the issue.
S.G Vombatkere v. Union of India (2022)
The Supreme Court of India has agreed to hear the matter of the constitutionality of sedition. The central government is currently in the process of re-examining the matter. The matter is currently on hold till the re-examination is completed. The court also stated that sedition is put on abeyance till the re-examination.
Sedition law in India
Many other laws are applied alongside sedition, or which have some elements of sedition in them. They are as follows:
Abetment to sedition
Abetment is applied under Section 107 of the Indian Penal Code (IPC). Abetment can be of any offence including sedition. Abetment to sedition is when a person:
Instigates someone to commit sedition, or
Engages in a conspiracy to commit it, or
Intentionally aids a person to commit sedition.
Punishment:
When a person abets sedition, the person who abetted would be liable to the punishment of imprisonment for up to 7 years in addition to a fine, even if sedition is not committed.
If the act of sedition causes hurt to anyone, then the punishment for the abettor is imprisonment for up to 14 years in addition to a fine.
When an abettor voluntarily conceals the existence of the design to commit sedition with the intention of facilitating the commission of sedition, punishment is
If the abettor is a public servant, imprisonment is up to 10 years.
In any other case,
If sedition is committed, punishable with imprisonment up to 7 years with a fine.
If sedition is not committed, it is punishable with imprisonment for 3 years with a fine.
Criminal Conspiracy to commit sedition
As per Section 120A of the Indian Penal Code (IPC), along with Section 124A, when two or more persons agree to do or cause to be done sedition, it is called criminal conspiracy to commit sedition. It is important that there either exists an agreement to commit sedition, or a circumstance where sedition is incidental to a legal agreement between the parties. The offence of criminal conspiracy can be applied only when there exists an agreement to break the law, or where some act is done towards the commission of sedition in the absence of an agreement.
Punishment as per Section 120B of the Indian Penal Code (IPC):
As per the Section, the punishment for criminal conspiracy for sedition is the same as the punishment for abetment of sedition.
When a person engages in a criminal conspiracy to commit sedition, the person would be liable to the punishment of imprisonment for up to 7 years, in addition to a fine, even if sedition is not committed.
If the act of sedition causes harm to anyone, then the punishment for the accused is imprisonment for up to 14 years in addition to a fine.
When a criminal conspirator voluntarily conceals the existence of the design to commit sedition with the intention of facilitating the commission of sedition, punishment is
If the criminal conspirator is a public servant, the imprisonment term is up to 10 years.
In any other case,
If sedition is committed, it is punishable with imprisonment of up to 7 years with a fine.
If sedition is not committed, it is punishable by imprisonment for 3 years with a fine.
Sedition done by several persons in furtherance of common intention
As per Section 34, when a criminal act is done by several persons in furtherance of the common intention of all, each person is liable for that act in the same manner as if it were done by him alone. This is the concept of constructive criminality.
Hence, when several persons commit sedition in furtherance of common intention, for example, the spread of violence, they all would be individually liable for sedition.
Statements conducing to public mischief
As per section 505(1)(b) and (c) of the Indian Penal Code, it is an offence to make, publish, or circulate any statement, rumour, or report –
With intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility; or
With intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community.
Hence,
Making, publishing, or circulation of a seditious material with the intent to cause violence or public disorder;
Making, publishing, or circulating any material with the intent to cause any section of public to commit sedition; or
Making, publishing, or circulating any seditious material with intent to incite any class to commit violence against another
would be covered under section 505(1)(b) and section 505(1)(c) with punishment as imprisonment of up to 3 years, or fine, or both.
Misuse of sedition laws in recent years
The section of sedition equates “the government of India” to “the nation of India“. This, in turn, causes strong-worded materials, though in the spirit of patriotism, to be labeled as anti-national. The section gags dissent against the government, no matter the truth it holds. Sedition is rampantly used by corrupt and dictatorial governments as a tool to assert and maintain their power.
Ambiguous words such as ‘disaffection’, ‘hatred’, and ‘contempt’ make sedition easier to manipulate by the authorities. Based on such ambiguous words, charge sheets are filed against a person and it takes years before the result of the trial comes out. Till then, the accused is detained with hardly any chance of bail as a respite. Even the conviction punishment for sedition is harsher than normal, that is, life imprisonment. This works as a perfect prevention and deterrence system toward dissent against the government.
As per the National Crime Records Bureau (NCRB) data for the year 2020, the number of cases registered in section 124A amounted to 73 with 0 convictions, and in the year 2019.
The number of cases registered is 93.
The number of charge sheets filed under section 124A amounted to 40.
Only one person was convicted of sedition.
Only 30 cases’ trial were completed.
The conviction rate under section 124A was 3.3%.
Some notable cases of misuse of sedition in recent times are:
Malayalam journalist Siddique Kappan was booked for sedition when he was proceeding to cover the Hathras gang rape case.
Three Kashmiri scholarship students were booked under sedition for allegedly celebrating the Pakistani cricket team’s win against India in the T20 World Cup.
Recent judicial developments regarding the removal of Section 124A from the India Penal Code
The Supreme Court of India has taken up once again the question of the constitutionality of sedition as an offence. It has ruled that Section 124A is to be kept in abeyance in the matter of S.G Vombatkere V. Union of India (2022). The top court has ruled that all new and pending trials, proceedings, and appeals are suspended, till the Center re-examines Section 124A.
The bench headed by the Chief Justice of India passed an order that,
All pending trials, appeals, and proceedings under Section 124A are suspended for now.
In cases where sedition is present with other sections, the proceedings of such cases are allowed if the court holds the opinion that the accused would not face a disadvantage.
If a new case is registered under Section 124A, the parties can approach the court of relief. Here, the courts are requested to judge, keeping in mind the abeyance of sedition by the Supreme Court and the clear stance of the Union government.
The government should refrain from registering any new cases, conducting investigations, and taking any coercive action under Section 124A.
Case laws on sedition
Vinod Dua vs. Union of India & Ors (2021).
Facts
Vinod Dua, a senior journalist, had his own YouTube show titled “The Vinod Dua Show.”
He made statements on the lack of testing facilities with the government and was alleged to have made false statements regarding the availability of PPE kits with a comment that there was no sufficient information on them.
He went on to state that the export of ventilators and sanitizers was stopped later than stated.
He also stated that the PM has garnered votes for election through acts of terrorism.
He talked about the major labour migration during the COVID-19 lockdown.
It was alleged that Vinod Dua made the statements with the intention of inciting panic, hatred, contempt, and disaffection followed by violence towards the government.
Issues raised
Whether the petitioner committed the offence of sedition under Section 124A by his comments?
Held
The Supreme Court, while quashing the charge of Section 124A observed that,
The statements made in the respected circumstances can at best be termed as an expression of disapprobation of the actions of the government and its functionaries so that the prevailing situation can be addressed quickly and efficiently. They were not made with the intention of inciting violence or public disorder. Hence, they would be covered as an exception to sedition.
The petitioner was within the permissible limits laid down in the decision of this Court in Kedar Nath Singh. It may be that certain factual details in the statement were not completely correct. However, considering the general drift of the YouTube show and all the statements as a whole, it cannot be said that the petitioner crossed the limits set out in the decision of this Court in Kedar Nath Singh.
State v Disha A. Ravi (2021)
Facts
Disha Ravi, a Bengaluru environmental activist, was named the editor of a toolkit made for international online support of the farmers’ protests in India.
The toolkit document was created by an organisation called the ‘Poetic Justice Foundation,’ a pro-Khalistan organization.
The State submitted that some of the content and links in the toolkit were objectionable.
The toolkit documents circulating on social media were alleged to be seditious in nature showing disaffection against the government.
The state submitted information about a Zoom meeting attended by Disha, Shantanu, and the co-founders of the PJF.
The state contended that the defendant and Shantanu were in touch through messaging apps.
Shantanu was present in New Delhi during the violent clash. And hence, it was alleged that Disha was in a conspiracy to incite violence in India with the perpetrators of the January 26, 2021 clash.
Issues raised
Whether the accused was involved in peaceful protest and dissent or she was actually involved in seditious activities?
Held
The court granted her bail and commented that
The citizens are the conscience keepers of the government in any democratic nation.
They cannot be put behind bars simply because they choose to disagree with the state’s policies.
The purpose of engagement with people of dubious credentials is important. Merely engaging is not relevant.
There was no direct link between the act of the defendant and the violence of January 26, 2021.
The right to seek a global audience without any geographical barriers to communication is included in Article 19.
Arun Jaitley v. The State of U.P. (2015)
Facts
Arun Jaitley is a senior supreme court lawyer.
The applicant wrote and posted a well-written critical article titled ‘NJAC Judgement-An Alternative View’ on his Facebook page.
The article was based on the Supreme Court judgment which set aside the act passed to replace the collegium system of judicial appointments on NJAC.
The judicial Magistrate took sou-moto cognizance and booked him under Section 124A and Section 505 of the IPC.
Issues raised
Whether the content of the article resulted in the commission of the offence of sedition under Section 124A?
Held
The Allahabad High Court quashed the magistrate’s order and commented that:
Using very strong words to criticise the measures of the government or acts of public officials is not sedition.
The article was not seditious. It only intended to exercise its freedom of speech with the view of striking a balance between the two pillars of the country.
Disrespect of the judiciary does not constitute the offence of sedition.
Sanskar Marathe vs The State of Maharashtra (2015)
Facts
Aseem Trivedi, a political cartoonist and social activist, displayed several cartoons at a public meeting in Mumbai.
He uploaded some of the cartoons online on a website called ‘Cartoons Against Corruption.’
He was accused of defaming Parliament, the Constitution of India, and the Ashok Emblem, and also of sedition under Section 124A.
A non-bailable warrant was issued by the Additional Metropolitan Magistrate.
The Metropolitan Magistrate ordered his release on bail.
It was decided to drop the charges of sedition registered against Aseem Trivedi.
Issued raised
What is the legal position of the invocation of Section 124A in a matter where the police invoked the charges of sedition when prima facie Aseem Trivedi was entitled to exercise his right in Article 19?
Held
The Public Interest Litigation was disposed of as the government issued guidelines to police personnel stating the pre-conditions to be fulfilled when invoking Section 124A. The court observed that:
Disloyalty to the government is not the same as commenting in strong words upon its measures or acts, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means.
Freedom of expression includes freedom of communication and the right to propagate or publish an opinion.
Open criticism of government policies and operations is not a ground for restricting expression.
The freedom of speech and expression is available to express indignation against corruption in the political system. This cannot be encroached upon when there is no incitement to violence or public disorder.
Queen-Empress v. Jogendra Chunder Bose (1891)
Facts
The Bengali newspaper, ‘Bangobasi’ criticised the Age of Consent Act and accused the British government of meddling with Hindu culture.
The proprietor, editor, manager, and printer of the newspaper were charged with sedition.
The identity of the author was anonymous.
Issues raised
Whether the article was published comes under the purview of sedition?
Whether the accused are calculated to create disaffection in the minds of readers?
Whether the accused intended to create such feeling by their circulation?
Held
As the jury was unable to come to a decision, a retrial was scheduled for the first sedition case in India. But since the accused issued an apology for the articles, the prosecution was terminated.
Disaffection and disapprobation are not synonymous.
Disaffection is any feeling contrary to affection. Disaffection is a lack of affection, in other words, dislike or hatred.
Disapprobation means simple disapproval. A person can disapprove and also have affection for the same thing.
Even a publisher can be held for sedition. Sedition is not restricted only to the writer of the material.
When words are calculated and intended to excite disaffection against the government, then it comes under sedition. To be followed by disturbance or disaffection, is not a requisite condition.
There is a difference between the government and the administration.
Sedition laws in other countries
Sedition laws in United States of America
Even the land of freedom has not shied away from curbing dissent using sedition law. In the face of the quasi-war with France, the Federalist government passed the Aliens and Sedition laws, aimed at French-sympathising aliens and non-citizens living in the United States of America. One of these series of laws was the Sedition Act. The sedition act of 1798 made it a crime for Americans to publish, speak, or print any false or malicious statement about the federal government. Under this, journalists for Democratic-Republicans were targeted, as press papers were the major political tools for political parties. This law was immensely unpopular with the public. As a result, the upcoming Republican administration expired the Sedition Act on March 3, 1801.
In the midst of World War I, the Government of America passed the Sedition Act of 1918. The Act made it illegal to incite disloyalty within the military; disloyalty towards the government, the Constitution, the military, or the flag; or supporting countries at war with America. This Act, however, was repealed by the U.S. Supreme Court.
During the reign of the King, sedition could be said to be synonymous with treason. The Statute of Westminster of 1275 said that the divine right of the King and the principles of feudal society were not to be questioned. Seditious libel was made equivalent to blasphemous libel, as the State and the Church were one and the same. The United Kingdom criminalised the act of sedition with the Sedition Act of 1661.
It is interesting to note that the United Kingdom, which is the basis of Indian law, has done away with sedition while India has not.
Sedition laws in Hong Kong
Britishers introduced the law of sedition by way of the Sedition Ordinance of 1938. The law, later on, became part of the Crime Ordinance of 1971. It was typically deployed to target the pro-China factions in British China. It criminalised seditious words, publication and possession of seditious material, and the commission of any act with seditious intent.
Currently, the scope of the offence of sedition has been narrowed down and it must be accompanied by the intention of causing violence or public disorder. However, the Chinese government has implemented a national security law in Hong Kong, which has faced huge resistance. Though the national security law covers various other offences such as treason, subversion, secession, etc., Law Scholar Simon Young says it has split up the sedition law into multiple discrete offences with harsher punishment.
Sedition laws in Russia
Russia has criminalized sedition in the name of treason and espionage. The Russian Criminal Code criminalized the acts done by
Russian citizen of
(a) disclosing state secrets
(b) rendering assistance to a foreign state, foreign organization, or their representative
in hostile activities detrimental to Russia’s security as treason.
Foreign national or a stateless person of
(a) transfer, collection, theft, or keeping for transferring the state secret to a foreign state, foreign organization, or their representative
(b) transfer or collection of other information under the order of a foreign intelligence service
in hostile activities detrimental to Russia’s security as espionage.
Recently, Russia has passed two bills that criminalise blatant disrespect of the state, its officials, and Russian society, and the sharing of false information of public interest, which is shared as fake news.
Conclusion
Sedition is a colonial law supporting the notion of “King is Supreme”. It has no place in a modern world with human liberties at its core. Sedition ought to be abolished to ensure the exercise of the right to dissent. Healthy dissent can contribute to the development of the nation, and hence, it must not be penalised. But sedition is just one axe in a toolshed. Even after the abolishing of the sedition law, the right to dissent would still be curbed by the misuse of UAPA, NSA, preventive detention laws, etc. It is necessary to foster an environment of dialogue and tolerance for different opinions in the nation. Only then would India be able to speak with its rightful voice.
Frequently Asked Questions (FAQs)
What is sedition?
When a person brings or attempts to bring hatred, contempt, or disaffection towards the government, such an act incites or is likely to incite violence or public disorder. It must be by way of words, signs, visual representation, or any such act.
What is the punishment for sedition?
Punishment for sedition is the following:
Imprisonment for up to 3 years, or
Imprisonment for life, or
Imprisonment for life along with a fine, or
Imprisonment for up to 3 years along with a fine, or
Only fine.
3. Why is sedition outdated?
Sedition is outdated because it represents colonial intent and robs people of their right to speech and dissent.
Is sedition abolished in India?
Sedition has not been abolished in India. Currently, it is put on hold while the matter of its abolishment is taken up by the Supreme Court.
Is sedition unconstitutional?
As per the Supreme Court of India’s past judgments, sedition is not unconstitutional.
Is sedition the only law that restricts the right to speech and expression
No, The fundamental right to speech and expression can be restricted for the following reasons:
Promoting enmity between different groups. (Section 153A)
Outraging religious feelings or insulting either religion or the religious beliefs of a class. (Section 295A)
Uttering any words, or making any sound, in the hearing of any person, or making a gesture, with the deliberate intention of wounding their religious feelings. (Section 298)
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Intellectual Property pertains to the creativity and innovation of the human mind who by using their intellect originates groundbreaking ideas in the fields of artistic and literary works, designs, inventions, names, symbols, etc. used in the business. It has been categorized into two components:-
Industrial Property – This refers to industrial designs, patents, trademarks, and geographical source indications.
Copyright – This includes artistic and literary works such as drawings, paintings, music and film works, novels, photographs, plays, sculptures, etc.
All the intellectual properties such as copyright, patent, trademark, industrial designs, and geographical indication have been given protection under the law. The purpose of protecting these intellectual properties provides a safeguard to the inventor to acquire acknowledgment for his work and procure monetary advantages. In other words, it is likely to secure replicating and encroachment of the inventor’s work. Thus, intellectual property aims at shaping the environment for the advancement and development of the growth of creativity and innovation.
Meaning of industrial designs
An industrial design is a conception or idea that defines the physical appearance of the product by adding stylistic features to it in the form of configuration, ornament, shape, or pattern to a finished article which is done through industrial processes.
The aesthetic feature of an article is an industrial design in a legal sense. The three-dimensional characteristics such as the form of an object, or two-dimensional features, such as designs, lines, or colour, maybe an industrial design.
“design” means only the features of shape, configuration, pattern, ornament, or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 or property mark as defined in section 479 of the Indian Penal Code or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957.
Thus, analyzing the definition of design, it consists of the following characteristics:-
It consists only of the features of design or the physical appearance of the product;
The features should include configuration, ornament, shape, or pattern only;
These features applied to an article by industrial processes may include chemical, manual, or mechanical means;
The finished article must have a visual representation and must be capable of being judged by merely looking at it;
There is no constructing mode or anything other than a mechanical appliance;
No trademarks or property marks are included in it.
Piracy of designs
Under the law, if the ‘copyright in a design’ has been infringed, it is known as “Piracy of Design”. In other words, if there is unauthorized use of designs or duplication of such designs, which is then, being used for commercial purpose, during the existence of such copyright, without having consent or license from the registered proprietor of the design, it shall be considered as an unlawful act (design piracy) also he is responsible for the damages.
If an article whose design is registered is used for sale employing fraudulent or obvious imitation of that design.
If an article whose design is registered is imported for sale without having the consent of the proprietor of the registered design.
If an article whose design is registered or such design has fraudulent or obvious imitation in it, has been published or exposed for sale.
Therefore, if any article or class of articles whose design has already been registered is used for sale by obvious or fraudulent imitation or being imported for sale without the consent of the proprietor of the registered design or such registered design is been published or exposed for sale having prior knowledge that it has obvious or fraudulent imitation will be termed as piracy or infringement of the registered design.
Fraudulent or obvious imitation
As discussed above, to constitute piracy of registered design, deceitful or apparent imitation has to be present for infringement of copyright in the design.
In a fraudulent imitation, the intention is to deceive the person and violate his rights knowingly by imitating his registered design. On the other hand, an obvious imitation means imitating a registered design by slightly adding modifications to it. Thus, this is to say that such imitation must constitute the exact duplication of the registered design to constitute piracy.
Remedies against piracy of designs
The inventor whose rights have been infringed due to the piracy of registered design is entitled to judicial remedies. According to Section 22(2) of the Industrial Designs Act, 2000, there can be 2 alternate remedies provided to the registered proprietor in the case of design piracy:
to pay to the registered proprietor of the design a sum not exceeding twenty-five thousand rupees recoverable as a contract debt, or
if the proprietor elects to bring a suit for the recovery of damages for any such contravention, and an injunction against the repetition thereof, to pay such damages as may be awarded and to be restrained by injunction accordingly:
Provided that the total sum recoverable in respect of any one design under clause (a) shall not exceed fifty thousand rupees:
Provided further that no suit or any other proceeding for relief under this subsection shall be instituted in any court below the court of District Judge.
Grounds of defence
To get relief under sub-section (2) of Section 22 of Designs Act, 2000 every ground will act as a defence when registration of a design may be cancelled under Section 19. Following are the grounds of defence:-
The design was registered before, in India; or
Such design was published at the time of registration in India or another nation; or
Such design is not a unique piece of work; or
Such design cannot be registered under the Act; or
Such design cannot be constituted as a design under Section 2(d).
International protection of industrial designs
TRIPS Agreement
TRIPS Agreement compels its parties for safeguarding innovative or unique industrial designs independently produced. The member says that patterns are neither new nor unique unless they differ materially from existing combinations of known design characteristics and this protection must not extend to designs that are technical or practical. TRIPS further requires members to provide the proprietor of a protected industrial design the right to restrict third parties from consenting to production, sale, or import of products bearing a design or containing a copy of it, or a duplicate of the design protected essentially, for those acts being made for business purposes. The minimum protection period granted to the owner should be 10 years under the TRIPS Agreement.
Internationally, apart from the TRIPS Agreement that compels WTO members to implement or update their legislative provisions so that the industrial designs are given minimal levels of protection, there are three more international treaties that offer the contracting states-general levels of protection. The Paris Industrial Property Protection Convention is the first significant international agreement to be agreed upon by the Member States providing general criteria of protection for industrial designs. The second important international agreement was the Hague Agreement on International Industrial Design Registration, which controls the worldwide system of protection managed by the WIPO for design registration. The Locarno agreement of 1979 defines the worldwide industrial design classification. Even if India is not a signatory to Hague Convention, but follows Locarno agreement-based International Classification for Industrial Designs, the Hague system of International Registration should be discussed to analyze industrial design protection according to the International IPR administration.
Hague system
The Hague system enables industrial design owners to protect the design in several countries by simply applying an application to the International Bureau of WIPO, which protects all the members of the WIPO design agreement. Currently, 58 countries are signatories to the Hague Convention, of which 41 are subject to the Geneva Act of 1999 to register international industrial design. In 2008, the European Union joined the Hague International Design Protection System which obliged all EU member states to preserve the designs at Hague. Additionally, a further Union of Countries that have joined the Hague system is The African Intellectual Property Organization (O.P.A.I) with sixteen states.
It streamlines the handling of an industrial design registration since later amendments were made and renovated by one procedure step by the International Bureau. The purpose of the Hague system is to provide users in the Member States with simpler and more economical design protection options. A further advantage of the Hague Agreement is that no domestic patent agent is necessary for getting protection in this jurisdiction. Moreover, all countries are obliged to accept applications whose procedures conform with The Hague Accord Practices but not necessarily with practice in their country.
Previous acts of Hague, the London Act, 1934, and Hague Act, 1960 gave relief to the design owners only after some procedural matters have been handled at the national level but in line with the 1999 Geneva Act, the international design registration protects entirely the applicant’s interest and suspends him from filing a separate national application. It provides the opportunity for industrial design protection in several states and inter-governmental organizations by filing a single international application. Therefore, the protection of an industrial design may be applied on an international level by way of the Hague Agreement, and no national application or prior registration is required.
Protection of industrial designs under the Indian Designs Act, 2000
In the British colonial period, the legislation of 1911 was revised many times, and after the Indian Independence Act was adopted in 2000, the law for the preservation of designs was consolidated, updated, and implemented; In India on 11 May 2001, it came into effect. Replacement of the previous 1911 legislation to give better protection and to promote design activity for the designs registered. The new Act of 2000 provides to the registered design owner an exclusive right to sell, license, assign and use a similar design in any products in India, the industrial design can be registered if new or original, if the design is a functional feature of shape, configuration, pattern or composition of lines and colours, which are applied by an industrial process or means either guide, mechanical or chemical, separate or combined, in two or three dimensions to any article or in both forms.
This Act requires India to implement a ‘first to file, first to receive’ approach which means, to avoid other individuals claiming rights on certain specific designs, that the design inventor or creator should submit the registration application as soon as feasible. A design is considered new if the same design is not publicly accessible to the public before the date of filing or if uniqueness is established globally in the application for registration in India.
The primary change brought about by the legislation was the removal of the concept of ‘design’ of artistic works, as defined in the Indian Copyright Act, 1957. The copyright law also excludes from the purview of the copyright law a new definition of ‘design which has significant differences in terms of the protection of works of art, any design recorded following the designs law.
The High Court of Delhi clarified this in Microfibers Inc. v. Girdhar Co. & Another, the works of art are excluded from the protection of designs as it is an artwork in itself in form of painting and also remarked that artistic work to make industrial use of the works is not omitted from section 2(d) of the Designs Act, 2000 and they needs to be registered to get protection. In this instance, the court indicated explicitly that exclusion of artistic work defined in Section 2(c) of the Copyright Act, 1957 from the definition of ‘design’ under Section 2(d) of the Designs Act, 2000 is made simply to exclude the essence of works of art like the painting of M.F. Hussain. Thus, the paintings, artists, and artworks seek explicitly to be exempt from the new act.
The Supreme Court of India decided on the registration and protection of designs as another significant issue in Bharat Glass Tube Ltd v. Gopal Glass Works Ltd. Gopal Glass Works (the respondents) have registered their designs and had the same certificate, and these designs began to be used in cooperation with a German company when the plaintiff had knowledge that their design was used, they moved to the Court. The design was made to be used in collaboration with a German company. The appellants said that the designs by the defendants were not innovative since they had been used by the German business since 1992 and already published in the United Kingdom Patent Office, so it has lost originality. When the issue was sent to the High Court on appeal; it supported the decision of the Calcutta High Court.
The new law changed the present act further by expanding the initial period of coverage from 5 years to 10 years, however in the event of design piracy; the individual breaching the design copyright shall be responsible for not more than 50,000 rupees for a maximum length of protection of fifteen years [Section 11]. The owner may also file a claim for damages and violation. The case for violation of registered designs cannot be brought before any court less than the District judge [Section 22]. To preserve and encourage industrial design in India the new Act is superior and more effective.
Case laws
Dabur India Limited v Rajesh Kumar & Others [2008 (37) PTC 227 (Del.)]
Facts of the case
The plaintiff marketed ‘Dabur Amla Hair Oil’ into bottles with a distinctive design, with a semicircular shoulder with a curved back and front panel that converged the shape and configuration of the bottle of the plaintiff was unique, new, and original and was registered in design No-17324 under the Designs Act. The green cap was likewise distinctive and it was also registered following the Designs Act. It is also argued that the bottles are printed on the bottom of the plaintiff’s trademark ‘Dabur’. The plaintiff alleges that they produce plastic bottles, imitate the plaintiff’s bottles, and also imprint the ‘Dabur’ mark on the bottom, and these bottles are sold by the defendant to ‘Dabur Amla Hair Oil’ counterfeiters. Therefore, both the defendant’s designs and the bottle cap are infringing.”
The case was fully heard and bottles of the complainant along with the defendant were put before the court for comparing and following the long arguments of the opposing parties.
Judgment
After examining the bottles, the Court initially noted that in the complaint, the plaintiff had made inaccurate averments that the defendants sold the bottles with the plaintiff’s trademark. The court found no bottle seized by the defendant to carry the trademark ‘Dabur’ on the base or anywhere else and in its report the Local Commissioner has also stated that seized bottles have not been embossed ‘Dabur’ by the accused so it is clear that the plaintiff did this to establish an infringement of the trademark.
A quick check on the plaintiff’s bottles might indicate that the bottles used by the complainant are typical bottles utilized by numerous other firms for the further commercialization of their hair oil, fixers, and liquid product. Plaintiff seemed to have no particular characteristic of the registered bottle as the design of the plaintiff had the complete bottle as the design and the plastic bottles used by the claimant are extremely common and do not have a particularly eye-catching design or form.
The Court further found that the plaintiff did not mention any particular originality in the design of the bottle, nor did the plaintiff mention any originality in the registration certificate, because similar designs are used by several leading firms long before the plaintiff registers this design.
Disney Enterprises Inc. v. Prime Housewares Ltd. (2014)
In the case of Disney Enterprises Inc. v. Prime House Wares Ltd. India and international registration of industrial designs came into dispute for the time being in the High Court of Delhi. In this case, Mumbai-based Prime Housewares Ltd. was manufacturing the characters of Disney such as Mickey-Mouse, Minnie-mouse, and Donald-duck. Disney filed a complaint in the case of trademark infringement with the primary argument that the trademark of the applicant is protected under Indian law, but not the designs. The Court handed down the order in favour of Disney over the trademark infringement action. The court also instructed the Indian company to supply Disney with every violating material, so it can be destroyed.
Britannia Industries Ltd. v. Sara Lee Bakery [AIR 2000 Mad 497]
Facts of the case
The plaintiff is a firm dedicated to manufacturing and commercialization of several foodstuffs, such as bread, biscuits, cupcakes, cakes, etc. and one of the Plaintiff’s goods is a biscuit called “Milk Bikis Milk Cream”. The biscuit of the plaintiff has a round shape on one side and a humorous face on the other. Between both cookies, there’s a cream filling, a round nose, and a smile with two teeth that are apparent and that both teeth are filled with cream. The uniqueness is the form and shape of the face of the cookie on the one hand and the flat cream on the other hand between the biscuits. The applicant is the registered owner and also possesses the ‘Britannia Milk Bikis Milk Cream’ copyright. The complainant filed the case to note that the defendant had launched the offending product as ‘Milk Wala’ which in all respects is comparable to the complainant’s product. Thus, the defendant’s action is a pirate against the design of the registered design, a breach of copyright, and transmission as of the plaintiff, as it is identical in its design.
Judgment
When considering the designs in the consumer’s eye and children, the Court found that it was evident that the primary characteristics of the two cookies were not very same, and there was thus no violation. The Court evaluated likewise the wrappings of competitor items and ruled that considerable differences exist and that no violation of copyright was found. In respect of passing-off, the Court held that the plaintiff had ‘Britannia’ on the biscuit wrapper, whereas the trademark by the defendant was ‘Nutrine’ and ‘Milkwala’ on the wrappers of its biscuits. The design and packaging characteristics of both the items are very different, and young customers can immediately see the differences.
M/s Videocon Industries Ltd v M/s Whirlpool of India Ltd. [MH/0639/2014]
Facts of the case
The complainant registered the design for its washing machines form and arrangement. Plaintiff’s designs are square on one side and rounded on the other, with a particular visual attraction. The plaintiff has shown their design to be so successful that they have achieved significant sales of the washing machine with the impugned design within a brief time. Later, the plaintiff saw that the defendant had begun to produce and commercialize washing machines of the same design, form, and configuration as the plaintiff. The washing equipment of the defendant had similarities to the design of the plaintiff. It was clear that the defendant had violated the design registered and did intentionally show the popularity of the distinguished design of the washing machine of the plaintiff. Within these circumstances, the plaintiff brought an action for a design violation and dismissal.
Judgment
It was decided by the court that the washing machine offered by the defendant, too, is recorded by the plaintiff with a characteristic boat design. The uniqueness of the design is the shape that appeals visually and has generated value in items that are not related to enhanced features but desired. The defendant has made no difference to his goods simply by putting some features, altering the location of the knobs, or adding colour. The testing of an eye-only judgment shows clearly that both machines are comparable and a case of violation is established.
To sustain the proceedings for dismissal, the Court also found that the person need not be actively involved and, since the opposing machines are comparable, the case of dismissal is resolved.
Conclusion
The registration of the Industrial Design shall protect the decorative or aesthetic aspects of the product, and shall provide the holder or owner of the registered design with exclusive rights against illegal use like the replication or copying without the consent of such person. The preservation of industrial designs contributes to economic growth which encourages industrial inventiveness. With the preceding explanation, it is evident that The Hague design registration system offers international vendors maximal benefits to gain registration and be protected by a single application within the Contracting States. It facilitates the registration and protection of designs made by an individual internationally straightforward and efficient. Although India isn’t a part of the Hague International Design Registration System, it provides more protection under the Designs Act of 2000 for industrial designs however, it gives protection to all contractual parties in the Hague system and offers great security to foreign traders in India and preferring International protection will be better within India.
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This article is written by Sambit Rath, a B.A LL.B student of Dr. Ram Manohar Lohiya National Law University, Lucknow. In this article, the author aims to provide all the necessary information about custodial violence by discussing the various laws dealing with it, landmark cases, the role of human rights organisations, and more.
It has been published by Rachit Garg.
Table of Contents
Introduction
Custodial violence is a term we all keep hearing now and then. Anyone with limited legal knowledge would be able to make out that this term means something negative. So what is custodial violence and why is it in the news so often? To answer why we hear or read about it so often, we need to understand what it means. Custodial violence is the term given to the inhuman treatment of individuals in custody by the police. This act isn’t something new, as it has been in existence for a very long time. But then why haven’t we been able to solve this problem? What are the various forms of custodial violence? Up until now, what steps have been taken by our country to solve this problem? All these questions are answered in this article.
What is custodial violence
According to the Chambers Dictionary, the condition of being held by the police, arrest, or imprisonment is called ‘custody’. Violence means the use of force by one person over another so as to cause injury to him. The injury may be physical, mental, or otherwise.
Custodial violence basically means torturing or inflicting violence on an individual or group of persons while in the custody of the police or judiciary. According to the Law Commission of India, crime by a public servant against the arrested or a detained person who is in custody amounts to custodial violence. Usually, custodial violence results in the death of the victim or trauma to the victim. It is important to note that the term custodial violence has not been defined under any law. Custodial violence includes illegal detention, wrongful arrest, humiliating suspects, extorting information under pressure, and physical, mental, and sexual violence.
Some of the statistics released by the National Human Rights Commission (NHRC), National Crime Records Bureau (NCRB), and National Campaign Against Torture (NCAT) are discussed below:
151 people died in police custody in the year 2021 as per NHRC.
1,569 deaths in judicial custody were recorded in the year 2020 by NHRC
55 deaths by suicide due to police torture were recorded in the year 2020 by NCAT
Torture of women in custody, custodial rape of women, and gang rape were also reported.
Types of custodial violence
The authorities come up with different types of violence for different circumstances for purposes like extracting information or abusing authority.
Physical violence-
This is the most common form of violence used by the police. This involves using physical force to cause bodily harm and exhaustion to the victim. In some instances, this form of custodial violence can cause the victim to fear immediate death.
Psychological violence-
The next type of custodial violence deals with the mental aspect of the victim. This involves depriving the victim of basic needs like food, water, sleep, or toilet thereby causing the victim to lose confidence and morale. Humiliation or threats to the dear ones of the victim can cause them mental agony.
Sexual violence-
Any sexual or attempt to obtain a sexual act by violence or coercion is called sexual violence. This includes rape, sodomy, etc.
Causes of custodial violence in India
There are various causes of custodial violence by the police:
One of the biggest causes can be attributed to the absence of an Anti-Torture law in the country.
Due to loopholes in the system, the policemen do not fear being caught in the act. This encourages them to continue with their violent methods of extracting information or to teach their enemies a lesson.
Lack of awareness among the public about their rights makes them easy victims. When victims are not aware of their rights, it gives the policemen the confidence to carry on with violent means to deal with people.
Lack of proper training also is another cause. The policemen are not properly trained to deal with suspects. Little attention is paid to their emotional intelligence which remains unchecked, thereby leading to them being violent easily.
Lastly, the huge responsibility on their shoulders, pressurises them to use faster methods to solve a case. Some policemen crack under this pressure and resort to violent means to get information quickly.
Indian laws dealing with custodial violence
The lawmakers have kept this possibility of custodial violence in mind while drafting laws that provide safeguards to citizens and place limits on the powers of the authorities. Let’s look at each one of these safeguards:
Article 20(1) of the Constitution: Article 20(1) of the Indian Constitution provides that, no person shall be convicted of any offence except for the violation of law in force at the time of the commission of the offence. No person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. This article thus stops the authorities from charging people with offences not in force at the time and also they can not subject them to a greater penalty.
Article 20(2) of the Constitution: Article 20(2) of the Indian Constitution provides that, no person shall be prosecuted and punished for the same offence more than once.
Article 20(3) of the Constitution: Article 20(3) of the Indian Constitution provides that no person shall be compelled to be a witness against himself. This stops the authorities from coercing the accused to provide evidence.
Article 21 of the Constitution: The ambit of this article is quite extensive. It states that no person can be deprived of life and liberty except according to the procedure established by law. Hence it guarantees to safeguard against any form of torture, assault, or injury.
Article 22 of the Constitution:Article 22(1) and Article 22(2) are there to ensure certain checks exist in law to prevent abuse of power by authorities. Article 22(1) provides that no person shall be arrested without being informed about the grounds of arrest nor shall he be denied access to a lawyer. Article 22(2) provides that every person who is arrested shall be produced before the magistrate within 24 hours of such arrest excluding the time taken for the journey from the police station to the magistrate.
The Code of Criminal Procedure (CrPC) 1973:Section 41 of the Code of Criminal Procedure, 1973 was Amended in 2009 to include safeguards under 41A, 41B, 41C, and 41D so that procedures for arrest and detention for investigation purposes have reasonable grounds and the procedures to be documented. Also, family members, friends, and the public to be informed of the arrest, and legal representation to be allowed for the arrested individual.
Section 163 of the CrPC prohibits the investigating officers from inducing, threatening, or promising under Section 24 of the Indian Evidence Act (1872). Section 164(4) of the CrPC provides that confessions be recorded and signed in a proper manner and confirmation by a magistrate that the confession has been made voluntarily. Section 49 states that more restraint than necessary cannot be exercised to prevent one’s escape.
Indian Penal Code (IPC) 1860: Section 220 provides for the punishment for an officer who maliciously confines any person.Section 330 of the IPC provides that whoever causes hurt to extract information or confession which may lead to detection of offence shall be liable to be punished with imprisonment which may extend to 7 years and a fine. Section 331 states the same about grievous hurt but with imprisonment which may extend to 10 years and a fine.Section 348 of the IPC prohibits wrongful confinement and any such confinement for extorting any confession or information for detecting crime. Such confinement is punishable with imprisonment of up to three years and also liable to a fine.
Indian Evidence Act 1872: Section 25 states that no confession made to a police officer can be used to prove any offence against the suspect. Section 26 makes confessions made during custody inadmissible unless made in the presence of a magistrate.
Police Act 1861: Section 29 of the Act provides that if a police personnel inflicts violence on a person in his custody, he shall be liable to a penalty not exceeding 3 months of pay or imprisonment not exceeding 3 months or both.
Role of a Magistrate
Article 22(2) provides that every arrested person has to be brought before the nearest Magistrate within 24 hours of arrest excluding the time taken to travel from the place of custody to the magistrate. Also, no one can be kept for more than 24 hours without the order of a magistrate. So the arrested person is brought before the Magistrate whose duty is to examine if the arrested person has been subjected to custodial violence. The arrested person is questioned regarding the same and the magistrate is required to inform him of his right to get medically checked. The magistrate has the duty to decide if the arrested person is to be sent to remand.
Since the Magistrate is the first stop where the arrested person is presented after arrest. It is also the first stop where the victims of custodial violence get the chance to be heard. Here, the role of the Magistrate becomes crucial in deciding the fate of a custodial violence victim. If the victim is not heard or examined properly, then sending him to remand would worsen his situation. Hence, the Magistrate should be vigilant and be proactive while dealing with cases of custodial violence and make necessary interventions to protect the rights of the arrested persons.
Recent instances of custodial violence
The most recent instance of custodial violence took place in the State of Tamil Nadu in the year 2020. Jayaraj and his son Fenix were picked up by the police for inquiry into their alleged violation of the Indian Government’s COVID-19 lockdown rules. They were sexually assaulted and tortured by the police which led to their deaths. The torture continued for 7 hours and the police staff took turns in beating the two. They were stripped naked which added to the brutality.
In another case, 4 men accused of raping and murdering a 27-year-old veterinarian were taken into custody. The news of rape had sparked a huge outrage all over the country. The police during the investigation, fired upon the accused leading to their death. This raised concerns about custodial violence and an inquiry was set up. A panel headed by former SC Judge V.S. Sirpurkar found that the police fired at the accused with an intention to cause death. The panel recommended filing murder charges against the 10 policemen responsible for it.
Recently Vikas Dubey, a gangster, was arrested for killing eight police personnel in Kanpur. While he was being transported the next day, the vehicle carrying him met with an accident and overturned. The police alleged that while a policeman was fixing a flat tire, Dubey snatched his gun and tried to flee. This provoked the police and he had to be shot. There have been several clues indicating that this was staged and that it was another case of custodial violence.
In the month of June this year, five policemen were booked for torturing a man suspected of a crime in Uttar Pradesh. The policemen reportedly inserted a stick inside his rectum and gave him multiple electric shocks. After realising that they had arrested the wrong person, they paid him Rs. 100 and let him go.
Landmark cases relating to custodial violence
There have been several judgements made by the Supreme Court where they have taken steps to curb police brutality or custodial violence.
Nilabati Behera vs. State of Orissa, 1993
Facts of the case
In this case, Suman Behera, the petitioner’s son, was arrested by the police and on the very next day, his dead body was found on the railway tracks with multiple injuries. The police claimed that the victim had escaped from the Police Station and was found dead on the railway tracks the next day.
Issues involved in the case
Whether the victim suffered injuries due to custodial violence.
Whether the police are liable for the death of the victim.
Judgement of the Court
The Supreme Court found that the injuries were inflicted on the victim while he was in custody, thereby indicating that he was subjected to custodial violence. The court held that providing compensation is the responsibility of the State and not the police and awarded a compensation of Rs. 1,55,000.
D.K. Basu vs. State of West Bengal, 1997
This case is important because the Supreme Court in this case recognised custodial violence and police brutality. It stated that custodial violence is an attack on the dignity of a human being. The court noted that enacting recommendations and policies have had no effect as a death in police custody is increasing at an increasing rate. In this case, the Supreme Court laid down 11 guidelines that are to be followed while making an arrest. These guidelines consist of various rights that are available to every arrested person.
The police personnel must bear name tags with their designations while making arrests or conducting an interrogation.
Arrest memo to be prepared and copy of it to be attested by a family member or a respectable person of the locality. It must also be signed by the arrestee and must include the date and time of the arrest.
In cases where a relative or family member of the arrestee is not present during the arrest, he is entitled to inform one friend or relative or other person having an interest in his welfare, of the arrest and location of detention.
Within 8-12 hours, the relative or friend of the arrestee must be informed of the time, place of arrest, and venue of custody if they live outside the district or town.
Person arrested to be made aware of his right to inform someone of his arrest.
An entry to be made in the diary of the place of detention, name of the friend who has been informed, and names and particulars of police officials in whose custody the arrestee is.
Major and minor injuries to be recorded at the time of arrest and to be signed by both the arrestee and the police officer. A copy of it is to be provided to the arrestee.
Medical examination by a doctor every 48 hours during the arrestee’s detention.
Copies of all documents are to be sent to the Magistrate.
Arrestees may be permitted to meet their lawyer during interrogation.
A police control room to be provided in all districts and arrests to be intimated within 12 hours to the control room.
Joginder Kumar vs. State of Uttar Pradesh, 1994
Facts of the case
In this case, the petitioner, an advocate, was illegally detained after being called for questioning by the police. After frequent inquiries by the petitioner’s family members about his whereabouts, the petitioner was taken to some undisclosed location. The police constantly lied about his whereabouts.
Issue involved in the case
Whether the police are guilty of illegally arresting the petitioner.
Judgement of the Court
The Supreme Court held that arresting someone without justification would make it illegal. It also stated that the police have been given certain powers but they cannot misuse them for illegal purposes.
Rudul Shah vs. State of Bihar, 1983
Facts of the case
In this case, Rudul Shah, the petitioner, was detained in prison for over 14 years after his acquittal. A writ of habeas corpus was filed demanding his immediate release. A plea was also made seeking compensation for his illegal detention.
Issue involved in the case
Whether the detention of the petitioner was justified or not.
Judgement of the Court
The Supreme Court held that the detention was wholly unjustified. It also stated that ensuring his release and not awarding compensation would be mere lip service to the petitioner’s fundamental right to liberty. It held that if an individual’s fundamental right is violated by the wrongful act of the State, then that individual is entitled to compensation. The Government of Bihar was ordered to pay a sum of Rs. 30,000 in addition to the Rs. 5000 paid by it.
Bills introduced to curb custodial violence
The Prevention of Torture Bill, 2010 was introduced to curb the problem of custodial violence. The objective of the proposed law was to provide punishment for torture inflicted by public servants or any person inflicting torture with the consent or acquiescence of any public servant. The bill had defined torture and had proposed a punishment of a minimum of 3 years and extended to 10 years in prison along with a fine for the perpetrators of this crime.
The bill was passed by the Lok Sabha on May 6, 2010. Rajya Sabha referred the Bill to a Select Committee which then proposed certain changes to the bill. However, the bill lapsed due to the dissolution of the 15th Lok Sabha.
In 2017 the bill was introduced as a private member bill in Rajya Sabha and in 2018, it was introduced in the same manner in Lok Sabha. The latter lapsed due to the dissolution of the 16th Lok sabha.
Role of NHRC in prevention of custodial violence
The National Human Rights Commission (NHRC) was set up on 12th October 1993. Its objective is to ensure better protection and promotion of human rights. It acts as a watchdog over the police and issues guidelines on the process to be followed in case of custodial deaths. It has been given powers that are equivalent to a civil court. One of its main features includes the ability to conduct suo motu inquiries. This ability somewhat acts as a deterrent. This is because, when the policemen are aware of the fact an organisation is actively keeping a tab on their malpractices, they refrain from continuing with such practices to avoid falling into trouble.
The guidelines issued by the committee include:
In cases of custodial deaths, a magisterial inquiry would be conducted.
The magistrate must visit the place of crime, note all relevant facts, record evidence and identify witnesses.
Issue of public notice to the witness.
An inquiry should include reasons for death, events leading to the death of the victim, suspects of the said crime, and medical treatment provided to the victim taken into account.
Recording of statements of family members, relatives, and witnesses.
A detailed report to be prepared on time.
Recent developments
Recently in 2020, the Supreme Court of India in the case of Paramvir Singh Saini v. Baljit Singh & Others SLP (Criminal) No. 3543 of 2020 directed the State governments to install CCTV cameras in the police station. The court also reiterated the 9 directions it issued to the State governments apart from the 11 it had issued in the year 1996. Some of the notable directions include:
State governments to install CCTV cameras in police stations in a phased manner.
Deployment of at least two women constables in police stations where women have been taken for interrogation.
Setting up of State Human Rights Commission (SHRC).
Filling up of vacancies in SHRC as and when they arise.
Setting up of Human Rights Courts.
The CCTV must have night vision and audio recording capability.
The recording should be preserved for a period of 18 months.
If implemented properly and quickly, this would help curb instances of custodial violence in the country.
Prohibition of custodial violence – the way forward
In order to curb cases of custodial violence there needs to be major changes in the system:
Body cams – Just like police in some foreign countries are required to wear body cams at all times, the police in India need to do the same. Body cams with all the requirements like audio recording, GPS tracking, etc. need to be made available as soon as possible as they would act as a deterrent for the police.
Even though the CCTV cameras are being installed in the police stations gradually, there has to be a proper procedure to ensure that the cameras work properly and are being checked on a regular basis. During interrogations, there has to be a higher level officer keeping a watch from the CCTV cameras.
Physiological-Physical-Medical tests need to be conducted periodically to ensure that all the police personnel are in the right state of mind to carry out their duties.
All the police stations must be made to put up posters which contain the rights of arrested persons. The instructions should be in English as well as in the language of that locality. This would ensure that the unaware people who are brought into custody get to know their rights and exercise it.
Awareness programs should be run by the government by making the Police its frontrunners.
Lastly, an Anti Torture law must be made as soon as possible containing strict punishments for the offenders. Some of the sources from which India can take inspiration include:
Section 2340A of Title 18, United States Code: It provides for the prohibition of torture including custodial torture. It applies to acts of torture outside the country. It aims to hold people of US nationality liable for torture inflicted upon anyone including victims of other countries. It also applies to foreign offenders residing in the country. Such wide provisions enable the justice system of the USA to hold a person liable for committing torture even if he is a foreign national. India must also make provisions such as this to give itself wide-reaching powers to hold the perpetrators liable.
Human Rights Act, 1998: In the United Kingdom, human rights are protected by this Act. Section 3 of the Act talks about the right to not be ill-treated. It clearly defines what constitutes ill-treatment and degrading treatment, what to do when these rights are breached, etc. Such clarity allows its justice system to deal with cases of custodial torture in a better way. India would benefit from a codified law dealing with custodial torture as it would enable the justice system to convict the perpetrators using well-established procedures and punishments.
United Nations Convention against Torture and other Cruel, Inhuman, and Degrading Treatment or Punishment: Even though India has been a signatory to this Treaty, it has still not ratified it. This Treaty laid down in detail the various methods the signatory countries must adopt in order to effectively deal with the crime of torture. The Prevention of Torture Bill, 2010 was a step in this direction. India can take inspiration from countries that have ratified this Treaty and make better legislation to protect people from torture, including custodial violence.
Implementation of Law Commission of India’s 273rd Report:
The Commission in the 273rd report focused on the “Implementation of ‘United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment’ through Legislation.” It made some important recommendations:
It suggested that the definition of torture should include inflicting injury, either intentionally or voluntarily, or even an attempt to cause such an injury which will include physical, mental or psychological injury.
The Commission prepared a draft “The Prevention of Torture Bill, 2017” which provides for punishment for torture, inhuman treatment inflicted by public servant on persons while in custody and protect the interest of victims, their compensations etc.
The Commission suggested the ratification of Convention Against Torture. This will aid the government in getting criminals extradited and ensure individuals’ right to life.
The CrPC and the Indian Evidence Act require amendments to incorporate payment of compensation and a provision in IE Act which would put the burden of proof on the police in case a person sustains injuries in custody.
It suggested stringent punishments for perpetrators of this heinous crime.
It also recommended a compensation policy for the victims and the power will lie with the courts to allocate justiciable compensation.
An effective mechanism must be put in place to protect the victims, complainants and witnesses against ill treatment and threats.
The commission believed that the State should own the responsibility for injuries caused by its agents and sovereign immunity should not override the rights given by the Constitution.
The implementation of these recommendations would help curb the menace of custodial violence by the authorities.
Conclusion
Custodial violence is indeed a disgraceful act against humans. It has been used by people having authority to get what they want without considering the immense trauma the victim has to face. Although international bodies and commissions have taken steps to curb this act, we are still far from our goal. In India, even though there are rights available to citizens, the cases of custodial violence keep on increasing. The Hon’ble Supreme Court has tried to fill the gap by pronouncing landmark judgements and laying down guidelines, but it still doesn’t seem enough. Some ways in which this problem could be solved further could be the enactment of the Prevention of Torture Bill, 2010, equipping officers with body cameras, physiological-physical-medical tests, and assessments of the investigating officers be undertaken every year, etc.
Frequently Asked Questions (FAQs)
What is custodial violence?
Custodial violence refers to brutality by the police on an accused person placed under custody.
What are the causes of custodial violence in India?
Lack of strict laws, lack of proper security of inmates, delay in prison reforms, lack of proper training, and high pressure on police to complete investigations quickly.
What are some other forms of custodial violence?
Apart from death, rape and torture are other forms of custodial violence.
Why is custodial violence a huge problem?
Between 2001 and 2020, 1888 custodial deaths were recorded and only 26 policemen were convicted, according to National Crime Records Bureau data. This shows that perpetrators of such crimes go unpunished.
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This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. This article explains human rights and its classification along with the scope of human rights in future.
It has been published by Rachit Garg.
Table of Contents
Introduction
The basic rights which are moral principles or norms set for standard human behaviour, protected by municipal or international law are called human rights. These are available to every human being irrespective of their age, caste, creed, gender, religion, race, origin or location. These are termed inalienable fundamental rights, inherent in by all human beings. They also impose an obligation on other human beings not to infringe on the human rights of any person. Also, according to John Locke’s theory of inalienable rights, individuals are born equal and with some basic natural rights which are inalienable and can never be taken away. These rights include right to life, liberty and property which is also recognized in fundamental rights guaranteed by a country to its citizens. The Universal Declaration of Human Rights (UDHR) deals with all the human rights made available to a person from birth. It is a milestone document defining every human right and was adopted by the UN General Assembly in 1948 containing 30 articles. These are universally protected by the United Nations Human Rights Council.
What are Human Rights
Human beings are described as rational beings and thus given certain basic rights since birth. These rights are inherent in all human beings as they become operative at the birth of a person. These rights govern the physical, moral, spiritual, and social welfare of a person. They are also known as fundamental rights, basic rights, inherent rights, natural rights, and birth rights.
Chief Justice of India, J.S. Verma rightly stated that “human dignity is the quintessence of human rights.” All rights which are essential for the protection and dignity of an individual and help him to develop his personality are termed human rights. (Maneka Gandhi v. Union of India, 1978) D.D. Basu defines human rights as the basic rights that every individual must have against the state or any other authority, irrespective of any consideration.
One of the achievements of contemporary international law is that it recognises human dignity and honour. This has also been reflected through various declarations and conventions adopted by the United Nations on human rights. The conventions have tried to protect the rights of individuals at a national level by incorporating provisions into the constitutions of the countries. Many non-governmental, regional, national and international level organisations work to bring cases of violation of human rights to light and try to prevent such occurrences.
Characteristics of Human rights
Human rights are universal in nature which means that they are given to every individual irrespective of his/her caste, creed, race, religion, nationality and place of birth.
These are inalienable rights. Many philosophers believe that these are natural rights given by God and cannot be taken away or changed by anyone.
These are indivisible and interdependent rights. If a government gives one right then it has to protect the other rights of its citizens. For example, it is the duty of government to protect the right of fair hearing and provide food, shelter and clean environment to its citizens in order to protect the right to life of its citizens.
They are inherent to each person and available since birth.
They are not lost if the man is not familiar with his rights or if he does not use his rights. For example if a person is not aware of his right to consult the advocate then it does not mean that his right is finished. It is then the duty of authorities to provide him with free legal aid or tell him his rights.
They protect the dignity and personality of humans. Rights like right to life, right to liberty, right against arbitrary arrest and punishment etc protect the dignity of a person.
Sources of Human Rights
International treaties
These are the most important sources of human rights. There are multiple treaties on human rights which are binding on the states who are party to such treaties. For example, the European Convention on Human Rights, the American Convention, the African Charter on Human Rights, and People’s Rights.
International customs
These rights have acquired the status of customary international law by their practice and, thus, are binding on all the states irrespective of their consent. Many of these rights are a part of customary international law and thus known as a source of human rights.
International instruments
There are several declarations, resolutions, and recommendations related to human rights that have been adopted by the United Nations as a source of such rights. Some of these are the Universal Declaration of Human Rights (1948), declarations adopted at the Tehran Conference (1968) and the Vienna Conference (1993).
Judicial decisions
The International Court of Justice serves as another important source of human rights by setting up precedents and decisions in various disputes and case laws relating to violations of human rights.
Human rights are inherent and interdependent on each other and so there are not many different kinds of human rights. All these rights are equally important and inherent in all human beings, irrespective of their age, sex, caste, creed, race, religion, location, or nationality. The Universal Declaration of Human Rights did not precisely categorise human rights but mentioned 2 kinds:
Civil and political rights
Economic, social, and cultural rights
Theoretical classification of human rights
Civil and political rights
The rights that protect the life and personal liberty of a person are called civil rights. They are necessary to maintain the dignity of a person. These include rights like the right to life, liberty and security of a person, the right to privacy, the right to own property, freedom of thought, religion and movement.
Political rights are such rights that allow a person to participate in governmental activities. These include rights like the right to vote and the right to be elected. The nature of such rights is different, but they are interrelated to each other. Both these rights are covered in the International Covenant on Civil and Political Rights.
These rights are also called first-generation rights and are derived from 17th and 18th-century theories related to the American, English, and French Revolutions. These form a part of negative rights because the government abstains from doing such activities or forming policies that violate these rights. The following civil and political rights are recognised in the declaration of human rights by the United Nations:
Right to life, personal liberty, and security (Article 3)
Some human rights are guaranteed to the citizens of the state through constitutional provisions and cannot be infringed upon at any cost, even by the state authorities. These are termed as fundamental rights. The expression ‘fundamental rights’ is stated in declarations and constitutional provisions of many states. The Virginia Declaration of 1776 states that men are free and independent and have certain inherent rights. The French Declaration of Rights of Man and Citizen, 1789 provides that men are born free and have equal rights. The Indian Constitution guarantees six fundamental rights to the citizens of the country. These are:
The history of human rights is rooted in ancient times and the philosophical concepts of natural law and thus, also termed natural rights. Plato was one of the first writers to give a standard ethical code of conduct. Aristotle opined that rights change as per the different kinds of circumstances faced by society from time to time. Since human rights are universally applicable to every person in the world it is similar to natural rights. Natural rights have been derived from natural law which opines that law must reflect moral reasoning and must be related with morals imbibed in a person or set by the society. On the other hand, positivism states that human rights are a result of enactments of statutes and orders by law which comes with various sanctions attached to it.
4. Moral rights
Human rights that determine the spiritual and moral conduct of a person are termed moral rights. They are primarily contained in moral rights as they highlight various moral values that cannot be highlighted by any set of institutional rights. They promote moral values like respect for everyone, brotherhood, secularism, protection of life, peace in society, etc. Human rights also put moral obligations on the state and people not to violate and infringe on the rights of other people. If done so, it will be punished as per the provisions of the set statute.
5. Legal rights
The rights that are recognised by the legal system of a country are called legal rights. The two essential elements of these rights are:
The holder of the right, and
A person bound by duty.
Rights and duties are correlated to each other. A person cannot have a right without any corresponding duty. A person having a right also has a duty not to violate another person’s rights. Human rights are given to every individual irrespective of any considerations, and the state has the corresponding duty to protect the rights of its citizens. Article 2 of the Universal Declaration of Human Rights lays down that it is the primary duty of the state to promote, protect, and implement all human rights through various measures and legislative provisions. The government of any state should pass any such laws which infringe on the rights of the people.
6. Economic rights, cultural Rights and social rights
These rights are also called freedoms and guarantee a person the minimum necessities of life. These are also included in the International Covenant on Economic, Social and Cultural Rights. These form a part of positive rights as the state is required to frame policies and provisions to implement such rights. These rights are based on the concept of social equality and are second-generation rights. These rights include the right to work, social security, physical and mental health, and education. The various economic, cultural, and social rights recognised by the Universal Declaration of Human Rights are as follows:
Freedom to participate in cultural life (Article 27)
Right to social and international order (Article 28)
In addition to the above rights, there is yet another kind of right called collective rights. These rights are enjoyed by individuals collectively and include the right to self-determination, physical protection of the group, and the prohibition of genocide.
Future of Human Rights
The roots to protect human rights can be traced back to the period of Babylonian laws as the king issued a certain set of ethical codes of conduct for its people called Hammurabi’s code. It included fair wages, protection of property, and charges to be proved during the trial for the person to be punished. Other such examples are Assyrian laws, Hittite laws, and Dharma of the Vedic period. Many philosophers recognise human rights as natural rights. Some of these are Plato, Aristotle, Cicero, etc. While Plato was the first to write a universal standard of conduct, Cicero, on the other hand, believed that these rights must be made customary and civil. With these, there was the implementation of human rights in various countries.
Greece gave its citizens freedom of speech, equality before the law, the right to vote and get elected and the right to trade. The Magna Carta of Great Britain was also implemented as a response to heavy taxes imposed on people in the country. It is also famous for introducing jury trials and their concept to the world. Like this, every country guaranteed to its citizens a certain set of fundamental rights through the constitution or legislative provisions.
With the advancement of technology, climate change, and developments in science, can we say these rights are enough to protect the life and liberty of individuals? These rights, though provided through legislative provisions along with an obligation on the state not to infringe upon such rights, are at times violated by various actions and steps of the authorities. Various punishments to the accused like death, torture in prison, harassment, use of third degree and scientific methods while investigation are a threat to his/her right to life and are debtable issues. The privacy of a person is violated by misuse of social media which also helps a person to intrude into one’s personal life through various means. Similarly, many other freedoms are violated by discrimination against people belonging to other nationality in a country.
Some of the human rights are not directly guaranteed in the constitution of a state as a fundamental but indirectly under the ambit of a particular right. For example, the right to privacy in the Indian Constitution is not a fundamental right purely but falls under the ambit of the right to life and personal liberty under Article 21. This is the reason that it is not taken seriously by the people and state and thus, is violated easily. Society is dynamic and, thus, demands change. With the change in society, there’s a need to change and refine human rights. Nowadays, there’s a need to include the right to the internet in human rights as it has become a part of everybody’s life. This right has also been recognized by the Indian Judiciary in the case of Anuradha Bhasin v. Union of India (2020). With the acceptance of the LGBTQ community in society, the focus should be made to recognise their rights with all seriousness to protect them from harassment and torture. All this shows that there is a way ahead and human rights need to be refined to meet the demands and needs of people in present society.
Conclusion
Human rights lay down the basis for fundamental rights which are guaranteed to the citizens of every country. These are the basic rights a person has from his birth till his death and are indivisible, universal and interdependent rights. These are mainly provided by the Universal Declaration of Human Rights, adopted by the United Nations. Every country has a commission to protect the human rights of its citizens along with fundamental rights under the constitution. For example, in India, the National Human Rights Commission (NHRC) at the national level and the State Human Rights Commission (SHRC) at the state level work to protect human rights and take on any dispute related to its infringement. However, with the advancement in technology and science, there’s a need to revise and refine these rights in order to meet the changes.
Frequently asked questions (FAQs)
What are human rights and where are they provided?
Human rights are defined as the minimum rights that every individual must have against the state or any other authority, irrespective of any consideration. These are provided in the Universal Declaration of Human Rights, adopted by the United Nations in 1948 and contain 30 articles.
How many types of human rights are provided in the UDHR?
The Universal Declaration of Human Rights did not precisely categorise human rights but mentioned 2 kinds:
Civil and political rights
Economic, social, and cultural rights
Human rights are inherent and interdependent on each other and so there are not many different kinds of human rights. All these rights are equally important and inherent in all human beings, irrespective of their age, sex, caste, creed, race, religion, location or nationality.
What are the characteristics of human rights?
The characteristics of human rights are:
Universal in nature.
Inalienable rights.
These are indivisible and interdependent rights.
They are inherent to each person and available since birth.
They are not lost if the man is not familiar with his rights or if he does not use his rights.
They protect the dignity and personality of humans.
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This article is written by Ms. Sushree Surekha Choudhury from KIIT School of Law. The article gives a detailed description of Article 365 of the Indian Constitution and the provisions therein.
Article 365 comes under Part XIX (Miscellaneous) of the Indian Constitution. The provisions of Article 365 are often overlooked. But it plays a crucial role in centre-state cooperation and coordination and gives importance to the constitutional machinery. Article 365 of the Constitution imposes the President’s rule on a state that fails to comply with the directions given to it by the union government. Even though the states enjoy autonomy and discretion in running their internal affairs and conducting the business of the state, there are certain circumstances when the union gives particular directions that must be adhered to by every state. When the state fails to adhere to such instructions, the President can impose a state emergency under Article 356 of the Constitution and impose President’s rule in the particular state. This article talks about the provisions of Article 365 and the manner in which it is implemented in India.
Centre-State relations
The Constitution of India and the division of powers among the centre and states therein have been divided into 3 lists: the State List, Union List, and the Concurrent List.
Under the State List, the states have the power to decide, make laws and execute them.
For items listed in the Union List, it is strictly the discretion of the Union government to make laws.
The concurrent list is a list where the states and the centre, both have decision-making powers, yet the ultimate discretion is of the state governments for their respective states.
To strike a balance between the discretionary powers given to state governments and the power of the union government to conduct the business of the entire nation, centre-state relations play a vital role and are divided into:
The states are thus under an obligation to adhere to the provisions of the Constitution and the laws made by Parliament. They have to perform their executive duties in a way that does not impede the union’s executive powers over that state. The State Governments are obliged to abide by the directions given by the Central Government on several aspects where the Central Government is empowered to give directions to states. These are mandatory provisions and the failure to comply with the same leads to Article 365 being invoked. When Article 365 is violated by a state, the President has the discretion to declare the President’s rule in that state under Article 356 of the Constitution. Thus, Article 365 and Article 356 are often read simultaneously.
Matters on which the centre can issue directions to states
As the centre is empowered by centre-state relations, it can thus issue directions to states in the following matters:
The centre can give directions for the construction and maintenance of roadways, railways, and other means of communication that hold national importance and things/places having military importance.
Directions on the maintenance of railways.
Directions to educational institutions for linguistic minority groups.
Directions and schemes for scheduled tribes in the states.
There can also be a situation of mutual delegation where the union can delegate its executive powers of a particular state to the state government and the state government can vest its powers on the union.
For instance, during the 2020 COVID-19 pandemic, the union government gave several mandatory directions that had to be followed by every state, including lockdown rules. In such situations, if any state does not adhere to the union’s directions, the President can term it as a contravention of Article 365 and contravention of constitutional machinery. Recently, in June 2022, the Central Government issued directions to five states – Tamil Nadu, Kerala, Telangana, Maharashtra, and Karnataka as the states saw a rapid rise in the number of COVID-19 cases. The Central Government directed governments of these states to take immediate vigilant steps and pre-emptive measures to prevent the increase in the spread of the infection. These states were strictly directed to take measures as directed by the Central Government and any failure would imply to the failure of the State Governments in complying with the directions of the Central Government and could lead to invoking Article 365
In the case of Rameshwar Oraon v. State of Bihar and Ors (1995)., the court observed that it is mandatory for the state governments to abide by and follow the directions given to them by the Union Government. This case spoke about the mandatoriness of the obligation of the state governments to comply with the directions given to them by the central government.
In State of Rajasthan and Ors. v. Union of India and Ors (1977)., the Supreme Court observed that the power of the Central Government to issue directions to State Governments under Article 256 can be used and justified if the Central Government is of the opinion that the State Government and the executive powers of the State Government are run in contravention of the Union laws.
It was observed in State of Karnataka v. Union of India and Ors (1978). that when the Central Government issues directions to State Governments and when it is done with an assumption of State executive contravening Central laws, the Central Government is regarded as a legal entity while issuing such directions.
Provisions of Article 365 of the Indian Constitution
Article 365 of the Constitution is an extension of the provisions of Article 356 of the Indian Constitution. President can impose emergency provisions under two situations:
A national emergency can be imposed by the President on the whole of India under Article 352 of the Constitution.
When Article 365 is violated by any state, the President can impose a state emergency under Article 356.
History of Article 365
Article 365 of the Constitution is a Part of the emergency powers of the President. Whenever the central government gives directions to state governments in any context as has been mentioned above, the state governments are bound to follow it. If the state government fails to comply with those directions, it is a violation of Article 365 by that state, and the President may impose Article 356 on that state and assume his rule. This provision thus vests enormous powers on the union executive by giving the President the power to dismiss a democratically elected government in a democracy.
Only two democracies in the world, India, and Pakistan have these provisions in their constitutions. Origins of these provisions can be traced back to the Government of India, 1935 when, both India and Pakistan adopted it. It was under Section 93 of the Government of India Act, 1935 that the governor was vested with powers to issue proclamations, such as:
When the Governor of a province deems that the government of that province is not being run according to the provisions of the Government of India Act (1935), he may declare proclamations under this section.
The Governor could thereby impose his rule in that province and declare that the province shall be governed under his power.
The Governor may assume all the powers vested to a body or authority for that province to himself.
The Governor may thereby suspend or dissolve any provincial body or authority that has been vested with powers earlier.
However, the Governor was not entitled to impose his rule on the functioning of the judiciary in that province.
Such a proclamation can only be revoked by him with a new proclamation.
The Governor may also alter the terms of such a proclamation.
Such a proclamation can be in place for a term period of 2 years until re-election.
Discretion under Article 365 of the Indian Constitution
Article 365 is a directory and discretionary by nature. It is not a mandated provision. Article 365 states that ‘it shall be lawful for the President to hold…’ this means, that when a situation of emergency arises in a state, due to the violation of Article 365, it is the discretion of the President to whether or not to proclaim an emergency in that state. The President is not bound to assume rule and jurisdiction in a state if it is believed to have failed to comply with the directions given by the union. The President shall do so if deemed necessary. Thus, it’s not an obligation but rather a discretion because the President can choose whether or not to assume rule in that state. The President assumes such a rule only if he is satisfied that it is necessary for the just and proper functioning of the state to do so. Since the imposition of the President’s rule shall imply that the government of the state can no longer run as per the provisions of the Constitution, the powers are restrictively exercised by the President. The President must give due consideration to all the factors affecting a situation where the state stands accused of either having failed to comply with the centre’s directions or of having violated the Constitution and all the possible reasons for such a situation to have arisen. The state government must be given a fair opportunity to be heard.
President’s rule
Article 365 leads to the implementation of the President’s rule in the state that has violated it. When the President’s rule is imposed in a state, the state government is thereby suspended and direct governance of the centre is given effect. The President’s rule in a state can stay in place for 6 months, and it can be revoked at any time at the will of the President. However, this term of 6 months can be extended up to 3 years in phases, if certain criteria are met.
The President of India can proclaim a State Emergency and impose the President’s rule in the state for either of the following reasons:
Due to external aggression,
Due to internal mismanagement, or
Due to the violation of the Indian Constitution.
The President’s rule under Article 365 via Article 356 is invoked under the third ground. The President of India can impose the President’s rule in a state by proclamation of an emergency under Article 365 due to a breakdown of constitutional machinery in a state or failure of the state to comply with the directions given by the Central Government.
Imposition of the President’s rule in a state
The President of India imposes his rule over a state when he is satisfied that such an imposition is needed and gives due consideration to all relevant factors that lead to a violation of the Constitution by that state. The President imposes his rule in a state when he is satisfied with the circumstances that it is expedient to do so. The President imposes his rule in the following manner:
The President of India imposes his rule on the advice of the Union Council of Ministers headed by the Prime Minister of India.
If the President is satisfied that the state cannot be run in accordance with the Indian Constitution, he imposes his rule over the state. This happens when the state government is running in accordance with the provisions of the Indian Constitution.
Another factor that can lead to the imposition of the President’s rule in a state is when the President is satisfied that the state government has not been able to elect a candidate as the Chief Minister for that state within the time period specified by the Governor of that state.
If the Chief Minister of the state loses the majority in the Houses of the State Legislature, it will lead to the dissolution of his government in the state. If the ruling party is first given a specified time period to regain the majority, and if it fails to do so, the President may impose his rule in that state.
If the ruling party loses the majority in the State Legislative Assembly, followed by a vote of no confidence, the President may declare the imposition of his rule in that state, after ordering the dismissal of the state government that lost the majority.
The President can also impose his rule in a state for a brief period of time if the state elections were withheld due to situations like natural disasters, epidemics, or war. The President in this situation continues to govern the state until re-elections are held and a new government is formed, after which the President can revoke his rule in that state.
Manner of imposition and duration of the President’s rule in a state
The steps of the procedure that are followed in the imposition of the President’s rule in a state are mentioned below:
First, the violation of Article 365 has to be proven for the imposition of the President’s rule in a state.
Such a situation has to be looked into, and the President has to be satisfied that invoking Article 356 is expedient.
The President, when satisfied, issues a proclamation of a State Emergency.
Such a proclamation to be implemented has to be approved by the Parliament of India.
It has to be approved by both the Houses of Parliament within two months of issuance.
In case the Lok Sabha is not in session or is dissolved, and the proclamation is approved by the Rajya Sabha, the proclamation continues till 30 days from the re Constitution of the Lok Sabha.
When the proclamation is approved by the Parliament, it can remain active for 6 months. This period can be further extended up to three years in phases of 6 months where approval has to be obtained from the Parliament in every phase. This 3-year extension limit was introduced through the 44th Constitutional Amendment Act (1978). Such an extension has to be backed by strong reasoning and justification. Before the 44th Constitutional Amendment Act, the maximum period up to which the President’s rule can be imposed was for one year.
Consequences of the President’s rule
Mentioned below are the consequences that follow after the implementation of the President’s rule in a state:
The governor of such a state is made the constitutional head of the state.
The Vidhan Sabha of such a state is either dissolved or prorogued.
The state is run by the central government and central administration.
The Election Commission is then required to conduct re-election for the formation of a new state government for the state within 6 months.
Though such imposition does not affect the general public of the state directly, it affects them in a way of disrupting public good since no major legal or administrative changes can be brought in the state.
No new policies can be formed during the President’s rule in a state.
No new laws can be made by passing a bill in the state legislature during the President’s rule in a state.
Pending public and state welfare policies remain pending during this period of the President’s rule.
Inter-relation between Article 365 and Article 356
Article 356 and Article 365 are interrelated in a manner that one cannot exist without the other. Their interrelationship, similarities, and differences can be seen as:
One cannot exist without the other. This is said because Article 356 is imposed for an infringement of Article 365 and Article 365 leads to invoking Article 356.
When a state is guilty of not following the directions issued by the Central Government, or when the State Government has violated the provisions of the Indian Constitution; Article 365 becomes applicable.
If there arises a situation where the Central Government deems it expedient to impose the President’s rule in a state, due to the breakdown of constitutional machinery or any other reason, the Central Government can order dismissal of the government of that state and thereby impose the President’s rule in that state.
Article 365 is a prerequisite for invoking Article 356. Article 365 is regarded as an extension of Article 356. The President of India can impose the provisions of Article 356 on a state on either of the two grounds mentioned in Article 365.
Both Article 356 and Article 365 are discretionary in nature. This means that the President is not mandated to impose these articles on a state. The President does so, at his will and discretion, after giving due consideration to all relevant factors leading to invoking the articles.
Both Article 356 and Article 365 are invoked in extreme situations and not otherwise. Careful scrutiny and inquiry are conducted to check the gravity of the contravention and it is only then if the situation demands the implementation of the President’s rule and dismissal of a government, that it is done so.
Article 365 comes first in the procedural aspect. After due consideration and inquiry is made under Article 365 and when the President is satisfied that Article 365 is infringed, then the President imposes Article 356. Thus, Article 365 is the procedure to be followed before making a declaration under Article 356.
Instances where Article 365 of the Indian Constitution was invoked in India
There have been several instances where the President of India imposed the President’s rule over a state in violation of Article 365 of the Constitution. Instances of implementation of the President’s rule in states for the breakdown of constitutional machinery are as follows:
President’s rule was imposed for the first time in Punjab in 1951 when the Pandit Jawaharlal Nehru government suspended Gopi Chand Bhargava’s ministry in the state.
In 2001, Manipur State Government, which was formed just a year ago, was suspended on allegations of horse-trading, which was followed by a vote of no confidence.
In 2007, President’s rule was imposed in Karnataka since the ruling party lost the majority.
In 2008, the Jammu and Kashmir state government lost the majority, and it was followed by protests in the state. Thus, the President’s rule was imposed.
In 2014, the Maharashtra government was dissolved due to separating ties with its allies. As a result, the President’s rule was imposed on the state.
Due to the split and consequent failure of the ruling party, President’s rule was imposed twice in Uttar Pradesh in 2016.
Landmark judgments on Article 365 of the Indian Constitution
Mentioned below are landmark judgments under Article 365 of the Indian Constitution:
S.R. Bommai v. Union of India
It was in 1988-89 when S.R. Bommai was the Chief Minister representing the Janata Dal in Karnataka. In 1989, his government was dismissed on grounds of losing the majority due to defective governance. However, the S.R. Bommai government never got an opportunity to test their majority in the State Legislative Assembly as it was not approved by the then Governor of the state and reasons were not specified for such denial. Such a move was considered arbitrarily and the President’s rule was imposed in the state due to the dismissal of his government. Thus, S.R. Bommai moved to court seeking redressal.
After years of litigation, in 1994, the Supreme Court gave this landmark judgment with a 9 bench judge that the dismissal of the S.R. Bommai government was arbitrary. The Supreme Court ordered the invalidation of such dismissal and thereby laid down certain reasonable restrictions to put an end to such arbitrary use of power vested under Article 356 of the Indian Constitution. Those directions were:
The majority enjoyed by the Council of Ministers must be tested on the grounds of the House.
The centre must give a warning to the state before imposing the President’s rule in the state and also give a one-week time to respond.
The President must not dissolve the Assembly in such a state or take action under Article 356(3) unless it is expedient to do so.
Article 356 can only be invoked for the breakdown of constitutional machinery as under Article 365 and not otherwise.
Such implementation shall be done reasonably, with due consideration to all necessary factors.
This was one landmark judgment that established the basis of Article 365 and its implementation under Article 356. The exemplary case and the guidelines stated therein have been followed ever since.
The Andhra Pradesh government case [CM Jagan Mohan Reddy v. the judges (Andhra Pradesh High Court)]
In 2020, the Andhra Pradesh High Court took suo moto cognizance to conduct an inquiry into the breakdown of constitutional machinery by the Andhra Pradesh government. The Governor was of the opinion that the government needed to be dismissed and the President’s rule should be implemented. The case reached the Supreme Court of India where it was observed that the Andhra Pradesh High Court made a case of judicial overreach and it was arbitral. The Apex Court stayed the order of the High Court and stated it was a misuse of power granted under the Indian Constitution and a breach of the doctrine of Basic Structure of the Indian Constitution.
Conclusion
Centre-state relations are a fundamental feature of democracy. The coordination and cooperation between the centre and states help in the smooth functioning of the nation. The powers vested to the President under Article 365 are extraordinary powers and have to be exercised reasonably and as a last resort. Whenever the President of India suspends a state government under Article 365 for failure to comply with the central government’s directions and imposes a rule of the central government in that state, several consequences follow, such as dissolution or prorogation of the Vidhan Sabha in the state, an indefinite pause on policy-making, taking decisions and implementation of new laws in the state, etc.
Article 365 is an extension of the main provision of the imposition of the President’s rule, which is mentioned under Article 356 of the Indian Constitution. These articles are interrelated and are needed to be read together. When a state is held liable to contravene the provisions of Article 365, the President imposes his rule in that state by proclaiming a State Emergency in that state and dissolving the ruling government under Article 356. Article 365 is highly debated by policymakers and lawmakers as it is being misused as a tool to meet political agendas and corrupt reasons rather than an actual breakdown of constitutional machinery. The several incidents of implementation have been indicative of the same. Only time will tell how constitutionally valid the article is and if it is meant to stay.
Frequently Asked Questions (FAQs)
What is Article 365?
Article 365 of the Indian Constitution confers powers on the President of India to resume his rule in a state. It is when a state fails to comply with directions given to it by the central government or is stated to have violated constitutional machinery that Article 365 is invoked. When Article 365 is invoked, the President proclaims a situation of emergency in a state under Article 356.
What is the difference between Article 365 and Article 356?
Article 365 is when a state is held to have violated the constitutional machinery by not following the directions given to states by the union government under certain circumstances. When Article 365 is believed to have been breached, the President is entitled to proclaim an emergency in that state under Article 356.
How long can the President’s rule be imposed in a state?
A President’s rule can be imposed for 6 months. It can be further extended to a maximum of up to 3 years, in phases, for reasons to be stated and allowed under the Constitution of India.
What is the nature of Article 365?
The President’s rule for violation of Article 365 is discretionary. It is not mandatory in nature, meaning the President is not bound to impose rule in a state for every believed breakdown of constitutional machinery. It is thus, the discretion of the President to impose Article 365 in a state.
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In the majority of the countries, even in this modern era, people are still suffering from the lengthy procedure of litigation. People have been dissatisfied with the highly technical, time-consuming, complex, and expensive justice dispensation by courts across the globe. This has led towards the avenue of the ADR (or Alternative Dispute Resolution) system, which includes procedures such as negotiation, conciliation, mediation, arbitration, and a variety of hybrid procedures. The advancement of information and communication technology helps people to settle business deals and resolve their disputes while they’re sitting on opposite sides of the globe.
The ADR method aims to provide speedy and affordable justice by encouraging disputants to reach a negotiated agreement with minimal external assistance. It refers to a set of dispute resolution techniques that assist disputants in reaching an agreement without going to court or litigating the subject. These strategies frequently involve a third party who assists in the resolution of disagreements among the disputants. It provides alternate dispute resolution choices though it is not designed to replace litigation. This article provides a comparative study on the existing Alternate Dispute Resolution framework pertaining in Dubai and India and thereby attempting to substantiate the relevance of ADR in the present period where nuances of disputes ranging from human to commercial evolve to newer and more complex avenues at an unimaginable pace.
ADR and their significance
Litigation is a lengthy procedure and its functioning is not covered by confidentiality. Whereas there are many advantages to Alternate dispute resolution over litigation. Every party to the dispute seeks speedy relief and it can be delivered through ADR mechanisms. Moreover, it is a process that gives priority to creative, business-driven solutions. It helps to save substantial costs and gives access to trained neutral experts. Most of the time the verdict from the court’s side is often rigid, the ADR system offers flexibility to the parties to adopt the process of their needs, and the procedure employed is informal. Once a dispute is taken into court then it’s in Public and it always brings loss to the parties in dispute. Here the ADR system can ensure privacy and confidentiality.
Business relationships are preserved. Even after the conflict was resolved, this kind of dispute settlement maintained the disputants’’ pleasant connection. Co-existential justice has also been a big part of ADR approaches. It provides the Indian judiciary with scientifically designed tools that help to reduce the strain on the courts. Arbitration, conciliation, mediation, negotiation, and Lok Adalat are all forms of alternative dispute resolution. Negotiation is defined as self-counseling between parties to resolve a conflict, although it is not recognized by law in India.
The goal of ADR is to promote social, economic, and political justice while maintaining the society’s integrity, as stated in the preamble. Articles 14 and 21, of the constitution of India, deal with equality before the law and the right to life and personal liberty, respectively, which are also foundations of ADR. It also aims to promote equal justice and free legal aid under Article 39-A of the State Policy Directive Principles (DPSP). In the last three years, Lok Adalat has disposed of more than 50 lakh cases annually on average. However, there appears to be a dearth of understanding regarding these mechanisms’’ existence.
Types of ADR
Arbitration
The disagreement is brought before an arbitral tribunal, which renders a ruling (an “award”) that is mainly binding on the parties. It is less formal than a trial, and evidentiary rules are frequently eased. In most cases, an arbitrator’s ruling cannot be appealed. There is relatively little room for judicial intervention in the arbitration procedure, except for some interim remedies.
Conciliation
A non-binding technique in which the parties to a disagreement are assisted by an impartial third party, the conciliator, in finding a mutually satisfactory agreed settlement of the problem. Conciliation is a type of arbitration that is less formal. The parties have the option of accepting or rejecting the conciliator’s recommendations. However, if both parties approve the conciliator’s settlement instrument, it will be final and binding on both sides.
Mediation
A neutral person known as a “Mediator” assists the parties in attempting to obtain a mutually agreeable resolution of the issue during mediation. The mediator does not decide the problem; instead, he or she assists the parties in communicating so that they can try to resolve it themselves. The parties retain control of the outcome in mediation.
Negotiation
A non-binding procedure in which the parties commence negotiations without the involvement of a third party to reach a negotiated settlement of the dispute. It is the most common method of Alternative Dispute Resolution that occurs in the workplace, in non-profit organizations, in government branches, in legal proceedings, between nations, and in personal issues such as marriage, divorce, parenting, and everyday life.
Lok Adalat
The establishment of voluntary agencies known as Lok Adalat’s (Peoples’’ Courts) is an interesting characteristic of the Indian judicial system. To encourage out-of-court settlements, the Legal Services Authorities Act was passed in 1987, and the new Arbitration and Conciliation Act was passed in 1996. Lok Adalat, or “People’s Court”, is an informal environment that allows bargaining in the presence of judicial authority and disburses cases without placing undue focus on legal details. The Lok-Adalat’s decision is final, and it is regarded as a civil court judgment that is binding on the parties to the dispute. The Lok-Adalat’s decision is not appealable in a court of law.
Evolution of ADR
Evolution and codification of ADR in India
The process of ADR is not new in India. It has always been practised since the ancient period. People in India believed that resolving disagreements within the four walls was an important aspect of maintaining their dignity and personality in society. Hence, ADR plays a major role in Indian Society to settle the disputes formally and informally.
In 1772 during the British rule in India, the courts were empowered to refer disputes to arbitration either at the request of the parties or at their discretion. In 1859 when The Code of Civil Procedure was enacted, Sections 312 to 327 of the act mentioned arbitration but in 1882 the sections relating to arbitration were repealed. In 1899 The Indian Arbitration Act, of 1899 was enacted to give effect to alternate dispute mechanisms in India. The act was based on English legislation. The CPC has then changed again in 1908, with section 89 of the second schedule giving courts broad powers to refer conflicts to ADR mechanisms. The Indian Arbitration Act of 1899 and section 89 of the Code of Civil Procedure, second schedule, were two effective pieces of law to deal with arbitration at the time.
Following that, India signed and adopted the Geneva Convention in 1937, and a corresponding law, The Arbitration (Protocol and Convention) Act, 1937, was enacted. The Indian Arbitration Act, 1899, and section 89 of the CPC’’s second schedule were repealed in 1940, and The Arbitration Act, 1940 took their place. Later on, India accepted and signed the UNCITRAL model law on international commercial arbitration in 1985. Finally, in 1996, the Arbitration (Protocol and Convention) Act, 1937, the Arbitration Act, 1940, and the Foreign Award (Recognition and Convention) Act, 1961 were repealed and consolidated into a single piece of legislation, the Arbitration and Conciliation Act, 1996, which followed the UNCITRAL model law to improve the effectiveness and efficiency of the Act in 2002, the CPC reintroduced Section 89 with Order X (Rules 1A to 1C). In 2015 and 2019, the 1996 Act was amended twice.
Evolution of ADR in U.A.E
The United Arab Emirates is a newly developing country that has shown the world its growth in a short period. Oil was discovered in the 1950s. and it has brought a drastic change in their economy which leads to disputes. Sheikh of Abu Dhabi vs. Petroleum Development Ltd [1952] was the UAE’’s first international arbitration case. This dispute arises from a 75-year oil concession agreement between the Sheikh of Abu Dhabi and Petroleum Development Ltd. In the 1990s, the UAE began to concentrate on establishing a national infrastructure for arbitration. In 1992, the UAE Civil Procedure Code contained a short set of arbitration regulations (articles 203 to 218) that regulated and governed arbitration. The Abu Dhabi Commercial Conciliation and Arbitration Center was created in 1993 by the Abu Dhabi Chamber of Commerce and Industry. The Center for Commercial Conciliation and Arbitration was created by Dubai’s Chamber of Commerce in 1994.
The International Commercial Courts of Dubai International Financial Center (DIFC) were established in 2006. The DIFC courts are autonomous English-language common law courts, whereas Dubai courts are civil law courts. As a result, the DIFC is frequently referred to as a “common law island in a civil law ocean.” The DIFC is a financial-free zone in the United Arab Emirates where UAE civil and commercial law is not implemented. The DIFC has its own set of civil and commercial laws, as well as an arbitration statute. The DIFC arbitration law was passed in 2008 and is based on the UNCITRAL Model Law, which is not the same as the UAE’’s arbitration legislation.
As a result, where the seat is in the DIFC, the UAE Civil Procedure Code’s arbitration provisions do not apply. As a result of this momentous development, the UAE now has both a civil law “on-shore” and a common law “off-shore” court system. Arbitration centres can be found in both on-shore and off-shore nations. By that time the main arbitration institutions in the UAE were DIAC based in Dubai, ADCCAC based in Abu Dhabi, and the DIFC – LCIA (London Court of International Arbitration) based in DIFC.
The year 2021 will be remembered for significant changes in the arbitration sector, with a new decree designating the ‘Dubai International Arbitration Centre (DIAC) as the emirate’s sole arbitral chamber, effectively abolishing the Dubai International Financial Center-London Court of International Arbitration (DIFC-LCIA). The decree, which came into effect in September 2021, establishes the Dubai International Arbitration Center as the emirate’s sole dispute-resolution seat.
ADR framework in India
Arbitration and Conciliation Act, 1996
Arbitration and Conciliation Act, 1996 Section 2 (1) defines “arbitration” as any arbitration whether or not administered by a permanent arbitral institution and Section 7 provides “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
The Act provides an arbitral award which includes an interim award. An award is an instrument embodying the judgment pronounced by an arbitral tribunal on disputes submitted to it by parties, to an arbitration agreement for determination in a quasi-judicial manner. Section 2(1) (d) provides Arbitral tribunals as domestic tribunals constituted by the parties to an arbitration agreement for the resolution of disputes specifically agreed upon between them to be referred for adjudication by the particular arbitral tribunal. “An arbitrator is a judge of a private Court who gives a private judgment that is an award”. In practice, there are some types of arbitration which include Ad hoc arbitration, Institutional arbitration, statutory arbitration, and fast track arbitration.
In Arbitration and Conciliation Act, 1996 seeks to harmonize and update the law concerning Domestic arbitration, International commercial arbitration, enforcement of foreign arbitral awards, and the law relating to conciliation and related to the matters connected therewith. To begin the arbitration, the arbitration clause must be included in the contract or agreement between the parties. When a dispute emerges between the parties, an arbitration clause states that it must be addressed by arbitration. In the arbitration provision itself, the parties must state the seat and venue of the proceedings.
Then the Act states the provision of notice for commencement of the arbitration. Section 21 provides that unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. Once the respondent receives the notice from the applicant about the commencement of arbitration, both the parties will appoint an arbitrator in a manner that is stated in the arbitration clause. Section 11 states that a person of any nationality may be an arbitrator unless otherwise agreed by the parties. Then section 23 states that the claimant drafts a statement of claims that includes all papers they believe are relevant to the case, as well as all evidence supporting their allegations. In support of their position, the respondent may file a counterclaim or a statement of defence, which will be reviewed by the arbitral tribunal. Once it is done hearings will take place.
According to the provision given in section 24 of the said Act, the arbitral tribunal will hear both parties and examine the evidence. The Tribunal will determine whether the documents or evidence presented are legitimate and will then proceed with the case. The arbitrator will make a final award after hearing both parties and analysing all of the concerns. This award must be rendered in writing and signed by all of the Tribunal’s members. Both parties must accept this award as final and binding. Section 31 of the Act specifies the format and content of the arbitral award. Following the arbitral tribunal’s decision, the award must be carried out. Sections 35 and 36 contain provisions relating to the finality and execution of arbitral awards, respectively. However, while an appeal cannot be filed with the Arbitral Tribunal, the parties can challenge the arbitral ruling in a court of law under section 37 of the Arbitration and Conciliation Act, 1996.
ADR framework in Dubai
The Decree No. 34 of 2021 (the Decree) was released on September 14, 2021, signalling significant changes to Dubai’s dispute resolution landscape. The Dubai International Financial Center (DIFC) Arbitration Institute (DAI), which had operated the DIFC-LCIA Arbitration Center (DIFC-LCIA), the foremost MENA arbitral institution, through an agreement with the LCIA, was abolished as a result of this legislative surprise. The Decree went into force on September 24, 2021, the date it was gazetted. The reformed Dubai International Arbitration Center (DIAC) was founded as a single unified arbitration institution for Dubai. The Decree also establishes a new Statute for DIAC, which includes a Board of Directors, a Court of Arbitration, and an Administrative Body with a new organizational structure into a unified body. The decree lays forth clear and comprehensive principles and requirements for DIAC that are in line with international best practices.
Article 2 of the Statute of the Dubai International Arbitration Center aims to achieve several objectives mainly to consolidate the position of the Emirate as a reliable international centre for Dispute resolution through ADR Methods. Which will help them to enhance the position of the DIAC as one of the best options available to parties to Disputes for efficient and effective Dispute resolution, through adopting the international best practices in ADR Methods management. They also aim to promote recourse to ADR Methods to serve the best interest of the finance and business community in the Emirate.
Article 3 of the statute simplifies the functions of the DIAC. The duties and powers of the institution are laid down in this article. It provides the service of administrative supervision of arbitration at the DIAC by the arbitration rules adopted by the DIAC or those agreed upon by the parties to Disputes. It has allowed resolving disputes in various languages through ADR following the relevant rules adopted by the DIAC. For the DIAC to achieve its goals, it must coordinate, cooperate, and sign agreements and memorandums of understanding with specialized regional and worldwide arbitration organizations and centres. This includes exchanging expertise, lists of arbitrators and conciliators, and other resources.
DIAC should ensure that it concludes agreements and memorandums of understanding with competent courts, both inside and outside the Emirate on topics relating to the enforcement of arbitral awards and decisions made by DIAC arbitration tribunals. Then the approval of settlement agreements is mediated by conciliators who are members of the DIAC, following the procedures and standards adopted by the competent courts and as agreed upon with these courts in this regard. The institution should raise awareness of ADR methods through Organizing conferences, symposia, workshops, and training courses and issuing as well as print materials and publications specializing in ADR Methods. The institution should create a register of DIAC members and lists of arbitrators, experts, and conciliators, and a database of the decisions issued by the Arbitration Court on the recusal and removal of arbitrators, experts, and conciliators. The general public has to get to know the rules of arbitration and conciliation, as well as bylaws controlling the ADR Methods, in multiple languages, and make them available on the DIAC website and recognized digital channels. The institution is entitled to perform any other tasks or powers necessary for the DIAC’’s objectives to be met.
The DIAC will be having the Board of Directors, The Arbitration Court, and the administrative body it has been laid down in Article 5 of the statute. Article 10 of the statute lays down that within the DIAC, a court of arbitration will be constituted, consisting of a president, vice president, and other members. The total number of members must not exceed thirteen including the president and the vice president of the Arbitration Court.
The new DIAC ARBITRATION RULES 2022 (the “Rules”) came into effect on 21 March 2022. The Rules were approved at the meeting of DIAC’s Board of Directors on 25 February 2022. All new requests for arbitration submitted to DIAC after this date shall be governed by the Rules.
Article 4 of DIAC ARBITRATION RULES 2022, provides that the parties wishing to commence an arbitration under the Rules shall submit to the centre a request for arbitration with the credentials mentioned in the article. Within 30 days after the request has been notified to the respondent, the respondent shall submit to the centre an answer with certain credentials mentioned in Article 5 of the rules. Whereas Article 6 of the Rules gives power to the Tribunal to rule on its jurisdiction, including on any objections made concerning the existence, validity, scope, applicability, or interpretation of the agreement to arbitrate regardless of any allegation that the relevant underlying contract is non-existent, cancelled, rescinded, terminated and/or null and void. Then the representation can be made as per the choice of parties irrespective of their nationality or professional qualifications which are provided in Article 7 of the rules.
Article 20 specifies that the parties may agree in writing on the seat of the arbitration as per their choice. The language of the arbitration as mentioned in Article 21 can be unless otherwise agreed by the parties, the initial language of the arbitration shall be the language of the agreement to arbitrate. Article 23 of the rules provides that within 15 days after the transmission of the file to the tribunal, they should contact the parties to set the date for a preliminary meeting. Article 24 of the rules allows the claimant to submit its detailed statement of claim if they haven’t done with the request within such a time limit as determined by the tribunal after consultation with the parties. Article 25 of the rules laid down that each party shall have the burden of proving the facts relied on to support its claim or defence.
Article 26 of the rules provides for hearings of the parties, if either party requests a hearing or hearings for the presentation of evidence by witnesses or oral argument or both or, failing such request, the Tribunal decides that such hearing or hearings should take place, the Tribunal shall determine whether such hearing(s) shall be held in person, by telephone or through any other appropriate means of virtual communication including video conferencing. Article 34 of the rules specifies the general provisions of the “award”. Where the Tribunal may issue preliminary, interim, partial, final, additional, supplemental, or other awards as considered appropriate. Unless the provisions of Article 35 conflict with a mandatory provision of the procedural law applicable to the seat of the arbitration and subject to some other provisions in the rules the time limit within which the Tribunal must issue the Final Award is 6 months from the date of the transmission of the file to the Tribunal by the Center.
Commercial mediation in the UAE
The concept and application of mediation have grown in popularity in the United Arab Emirates. In the United Arab Emirates, mediation is widely accepted, and it is a legal subject that has been well investigated. Mediation requires that the decision not be formalized until the parties have reached an agreement unanimously. In a mediation process, all parties’’ interests are considered so that no one is harmed as a result of the conclusion.
The following stages of the mediation process, though they may vary, are included: initially, the mediator will introduce himself and the parties to the dispute, followed by a statement of objective. The disputants must then state the circumstances surrounding the conflict and how they have been affected. Following a conversation in which the parties have the opportunity to hear their opponents and address the issues at hand. Following that, the mediator summons each party for a private meeting, followed by a combined negotiation. Finally, there will be a conclusion reached between the parties, resulting in an amicable resolution of the disagreement.
Conclusion
Alternate dispute resolution has undoubtedly become the most effective dispute resolution mechanism in the corporate world for settling complex disputes amidst commercial transactions and deals in the business. It helps to settle the disputes amicably barring the hurdles of lengthy court procedures which benefit the widespread expansion of business. Moreover, this has been the most viable mode of resolving disputes among the general public. Considering the importance and impact of ADR from laymen to Corporates to settle disputes and develop business across the globe, it has also been duly regulated and implemented with sound statutory provisions in various countries.
Looking into the relevant statutory mechanism regulating ADR in Dubai and India, it can be concluded that, the ongoing deluge of changes brought by the Dubai Government in developing the ADR mechanism on par with the international standards, setting up of the Dubai International Arbitration Center is certainly a milestone step to consolidating Dubai’s position as a global hub for resolving disputes. With the position that Dubai currently plays in commerce and trade in the region and worldwide, it was natural to unify Dubai’s efforts to create a renowned international arbitration centre.
In India, as rightly pointed out by Honourable CJI N V Ramana, “The concept of alternative dispute resolution (ADR) has the potential to transform the Indian legal landscape by providing a platform for millions of people to settle their grievances,” the Arbitration and Conciliation Act 1996 has certainly developed the practice. With the recent legislative developments initiated by the Indian government introducing the mediation bill in the parliament is indeed a promising step since it will further revamp the existing ADR framework in adherence with the international standards and thereby facilitate the key objective of delivering justice promptly and expediently.
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