This article is written by Abanti Bose, studying at Amity University Kolkata, India. The article states the various modes of discharge of contract under the Indian Contract Act, 1872 with the help of illustrations and case laws.
A contract is a legally binding agreement between two or more parties, where one agrees to do or refrain from doing something in exchange for consideration. Discharge of contract means terminating the contractual relationship between the two or more parties who entered into the contract previously. When the rights, obligations and duties of the parties come to an end it is known as the discharge of contract. Discharge of contract also ceases the legally binding power of the contract. Therefore, once a contract has been discharged the parties are no more obligated to each other and the contract becomes void. The various ways a contract can be discharged are stated in the article below.
Various modes of discharge of contract
Discharge by performance
A contract can be discharged by performance and it is the most common form of discharge of contract. A contract will be discharged if the duty stated in the contract has been fulfilled by the parties. If only one person in a contract performs the promise which is mentioned then he alone is discharged. There are two types of discharge of a contract by performance.
For example; A and B enter into a contract that A will pay B Rs 1,000 if B delivers a package to C’s house. B does the agreed part specified in the contract and upon doing it A pays B the mentioned amount in the contract. Thus, the contract is discharged by performance since both parties performed the specified task in the contract.
Actual performance
In this case both the parties in a contract must perform their promises. Unless the Indian Contract Act, 1872 or any law at the time being prohibits the parties from performing their promises. In case either party dies or is unable to fulfil the promise then the representatives of such party shall be liable to perform the promise laid down in the contract.
Attempted performance
When the promisor offers to give his performance under the contract, but the promisee refuses to accept the same, then it amounts to discharge by attempted performance.
Discharge by mutual agreement
In this case, the parties to a contract do not perform the promise stated in the contract if they arrive at a mutual agreement. This requires substituting or altering the existing contract with a new one.
Illustration: ‘P’ owes a certain sum of money to ‘Q’ under a contract, but they arrive at a mutual agreement that henceforth ‘R’ will pay back the money owed to ‘Q’. This results in a mutual discharge of the contract between ‘P’ and ‘Q’ and a new contract is formed between ‘R’ and ‘Q’.
Novation
It occurs when a contract is substituted for the old contract between the same or new parties. In order to enforce novation, the following conditions must be followed. It is laid down in Section 62 of the Indian Contract Act, 1872.
There must be a valid reason for substituting the contract.
Consent of all the parties is required.
The old contract must be substituted before the expiry or breach of the contract.
In the case of Manohur Koyal v. Thakur Das(1888), the defendant failed to pay the agreed upon sum to the plaintiff on the due date stated in the contract. However, the defendant promised to pay Rs. 400 to the plaintiff and to execute a fresh kistibundi bond. The plaintiff agreed to this but the defendant failed to pay that amount consequently, the plaintiff sued the defendant. The Calcutta High Court stated that since the new bond was created after the breach of the original contract, therefore the contract cannot be discharged by novation but by breach of contract.
Remission
Remission occurs when parties to a contract accept a lesser amount or lesser degree of performance than what was initially agreed upon in the contract. Section 63 of the Act states that a party may;
Remit the performance stated wholly or in part.
Extend the time for performance.
Accept any other kind of performance apart from the one mentioned in the contract.
Illustration: Paul owes 10 lakh rupees to Peter but due to some unforeseen circumstances Paul can only repay 6 lakh rupees to Peter within the stipulated time period. But if Peter agrees to accept the amount which could be paid by Paul and settle the debt then, Peter’s act of remission discharges the contract.
Alteration
It means changing one or more contract terms, thereby discharging the old contract and forming a new one. Alterations to a contract must take place with the consent of all the parties to the contract. In the case, United India Insurance Co. Ltd v. M.K.J. Corporation(1996), the Supreme Court held that utmost good faith must be observed by the contracting parties and the duty of good faith is of a continuing nature even after the completion of the agreement no material alterations can be made to the contract without the mutual consent of the parties.
Rescission
Rescission takes place when the parties in the contract agree to dissolve the contract. In this case, the old contract stands discharged and no new contract is formed.
Waiver
The term waiver means the abandonment of a right. A party to a contract may have their rights specifically stated under the contract which also helps to release the other party from the contract and the contract is discharged.
Merger
When an existing inferior right of a party, in respect of a subject matter, merges into a newly acquired superior right of the same person, in respect of the same subject matter, then the previous contract conferring the inferior right stands discharged by the way of merger.
Discharge by lapse of time
A contract will be discharged if the performance is not completed within the given time period. This might also result in a breach of contract. In that case, a person might file a suit under the court of law stating that his rights have been infringed and also claiming to enforce his rights. The individual whose rights have been breached can file a suit under the Limitation Act, 1963.
For example; A had to deliver fresh fruits to B’s storehouse within a period of two days but due to A’s irresponsibility, he delivered the fruits after two weeks. Therefore, in this case, the contract will be discharged as the required performance was not completed within the specified time.
Discharge by operation of law
This mode of discharge of contract does not allow the fulfilment of the promise laid down in the contract by the provisions of law. Situations such as death, insolvency, merger, etc. do not enable the fulfilment of the promise, hence it results in the discharge of the contract.
Discharge by supervening impossibility
Discharge of a contract by supervening impossibility is a contract that has become impossible or illegal to perform. In these cases the contract becomes void. It is also known as the doctrine of frustration. Frustration occurs when it is established that due to subsequent changes in circumstances, the contract has become impossible to perform or it has been deprived of its commercial purpose. The ways in which it occurs are mentioned below;
On the destruction of subject matter, a contract will be discharged and no party will be held liable.
If the performance of the promise mentioned in the contract becomes unlawful then the contract will be void.
A contract tends to be discharged on accounts of death or personal incapacity.
When the circumstances surrounding a contract change then it will be discharged.
Discharge by breach
When a contracting party refuses or fails to perform or disables himself from performing or makes the performance of the promise stated in the contract impossible by his conduct, then the contract is said to be discharged by breach. A party to a contract may discharge it by actual breach or anticipatory breach.
When a default is committed by a party on the due date of performance it amounts to an actual breach and when the party commits a default before the due date of performance it amounts to an anticipatory breach.
Suit for specific performance
In this case, where the damage or loss suffered cannot be measured in terms of money the court, in such cases directs the defaulting party to perform the contract specifically where the ordinary remedy by a claim for damages is not adequate compensation. It is a discretionary remedy. The instances where the court orders discretionary remedy:
Where the act in itself is such that monetary consolation for its non-performance is not adequate.
Where it is not probable that monetary compensation will be available.
Where no standard is available to ascertain the value of the actual harm caused by non-performance.
Suit for quantum meruit
In the legal sense, the term quantum meruit means ‘payment in proportion to the work done’. In other words, quantum meruit means that a person can recover compensation in proportion to the work done or service rendered by him. It is known as a quasi-contractual remedy. The claim on quantum meruit arises in the following cases:
When a party performs a part of the contract, but the other party breaks it in between, then the injured party can claim compensation for the work done or the service rendered.
When something has been done non-gratuitously.
Where some work has been done and accepted under a contract that is subsequently discovered to be void, then in such case, the person who has performed the part of the contract is entitled to recover the payment for the work done.
Exceptional cases when a contract is not discharged
The doctrine of frustration or supervening impossibility does not apply to the following cases mentioned below.
When in any case a situation arises that makes the performance of the certain promise mentioned in the contract very difficult to be performed, then in that situation, it makes the promise challenging to be fulfilled but the contract is not discharged.
Commercial hardships make the contract unprofitable but it does not discharge a contract.
Strikes, lock-outs, civil disturbances and riots do not discharge the contract unless there is a clause in the contract specifying that in such event the contract will be terminated.
A contract is not discharged due to the self-induced incapacity of the parties to a contract.
In a contract where performance is relied upon by a third party, it will not be discharged due to the failure or default of the third party.
Difference between discharge, rescission and termination of a contract
Discharge of contract takes place when the parties to a contract have fulfilled and performed their obligations as stipulated and negotiated in the contract. It is an ideal course of action as the parties to the contract have attained the obligations and performed the agreed upon duties.
When a contract is formed under fraudulent circumstances, the party who was defrauded will not be expected to fulfil the obligations stated in the contract. The fraud may involve overt, intentional fraud, a misrepresentation of facts or circumstances, or a material omission. Despite the type of fraud, the party may end the contract without any consequence. This kind of termination of a contract is known as rescission.
A contract can be terminated by discharge or rescission however, certain circumstances outlined in the contract may enable the parties to a contract to terminate the said contract even if all the duties and obligations stated in the contract have not been fulfilled. Further, sometimes a contract can be terminated due to a change in circumstances thus making it impossible to fulfil.
Conclusion
Thus we can understand that discharge of contract refers to the contractual relationship coming to an end when the obligations and duties have been fulfilled by the parties to a contract. In this case, the parties are free from the obligations of the contract. As mentioned earlier there are various modes of discharging a contract but the best way to do it is by performing the promise within the stipulated time stated in the contract as the other modes are quite unpleasant ways to release the parties from duties because it leads to damages.
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Section 10 of the Civil Procedure Code, 1908, (C.P.C.) is based on the principle of res sub judice which means “under judgment”. This section specifies that no other court can proceed with the trial of any suit in which the issue concerned is directly and substantially in question in any previously instituted suit between the same parties or parties that are litigating on behalf of them; provided other conditions mentioned in the section are also satisfied; to mention – the parties must be litigating under the same title and such a suit should be pending in the same court or any other court in India. Such a court should be competent to take up the suit and grant the relief claimed whether in India or a court beyond the limits of India but established or which is continued by the Central Government having like jurisdiction, or before the Supreme Court.
The object of the prohibition contained in Section 10 is to prevent a plaintiff from instituting two parallel suits so as to deter different judgments on the same matter in issue. However, Section 10 does not prevent the court from dealing with the subsequent suit for any other purpose. The object is merely to avoid a multiplicity of suits and to reduce the burden on the courts. The question to be answered in this article is whether the court can suo moto stay a suit under Section 10 of the C.P.C. even if the parties to the suit have not filed an application to that effect?
Under which conditions Section 10 can be attracted
The following conditions must be satisfied for the application of Section 10:
There must be two suits, one that is already instituted and the other subsequently instituted.
The subject matter in issue in the subsequent suit must be directly and substantially the same as the issue in the previous suit.
The two suits must be filed on behalf of the same parties or their representatives.
The earlier instituted suit must be pending in the same court in which the subsequent suit is brought or in any other court in India or any court outside the limits of India established or continued by the Central Government or before the Supreme Court.
The court in which the previous suit is instituted must be competent and have the jurisdiction to grant the relief sought in the subsequent suit.
The parties must be litigating under the same title in both the suits.
As laid down in Manohar Lal Chopra v. Seth Hiralal; if the above conditions are satisfied, a court cannot proceed with the subsequently instituted suit since the provisions contained in Section 10 are mandatory, and no discretion is left with the court. The order to stay the proceedings in the consequent suit can be made at any stage.
Another fundamental test for applicability of Section 10 is whether, on the final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. This was laid down in the National Institute of Mental v. C. Parameshwara.
Section 10 does not, however, limit the court’s power to consider the merits of the case. It is up to the court, if satisfied, to consider if a subsequent suit may be decided purely on legal grounds.
Do courts have the power to suo-moto stay a suit under Section 10
In the case of Smt. Pooja Soni V. Dinesh Kumar 2019, the Madhya Pradesh High Court laid down a precedent answering, whether to exercise power under Section 10 of the C.P.C., an application is required to be filed or not? A petition was filed by the petitioner challenging an order passed by the Court of First Civil Judge Class I, Nasrullagang, where the application filed under Section 10 of C.P.C. was rejected by the Trial Court. The petitioner contended that she was the owner of a property which she purchased out of her stridhan. As a mark of respect, the petitioner mutated her husband’s name in the revenue record.
Petitioner’s husband later borrowed Rs.2 Lakh from the respondent by which the respondent kept the Rin Pustika in respect of the property with him which was to be returned once the money was paid. Even after returning the money, the respondent did not hand over the Rin Pustaka.
The petitioner further contended that under the garb of loan transaction the respondent got a sale deed executed by the petitioner’s husband in favour of the respondent.
In a suit instituted by the petitioner against the respondent, the petitioner prayed for a decree of declaration of the sale deed null and void and permanent injunction. The respondent had also filed a suit for a permanent injunction on the strength of the sale deed that was executed in his favour by the petitioner’s husband. The respondent had filed the suit on 31st July 2017, while the petitioner had filed the suit on 2nd August 2017 i.e. just after two days.
The petitioner then applied under Section 10 of the C.P.C. praying that the suit filed by the respondent be stayed. The Trial Court vide its order disposed of the application of the petitioner and further directed the stay of the petitioner’s suit.
After the rejection of the petitioner’s application under Section 10 of C.P.C., the petitioner further filed another application under Section 151 of C.P.C. praying for the consolidating hearing of both the suits. The learned Trial Court at this point rejected the said application on the ground that the proceedings of the petitioner’s suit had already been stayed in the earlier order.
The issue raised by the petitioner
Among the other issues, one of the issues raised by the petitioner was whether the Trial Court erred in staying the petitioner’s suit, without an application being filed for the same? The petitioner had in fact filed an application for the stay of the respondent’s suit.
Observations made by the High Court
On perusal of the plaints submitted by both the parties, the Hon’ble High Court concluded that the issues in both the suits were distinct, despite the fact that the parties and property in both suits were similar. It was pointed out that the respondent sought a permanent injunction in his suit, but the petitioner was seeking a declaration and permanent injunction in her subsequent suit. As a result, the reliefs sought in both suits were distinct.
Responding to the petitioner’s contention that the learned Trial Court failed to consider that under Section 10 of the C.P.C., an application for stay of the suit must be filed in the same suit, and in the immediate case, the application was filed in another suit. While the Trial Court directed for the stay of the petitioner’s suit, the Hon’ble High Court upheld the stay by referring to the case of Munnilal Vs. Sarvajeet, which held the Court under Section 10 of the C.P.C. can suo moto stay in a second suit.
However, the Court also held that in the present case, the property and most of the parties were the same and the topic in issue was also the same to some extent. Therefore, consolidation of both suits would be in the interests of justice to avoid duplication of processes and undue delay and protraction of litigation.
Judgment
From the observations of the Court made above, it is evident that an application is not required to exercise power under Section 10 of the C.P.C. and the Trial court did not err in this aspect.
Inherent power to stay a suit under Section 151 of C.P.C.
A civil court also has inherent power under Section 151 of C.P.C. to stay a suit even where the provisions of Section 10 of the Code do not strictly apply to achieve ends of justice. However, it was held in Manohar Lal Chopra v. Seth Hiralal; that a court in which a subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances. It was laid down that when there is a special provision under Section 10 in the Code of Civil Procedure for dealing with the contingencies of two such suits being instituted, the recourse of inherent powers under Section 151 cannot be justified.
Under which conditions is the court left with no discretion
Where the conditions under Section 10 of C.P.C. are fulfilled, the court does not have any discretion but to stay the suit. It was established in Manohar Lal Chopra v. Seth Hiralal; that a court cannot invest itself with jurisdiction not conferred on it by law in issuing a stay in the execution of its inherent powers. The provisions of Section 10 do not become inapplicable if the court determines that the previously instituted suit is vexatious or was brought in breach of the contract terms. Citing the observations made in Ram Bahadur v. Devidayal Ltd., the court held that it was not reasonable to say that the Legislature did not intend for the provisions of Section 10 to apply when the previously instituted suit was found to be instituted under vexatious motive. It was further observed that the provisions of Section 35A show that the Legislature was aware of false or vexatious claims or defences in suits and provided for compensatory costs as a result. In such instances, the Legislature could have allowed for the non-applicability of provisions of Section 10 but they did not do so.
Conclusion
Taking into consideration the observations of the Madhya Pradesh High Court in Smt. Pooja Soni V. Dinesh Kumar 2019; it can be said that the courts do have a suo moto power to stay a suit under Section 10 of the C.P.C. even when an application to that effect has not been filed. The conditions as laid down above should have been met for the applicability of the section. However, the court is not left with any discretion in certain circumstances where the actualities show that all the requirements of Section 10 are fulfilled, the court has to mandatorily stay the suit and in the execution of its inherent powers, the court cannot invest in itself with jurisdiction that it is not conferred with by the law.
References
Manohar Lal Chopra v. Seth Hiralal, AIR 1962 SC 527; 1962 Supp (1) SCR 450
National Institute of Mental v. C. Parameshwara AIR 2005 SC 242
Civil Procedure Code with Limitation Act 1963 by C.K. Takwani
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This article is written by Monesh Mehndiratta, a student of B.A.LL.B, Graphic Era Hill University, Dehradun. The article deals with the Civil Rights Act of 1964, its importance, history, scope, and availability. It further gives an overview of the Act along with its features and analyzes the act in the light of the current situation.
It has been published by Rachit Garg.
Table of Contents
Introduction
The Civil Rights Act of 1964 is a landmark Act dealing with the civil rights of people in the United States that prohibits any kind of discrimination based on race, caste, creed, religion, sex, or origin. It further says that there should be no unequal voter registration process for different people living in the same country, and everybody must be subject to the same laws. The practice of racial segregation in schools, offices, public accommodations, and discrimination at the workplace is strictly forbidden.
This Act came into effect on July 2, 1964, enacted by the 88th United States Congress. It is a public law and has amended the previous Civil rights Act of 1957 and 1960. It protects the civil rights of the people from being hampered by the state or any of its authorities. The legislation to enact this Act was proposed by then-President John F. Kennedy in 1963. After his assassination, it was carried forward by President Lyndon B. Johnson. During his tenure, the bill was passed and signed by him. The article gives an overview of the Act and then discusses the lacunas in it.
Background of the Civil Rights Act, 1964
The Civil Rights Act of 1964 is considered to be a hallmark of the American civil rights movement. The movements in the early 1960s grabbed the attention of the authorities to the racial discrimination prevailing in society. There were certain civil rights cases in this nation wherein the Supreme Court of the US held that the Congress did not have the power to prohibit discrimination in the private sector. This ruling went against the very purpose of the Civil Rights Act of 1857. This enraged the people, a result of which a lot of movements were seen in the United States.
The Civil Rights Act of 1857 was enacted by President Dwight D. Eisenhower as the first federal civil rights legislation. This was done because the Supreme Court in the case of Brown v. Board of Education (1954) made the school segregation laws, which made the Democrats lead an unconstitutional, massive campaign to enhance the protection of the voting rights of African Americans. The Act of 1857 established the United States Commission on Civil Rights and the Department of Justice Civil Rights Division. In 1960, another civil rights act was passed, which eliminated the loopholes of the previous act.
The President of the U.S.A, John F. Kennedy, in 1963, thought to establish the ‘right to be served’ in restaurants, theatres, hotels, etc., along with ‘greater protection for the right to vote’. This was done in the wake of many protests going on in the nation at that time. The bill of civil rights was discussed with the president after the nation witnessed the march in Washington for employment. The bill was introduced in the house on June 20, 1963, and then the senate passed it in 1964. In between these events, the President was assassinated and the new President gave assent to it on July 2, 1964. Many people contributed to this act, and one of them was Martin Luther King, Jr.
Salient features of the Civil Rights Act, 1964
The salient features and the importance of the Act are given below:
The act forbids any kind of discrimination based on caste, creed, sex, race, religion, or nationality.
It prohibits discrimination in employment, education, and the workplace.
Everyone will be treated equally under the same laws of the state.
It provides for public accommodation and the advantage of public programmes to all, irrespective of their race, origin, gender or caste.
It gives equal voting rights to all and strengthens such enforcement.
It works on desegregation in schools and universities.
The Act has been amended several times due to the needs and demands of society.
Objectives of the Civil Rights Act, 1964
The purpose of the Act is :
To prohibit any kind of discrimination.
Forbid the authorities to exercise their powers endlessly.
Provides remedies to the victims whose civil rights have been violated.
Grants the right to vote equally to everyone, and all votes must be counted in the same manner.
Gives equal protection of the laws to all its citizens.
Overview of the Civil Rights Act, 1964
The Civil Rights Act of 1964 has been divided into several sections called ‘title’ each addressing different topics and issues.
Title I – Voting Rights
This title addresses the voting rights of the people. It says that there shall be no special registration requirement for any voter belonging to any particular class or caste. However, it did not exclude literacy tests,which were a barrier for certain voters, mainly, black voters and the minorities who witnessed retaliation, repression and violence by the police. Though it mandated uniform procedure and requirements for the voters but did not abolish the ‘qualifications’ for the voters. According to this Act, the voters had to meet the standards which went beyond citizenship. The amendment in 1965 changed the scenario of voting rights as it eliminated the qualifications and the literacy tests for voters, making it flexible and easy for people to register as voters.
Title II – Public Accommodations
This section prohibited the segregation or discrimination of people on the grounds of race, caste, creed, or origin in public places like hotels, theaters, accommodations, etc. In the case of Heart of Atlanta Motel,Inc v.U.S (1964) , the court upheld the prohibition of discrimination in public places as an exercise of the power of Congress’s interstate commerce (Georgia). In another case of Hamm v.City of Rock Hill (1964) , in South Carolina, there were charges of breach of peace against the demonstrators at a lunch counter and the court dismissed them because it conflicted with the Section of the Act.
Title III – Desegregation of Public Funds
This section gives the power to the Justice Department of the U.S. to file a case against a person for segregation of public facilities. It is done to secure the desegregation of people and give equal opportunity to everyone to enjoy public funds and facilities owned by the state. In the case of U.S.v.Wyandotte County (1973) it was found that in the county jail of Kansas, prisoners were segregated based on race, caste, color, and creed and faced violence. This violated the Civil Rights Act of 1964.
Title IV – Desegregation of Public Education
Under this, complaints related to segregation of children in school or denials of protection can be made to the Attorney General to investigate the matter and file the case in District Courts to seek justice on the issue. The Secretary of Education must provide funds to schools to facilitate the process of desegregation.
Title V – Civil Rights Commission
This title talks about the establishment of the Civil Rights Commission and its duties. It is the duty of the commission to investigate complaints if any person has been deprived of his right to vote and that vote be counted. It can make laws for the equal protection of people from denials or discrimination in voting, education, housing, employment, transportation, and seeking justice.
Title VI- Nondiscrimination in federally assisted programs
This title forbids the authorities of federal funds to discriminate against people based on caste, creed, race, or nationality.
Lau v. Nichols (1974)
There was a school in California that was funded federally to provide English courses to Chinese students but was not doing so properly. It was held in this case that the failure on part of the school to provide the benefits of English courses to Chinese students violated Title VI of the Act.
Cannon v. University of Chicago (1979)
In this case, it was held that Title VI empowered the authorities to stop funding the education programmes if they discriminated against students based on race and thus, provided a private remedy as well.
Alexander v. Sandoval (2001)
This case held that Title VI provided remedies based on the intention of a person or organization to discriminate. The evidence regarding the impact of discrimination is not necessary.
Gratz v. Bollinger (2003)
It was held in this case, that if any institution accepting federal funds, violated the Equal Protection Clause of the 14th Amendment, then it is said to violate Title VI of the Act.
Title VII – Equal Employment Opportunity
This title forbids discrimination of employees based on caste, creed, race, or nationality in any business having at least 25 members. It also established the Equal Employment Opportunity Commission. Refusing women any job because of the expectancy of a child constitutes sex discrimination under this title. (InternationalUnion,UAW v.Johnson Controls,Inc,1991)
Griggs v. Duke Power Co. (1971)
It was ruled in this case that the tests used to determine the capabilities of the applicants for a job not related to the subject of the job harmed the minorities and thus, violated Title VII of the Act.
Phillips v. Martin Marietta (1971)
This was the first case related to discrimination based on gender. In this case, the mothers of children in preschool were not employed, but the fathers were given employment. The court held that it is clear discrimination based on gender and failed to provide equal opportunity to both genders.
Los Angeles Department of Water and Power v. Manhart (1978)
In this case, the employer pleaded the defence that females have a long life as compared to males to justify his action of hiring more females to contribute to the pension plan rather than males. The court dismissed the plea and held the employer liable for violating Title VII of the Act.
Meritor Savings Bank v. Vinson (1986)
It was in this case that sex discrimination under Title VII also included in its ambit any kind of sexual harassment against any gender. A similar instance was noticed in the case of Oncale v.Sundowner Offshore Services,Inc (1998), where it was held that sex discrimination included same-sex sexual harassment.
Ricci v. DeStefano (2009)
In this case, the New Haven officials ignored the test results which showed that white firefighters performed better than black and Latino which amounted to a violation of Title VII and were held liable for the same.
Title VIII – Registration and Voting Statistics
This title directs the bureau of the census to collect voting statistics and information like race, caste, creed, and nationality from the people but also empowers the citizens not to disclose such information if they are not comfortable or do not wish to disclose it.
Title IX – Intervention in court cases
This title gives the power to intervene in cases pending in the courts alleging denials of ‘equal protection of law’ based on race, caste, creed, and origin under the 14th amendment to the U.S. Constitution.
Title X – Community Relations Services
It established the Community Relations Services to deal with disputes of discrimination faced by people based on their race, colour, caste, religion, etc. The case of Goldsby v. Carnes (1971), described how the services helped the parties and provided assistance in the judgement related to conditions and administration of a county jail in Missouri.
Hernandez v. Erlenbusch (1973)
A case was referred to the Community Relations Services to provide aid and assistance where a tavern adopted the policy of not using any foreign language at the bar.
Title XI – Court proceedings and legalities
This title provides for a trial of the accused by jury in cases of criminal attempt under Title II, III, IV, V, VI or VII. In the case of United States v. Rapone (1997), a trial by jury was conducted for the officials of the Department of Corrections on the charge of violating the order of the court which prohibited them from retaliating against the witnesses.
Where to file a complaint?
Any complaint related to a violation of civil rights can be filed with the following federal agencies established to address the issue in different jurisdictions:
Complaints regarding businesses done with government of U.S.A.
Analysis of the Civil Rights Act, 1964
The Civil Rights Act of 1964 has defined various civil rights of the citizens of the United States providing them remedies in case of any breach of such rights by the authorities and the officials. It provides the procedure to be followed in case of violation of rights and creates various agencies and commissions to deal with the issue. However, this Act has certain loopholes and shortcomings when compared to the contemporary modern world. The Act failed to provide equal opportunities to the people. Though mentioned and prohibited in the Act, in practice, people suffer discrimination based on sex, religion, caste etc. Women are mostly not paid equally for the equal amount of work as compared to men. Racism prevails in society in the name of ‘Systematic Racism’ which means laws and regulations that provide benefits to the whites and keep the backs away from enjoying such opportunities. The real racism lies in the minds of the people. No matter how stringent the laws are, if the mindsets of the people cannot be changed the problem of segregation and racism will never be resolved.
There are cases of housing discrimination and violence faced by many that go unreported. The stakeholders or the police violence have killed many Afro-Americans. People based on their caste, race, religion, etc are arrested unnecessarily and beaten to death by the police for no reason merely on the basis of doubt and prejudice in their mindsets. There have been low voting trends in the recent past which led to a lack of representation in the government formed for the welfare of the citizens. Also, the federal authorities when scrutinized, it was found that they are not funding the schools and educational institutions as a result of which there is disparity among the people and courses being taught to each.
Lack of health care for minorities increases the mortality rate and lowers life expectancy. The pandemic witnessed by people in this century is the biggest example of the violation of civil rights of people in the United States where whites and the rich were given the preference over any other race and minority group. They were treated first and medical help was provided much before any other person. This resulted in the deaths of the masses and most of the deaths of black and people belonging to minority groups. Students from different countries studying in U.S.A and people residing there still face discrimination verbally, physically, emotionally, and financially. The original Americans did not respect such people and considered them as their slaves. All this shows that even with the presence of the Civil Rights Act of 1964 in the country, there is still violation and discrimination in the society and the civil rights of people are at stake.
Conclusion
The Civil Rights Act of 1964 is an important landmark act in the history of the U.S. Constitution which defines the civil rights of the people apart from their fundamental rights. It also prescribes the procedure and authorities to be approached in case of any dispute. However, this is not enough. When compared and analyzed with the current situation, the act fails in certain areas and needs amendment. It must agree with the needs and demands of society.
Frequently Asked Questions (FAQs)
What is the Civil Rights Act of 1964?
This is a landmark Act dealing with the civil rights of people in the United States that prohibits any kind of discrimination based on race, caste, creed, religion, sex and origin.
Who gave assent to the bill of civil rights in 1961?
Lyndon B. Johnson was the President of the United States in 1964 and gave assent to the bill as a result of which it became an act.
What is the purpose of the Act?
To prohibit any kind of discrimination.
Forbid the authorities to exercise their powers endlessly.
Provides remedies to the victims whose civil rights have been violated.
Grants the right to vote equally to everyone and all votes must be counted in the same manner.
Gives equal protection of laws to all the citizens.
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This article is written by Nidhi Rani Garg, a law graduate. This article will provide in-depth information on employee rights from various perspectives, as well as a thorough comprehension of the concept.
It has been published by Rachit Garg.
Table of Contents
Introduction
Learning about employee rights in India is important as it ensures that discrimination is avoided. In India, there are numerous provisions in employment laws that protect the interests of employees. The Indian Constitution is the foundation of individual rights and liberties, as well as the basic framework within which all Indian legislation, including labour and employment regulations, must operate. During work, all employees are entitled to certain rights and responsibilities; various employment laws of India specify that employees’ rights are equivalent to that of the employer’s, these rights protect the employees from unjust discrimination based on gender, age, ethnicity, caste, or religion. Employees have the right to privacy, fair pay, paid time off, and other benefits. Multiple provisions have been included in Indian employment laws to protect the interests of employees.
Definition of employee rights
Employee rights refers to a variety of measures that safeguard employees in the workplace. Employee rights vary depending on the company and the industry in which it operates. However, every employee, in any company, is entitled to certain benefits. At the workplace, all employees have basic rights such as the right to eat, the right to be safe, the right to be paid for the work they do, the right to join trade unions, and the right to gather – including the right to privacy, fair compensation, and freedom from discrimination, and the right to seek access to justice.
To avoid a breach of these rights and obligations, it’s essential to understand what they are. Employers and employees have reciprocal obligations to one another, which are spelled out in their employment contracts.Every employee is entitled to more than just a safe workplace; there are legal obligations for a proper work schedule, minimum compensation, and other things. Employees’ employment in the organised private sector is governed by various laws, such as the Equal Remuneration Act, Payment of Gratuity Act, Employees Provident Fund and Miscellaneous Provisions Act, Employees’ State Insurance Act, Maternity Benefit Act, and so on.
Important employee rights
Following are some key rights that employees have.
Employment agreement
All employees are entitled to an employment agreement under the employment laws that specify the date on which they should begin working for the company. An employment agreement is a written document that outlines the terms and conditions of employment, as well as the employer and employee’s rights and responsibilities. Before starting work, every employee is entitled to a written employment agreement signed by the employer. A well-written agreement drafted by a labour lawyer can avoid any unanticipated conflict between the employer and the employee, as the legal process to be followed to resolve any issue is already established in the employee’s agreement.
Salary and bonus on a regular basis
According to the Equal Remuneration Act of 1976, equal compensation for equal work must be paid regardless of gender. An employee’s salary must be paid on time, according to the Payment of Wages Act of 1936. If payment is not made, the employee can file a civil complaint or contact the Labour Commissioner. Any factory or company that is five years old and employs 20 or more people in any accounting year is legally required to pay a bonus to its employees, according to the Payment of Bonus Act of 1965.
Right to health and safety
According to the Factories Act of 1948, all employees, regardless of the type of work they do, are entitled to basic health and safety rights at work as part of a sound and viable working environment. The employer is in charge of providing basic amenities to his employees. Proper safety measures must be followed in workplaces such as construction or mining sites, dangerous equipment must be operated under expert supervision, and no minors under the age of 14 should be allowed to work.
If an employee is injured as a result of the employer’s failure to provide a safe and healthy working environment, the employer may be liable for compensation under the Employees Compensation Act of 1923.
Minimum wages
According to the Minimum Wages Act of 1948, every employee is entitled to a minimum payment that is sufficient to support his or her lifestyle while also providing the necessities. Wages that are less than the minimum wage are a clear violation of Article 23 of the Constitution. If an employee is forced to labour for less than the minimum wage, the employer faces legal implications.
Leaves and vacation time
An employee is entitled to leave and vacation time during their work. In general, an employee in India can take the following types of leaves:
Casual leaves
These leaves are set aside in case of unforeseen circumstances or incidents that require an employee’s immediate attention. A corporation usually allows up to three days of unpaid leave every month.
Privilege leaves
These leaves are left over from past years and used by the employee in the current or future years. The duration of privilege leaves can be extended for up to three years. If an employee has exhausted all of his sick days, these can be utilised instead. If an employee has balance privilege leaves remaining when they leave their work, they can be cashed.
Paid leaves
Paid leave is available to employees on a monthly, quarterly, or annual basis. For paid leaves taken, the company cannot deduct the employee’s salary.
Leave without pay
If an employee’s leave balance is depleted, he may take a day off, but his income for that day will be removed from his monthly salary. At the discretion of the management authorities, the employee may be awarded paid leave.
Sick leave
An employee is entitled to a set amount of sick days, which can be used if they become ill.
Compensatory leave
If the employee works on official off days, he or she can take these leaves.
Maternity leave
A female employee is entitled to 26 weeks of maternity/pregnancy leave, which she can use throughout her pregnancy and/or after birth. In India, the Maternity Benefit Act of 2017 protects the interests of employers who employ pregnant or lactating women. Maternity leave can also be taken in the event of pregnancy difficulties, such as early birth, miscarriage, or medical termination. In India, several private companies offer paternity leave to male employees, allowing them to care for their newborn kid(s). The Rajya Sabha first enacted the Maternity Benefit (Amendment) Act 2017 in August 2016, and the Lok Sabha followed suit in March 2017.
Paternity leave
Following the passage of the Maternity Benefit Amendment Act in 2017, a new bill known as the Paternity Benefit Bill was submitted. According to the new bill, all employees, both in the public and commercial sectors, should be entitled to fifteen days of paternity leave, which can be extended up to three months. The Paternity Benefit Bill, 2017, has been introduced in parliament with the goal of providing equal paternity and maternity leave to natural and adoptive fathers, as well as people acting in loco parentis.
Gratuity
Gratuity is defined by the Payment of Gratuity Act of 1972 as a retirement fund paid to an employee upon retirement, termination, resignation, or death. It is given to employees who have worked for at least five years in a row. If the company refuses to pay the gratuity, the employee might seek legal advice from an employment lawyer.
Provident fund
Employees have the option of keeping a portion of their pay invested in EPF, which is sent directly by the employer into PF accounts under the Employees’ Provident Funds & Miscellaneous Provisions Act, 1952. The Employees Provident Fund Organization keeps track of employer and employee contributions (EPFO).
Notice period
If an employer chooses to terminate an employee’s employment, the employee must be given notice so that they can prepare for the termination. An employer is not allowed to fire an employee without providing them notice. If an employee is fired without cause and notice, the employee can speak with a labour lawyer about filing a wrongful termination of employment complaint against the employer.
Protection from sexual harassment
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013 protects women in the workplace from sexual harassment. If a business has 10 or more employees, the Act mandates the formation of an Internal Complaints Committee to handle sexual harassment complaints. This committee must be formed at all branches and units of an organization, and it should include the following members:
A woman who works as a Presiding Officer at the highest level.
There should be no more than two other employees with appropriate legal and/or social expertise for the cause of women’s protection.
A member of a Non-Governmental Organisation (NGO) dedicated to women’s rights or knowledgeable about sexual harassment issues.
The ‘Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013’ contains a list of offences, which includes:
Advancement and physical interaction
A solicitation or demand for sexual favours
Making sexually charged remarks without being asked
Using coercion to show pornography
Any other sexually inappropriate physical, verbal, or nonverbal conduct.
If person accused of sexual harassment is convicted, he faces up to three years in prison, with or without a fine, under Section 354 of the Indian Penal Code 1860.
Workplace sexual harassment is an obvious infringement of gender equality, which in turn violates the female class’s fundamental rights. Such harassment also violates Article 19(1)(g) of the Constitution. The recommendations provide a framework for workplace etiquette, with a focus on sexual harassment prevention. The Vishaka Judgement principles have grown prevalent in the workplace due to the efforts of women’s organisations. Sexual harassment, according to the Supreme Court, violates a working woman’s fundamental rights. The Vishaka Judgment established advancements of rules, including:
‘Preventing sexual harassment is the responsibility of businesses.’
Organizations must establish a female-led sexual harassment oversight committee.
Victims must be protected, and organisations must take disciplinary action against offenders.
The rights of women workers must be made known.
Right of government employees
When it comes to jobs, people are more interested in the government sector. The following are some of the different benefits of working for the government:
Fundamental rights: Working for the government particularly protects the many essential rights guaranteed in Part 3 of the Indian Constitution from the State.
Salary: Although the monthly income may not be surprising, it is dependent on the position. However, supplementary allowances, bonuses, quarterly or variable allowances, and other benefits that government employees in India are entitled to add up to a substantial sum.
Trade unions: Unions exist in a variety of professions to advocate for the protection of rights of those employed in that field. This offers voice to those who are victims of exploitation.
Reservations: There are regulations in place that reserve seats for specific social groups, which are covered by employee rights. In the government sector, benefits are available.
Job stability: In the public sector, you cannot be fired as casually as you may be in the private sector. The rights of government workers in India functioning in the government sector include an in-depth explanation by authorities outlining the employee’s misconduct in order to be suspended from duty.
Working hours: While private-sector workers complain about the never-ending workday, government workers are usually quite rigid about working hours. They are also compensated individually for their overtime.
Importance of employee rights
Employees are the backbone of any company. Employees are considered to make or break enterprises. An employee, according to the basic textbook definition, is someone who has accepted to be engaged under a contract of service to work for a fee.
Employees, on the other hand, play a far more vital role within the organisation by developing a strong and deep relationship with their employers. Employees are required to create, administrate, organise, publicize, sell, transport, maintain, and repair when employers start a business (or develop a branch of an existing business). As a result, employees are the ones that run the business.
The wisest career move one will ever make is to educate oneself before, during, and after a job experience. This will benefit both management and employees because it will assist employees to understand their rights and offer them a more accurate picture of their options. When management informs employees of these rights, they must establish an environment in which those rights are respected. As a result, both sides recognize each other’s rights and responsibilities, which has a significant impact on the organization’s productivity.
India’s legal framework governing employment
The Indian Constitution is the supreme legislation guiding the people’s rights and behavior. It primarily protects individuals and acts as the foundation upon which all Indian legislation, including employment-related laws, is formed. The Concurrent List in the Constitution lists labour and employment legislation, indicating that the Union Parliament and state legislatures have equal authority to create laws relating to all labour and employment problems in India. The Indian Constitution has given workers numerous rights to protect them. These rights are protected by the articles below-
Article 14 of Indian Constitution
The principle of equality before the law is defined in Article 14 of the Indian Constitution. Equal does not imply total equality between humans, which is physically impossible to accomplish. It is a concept that implies the absence of any special privileges in favour of any individual due to birth, creed, or other factors, as well as the equality of all individuals and classes under the law of the state. The Supreme Court concluded in Randhir Singh v. Union of India, 1982that, while the notion of “equal pay for equal work” is not officially recognised a basic right by our Constitution, it is unquestionably a constitutional goal under Articles 14, 16, and 39 (c) of the Constitution. As a result, in circumstances of unequal pay scales based on unreasonable categorisation, this entitlement can be enforced.
Article 19(1)(g) of Indian Constitution
The ability of citizens to form groups and unions is discussed in this Article. However, in the interests of public order, morality, or India’s sovereignty and integrity, the State may put reasonable restrictions on this right through legislation. The right to create an association includes the right to form or not to form, and to join or not to join.
Article 21 of Indian Constitution
The scope of Article 21‘s right to life is vast. The right to livelihood is an equally vital aspect of that right because no one can exist without the means of life. If the right to livelihood is not considered a part of the constitutional right to life, the simplest method to deprive someone of their right to life is to take away their means of survival. So, if an employee does not receive his rights, it is a violation of his right to life.
Article 39(a) and 41 of Indian Constitution
Articles 39(a) and 41 provide equally important principles for understanding and interpreting the meaning and content of basic rights. It would be simple pedantry to omit the right to livelihood from the content of the right to life if the state has an obligation to provide persons with an appropriate means of living and the right to employment.
The laws enacted for employment purposes are listed below:
The Factories Act, 1948
A considerable percentage of the country’s population works in manufacturing. In light of this, the Factories Act was enacted to control the working conditions of industrial workers in places where manufacturing operations are commonly performed. The Factories Act is a comprehensive piece of legislation that addresses factory workers’ health, safety, and welfare.
Industrial Dispute Act, 1947
The Industrial Dispute Act only applies to workers. It covers industrial disputes, industrial activities such as lockouts and strikes, layoffs, retrenchment, and undertaking transfers, as well as changes in workmen’s service conditions and workplace.
Payment of Wages Act, 1936
The Payment of Wages Act, 1936 (the Salary Act) governs the manner of paying wages to employees whose monthly wages do not exceed Rs. 24,000 and factory and industrial workers. The Wages Act advocates non-deduction of wages of any kind, save for some mandatory deductions like income tax, fines, and deductions due to absence from duty.
Minimum Wages Act, 1948
Each employee in India is entitled to a minimum pay under the Minimum Wages Act, which allows them to maintain their standard of living and access required services.
Article 23 of the Indian Constitution prohibits anyone from earning less than the minimum wage. Forced labour occurs when someone is forced to work for less than the minimum wage, which is prohibited by the same Article. The minimum wage is set by both the Central and state governments based on the following criteria:
Region
Living costs
Work type
Working times
How much may the employer pay?
Employees Provident Fund and Miscellaneous Provisions Act, 1952
One of the most important pieces of legislation dealing with employees’ social security is the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (EPF Act). According to the EPF Act, both the employer and the employee must contribute a minimum of 12% of the employee’s ‘basic salary’ to the EPF fund. Furthermore, the employer’s payment is allocated towards the employee’s pension fund, and the employee is entitled to a monthly pension upon retirement.
Shops and Commercial Establishments Act,1961 (S&E Act)
The S&E Act is a state-specific law, and practically every state has enacted one. The S&E Act oversees and governs the working conditions and practices of employees in shops and commercial enterprises, which comprises the majority of private businesses. Working hours, wage payment, leaves and holidays, overtime, and other issues are all covered under the S&E Act.
Contract Labour (Regulation and abolition) Act, 1970 (CLRA)
The CLRA governs contract labour in enterprises and permits its elimination in certain circumstances. A ‘workman’ is termed ‘contract labour’ if he is hired in connection with an enterprise’s work by or through a ‘contractor,’ with or without the knowledge of the ‘primary employer.’ Every contractor must be licenced under the CLRA Act and must only use contract labour in accordance with his or her licence. The contractor must provide restrooms, canteens, nutritious drinking water, bathrooms, washing facilities, and first-aid facilities. It’s worth noting that, under the CLRA, the principal employer is liable if the contractor fails to pay contract labour wages.
Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013
The provisions of this legislation, as well as the Indian Penal Code, protect women at work against sexual harassment. An internal complaint system for sexual harassment must be maintained by the organization.
The fundamental goal of the committee is to respect the law, and it takes fast action whenever an employee files a complaint. In general, the committee consists of a senior woman and other employees. They adhere to all rules, regulations, and policies in order to safeguard female employees from sexual harassment at work.
The Maternity Benefits (Amendment) Act, 2017
On April 1, 2017, the Maternity Benefit (Amendment) Act of 2017 (which revised the Maternity Benefit Act of 1961) went into effect. The following are significant changes:
Increased paid maternity leave for women employees from 12 to 26 weeks for the first two children;
recognition of the rights of an adopting mother and a commissioning mother (using a surrogate to bear a child) to claim paid maternity leave of 12 weeks;
a “work from home” option after maternity leave expires;
mandatory crèche (daycare) facilities for every establishment employing 50 or more employees, employers must also inform their employees about these perks.
Payment of Bonus Act, 1965
Any factory or organisation that is at least 5 years old and employs 20 or more employees in any accounting year is legally required to pay a bonus to its employees, according to the Payment of Bonus Act of 1965. Even if the number of employees starts falling below 20, the incentive will be paid. Employees earning less than Rs. 21,000 per month and working for more than 30 days in any accounting year are entitled to a bonus.
An employee can earn a bonus in one of two ways:
That year, the business was profitable.
The employee and the company have agreed that the employee will be paid a bonus based on his or her productivity.
In the matter of Officer in Charge, Sub Regional Provident Fund Office and Others v. M/s Godavari Garments Limited, the Supreme Court of India considered whether the term of employee is broad enough to include anyone who is directly or indirectly involved in the operations of an organisation. The Supreme Court’s division bench, addressing through Justice Indu Malhotra, stated that the EPF Act’s definition of an employee was broad enough to include everyone involved in the establishment’s activities, either directly or indirectly.
Employee rights can only be determined if a person is identified as an ‘employee’. As a result, the Supreme Court’s discussions are crucial in determining who qualifies as an ‘employee’.
According to the Factories Act of 1948, every employee has the right to a healthy and safe working environment.
According to the Employees Compensation Act, 1923, if the employer fails to provide safe working circumstances as a result of which the employee is affected, the employer must compensate the employee in full.
An employer has the authority to terminate an employee’s employment with or without cause if the employee’s work is unsatisfactory or unsuitable for the position. In this case, the employee has the right to request a review as well as written reasons for termination.
An employee’s entitlement to an employment agreement in India is to get one that clearly defines the employee’s title, compensation, working hours, job description, terms of resignation, and/or any other relevant data throughout the duration of employment. An employee has the right to know the specific terms of their employment.
Article 16(2) of the Indian Constitution ensures the right to work without discrimination. It states that no citizen may be discriminated against on the basis of religion, sex, caste, creed, gender, place of birth, descent, employment, or any other factor.
Conclusion
An employee’s legal rights have been thoroughly outlined above. Every employee has some basic rights and responsibilities in their work. Knowing these employees’ rights can help to establish a warm and comfortable work environment. Multiple provisions have been included in Indian employment laws to protect the interests of employees, some of which are the right to privacy, fair compensation, paid time off, financial benefits and other rights.
Frequently asked questions-
What are the basic employees’ rights in India?
Employees are those who are hired or engaged by another person or organisation to do a certain task. They have a number of important rights, including a regular pay, the right to health and safety, specific leaves, maternity benefits, a provident fund, and protection from sexual harassment, among others.
What actions can be taken against an employer who fails to pay their employees on time?
The Payment of Wages Act of 1936 mandates that an employee’s salary be paid promptly. Employees can submit a legal complaint or contact the Labour Commissioner if payment is not made. The Payment of Bonus Act of 1965 mandates that any business or corporation that is five years old and employs 20 or more people in any accounting year pay a bonus to its workers.
What are maternity leave rights in India?
The Maternity Benefit Act of 1961, which provides prenatal and postnatal benefits to female employees in India, entitles women to leave. During pregnancy, female employee is entitled to leave for 26 weeks. Women employees, in particular, are entitled to an eight-week post natal paid maternity leave. As a result, no pregnant female employee can be fired or discharged during her pregnancy; nevertheless, if she is fired for that reason, she is entitled to maternity benefits.
Which law provides protection against sexual harassment for employees?
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013 ensures this protection. If a business has 10 or more employees, the Act mandates the formation of an Internal Complaints Committee to handle sexual harassment complaints. Sexual harassment is punishable by up to three years in prison, with or without a fine, under the Indian Penal Code.
Which laws govern the protection of private sector employees’ rights in India?
Employees in the private sector are protected by laws such as the Indian Contract Act, Indian Penal Code, Labour Legislation, and other laws mentioned above.
Is taking leaves a right of employee in India?
Annual leave, Maternity and Paternity Leaves, and Sick Leaves are all distinct types of leave policies that different firms have for their employees. Employees in India have rights to several types of leaves under Indian law, and most companies have a detailed leave policy and calculation mechanism in place.
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This article has been written by Gauri Saxena, an LLM student from Dr. DY Patil College of Law, Navi Mumbai. This article covers exhaustive research on the current situation, awareness, solutions, and everything you need to know about patient rights in India.
India is a country where most of us go to a doctor or a hospital only when there is an emergency. In such cases, the doctor’s word is considered final and whatever he explains is considered to be the paramount truth. In the current paternalistic framework, patients have little say in their treatment as all the important decisions are taken by the doctor. Furthermore, there are instances of over-hospitalization, excess medications that patients are getting without their acknowledgment or proper knowledge, unjustifiable laboratory tests, and the list goes on. As a healthcare consumer, it is a patient and his relative’s right to know everything related to their treatment.
Patient Rights in India
The Code of Ethics Regulations, 2002, has a duty-centric approach as it mainly deals with the duties of physicians in general, to their patients, during the consultation, to the public and paramedical profession, and the responsibilities of physicians to each other, in addition to a few rights of the patients. The Consumer Guidance Society of India states nowhere about the right to refuse treatment, which means once a doctor has begun with treatment, the patient cannot refuse to get treated and the only escape he has is to ask for a second opinion.
Patients and their relatives are not informed about the diagnosis, illness, and line of treatment. Even if they are informed, they do not fully comprehend the situation due to the difficulty of understanding medical terminology, which is not simplified by doctors when explaining to patients. There is a varied medical system in India in which the private medical system dominates, giving rise to an intense mistrust between both the private and public healthcare systems, which impedes the standardization of treatment outcomes and affects patients’ rights in general.
The Indian medical system is disproportionately divided between private and public sectors. As per a report, in the financial year 2020, 70% of the hospital market share was controlled by the private sector, which has grown significantly over the years across a multitude of sectors such as the pharmaceutical industry, blood banks, hospitals, etc. The main area of concern for the private sector is providing secondary, tertiary, and quaternary care institutions in tier-I and tier-II cities. While the government, i.e., the public sector’s main area of concern is providing basic healthcare facilities in secondary and tertiary care institutions.
In contrast to massive growth in the private sector across all regions and rising usage, there is no effective system for regulation or mandatory assistance of benchmarks for standard care. This is a difference from the public health sector, which has standards for all amenities, from hospitals to dispensaries. Both sectors lack institutional and regulatory mechanisms. According to some studies conducted over the last two decades, over-prescription of drugs, lack of standardization of fee structure, excessive use of technology in diagnosis, and poor record-keeping are widely observed, and the money spent by patients does not guarantee them quality services and care.
Patients and their relatives must understand that healthcare providers are responsible for the facilities they provide.
Levels of healthcare
Patients often hear doctors mentioning the following healthcare levels, which not many of us understand:
primary,
secondary,
tertiary, and
quaternary
Doctors have used these classifications for decades to differentiate between the intricacies of illness and the amount of care required. Knowing about these various types of healthcare levels can make a patient understand the severity of their disease or lack thereof. In simple terms, if your doctor tells you that you require a particular level of healthcare, you will immediately know how severe your illness is and the kind of treatment you will require.
Primary care
It is a type of general medical care in which a patient is usually examined by a physician or a general practitioner because the severity of the problem in such cases is not too intense. It is the first level of care provided to patients when they have health complications or needs.
Secondary care
The secondary care level begins when a patient is referred to a specialist by his or her physician. A specialist is a doctor who looks into a particular organ system to treat the disease related to it.
For example, a nephrologist is a kidney specialist who can look into all kinds of health issues related to the kidneys.
Tertiary care
It comes into the picture when a patient is admitted to the hospital and requires a higher standard of care and monitoring as it is not related to a particular part of the body. The patient’s bodily functions are constantly monitored by medical equipment, and he is provided with advanced medical treatment.
Quaternary
Quaternary care is the final type of care provided to a patient. It is an extended version of tertiary care, which is not available in all hospitals as it requires sophisticated equipment and extremely advanced procedures. It is provided only when traditional treatments have been unsuccessful in improving a patient’s condition. At times, the patient also undergoes clinical trials and experimental medications.
Throughout their lives, most people only go through primary and secondary medical care, but in the event of an accident or severe injury, patients are provided with tertiary care.
Legislative provisions for patient rights in India
The pandemic has revealed some significant shortcomings in India’s healthcare system. Much of this is attributed to India’s low public health spending, which is lower than in most other countries. Another important reason for India’s poor public health is the lack of a legal framework that guarantees the fundamental right to health.
The Indian Constitution has no explicit mention of a fundamental right to health. However, the Constitution does make references to public health and the role that the states are required to play in providing healthcare to citizens under some of the Fundamental Rights and the Directive Principles of State Policy under Part IV of the Indian Constitution that serve as a foundation for the right to health with the help of the following Article:
NOTE: The term “patient” is not defined anywhere in Indian law. However, the term includes all those who obtain medical care from doctors and medical professionals. The Union, as well as every state, must be providing healthcare services to enhance public health.
Landmark judgements around patient rights
In the case of Rakesh Chandra Narayan v. State of Bihar (1988), the issue before the Supreme Court was based on the appalling conditions in a Ranchi mental hospital, and a petition was filed under Article 32 of the Indian Constitution. The Court held that the government has to ensure medical attention is provided to every citizen.
In the case of State of Punjab & Ors v. Mohinder Singh Chawla (1983), the respondent’s hospital bill reimbursement of ₹1,29,000 was rejected by the petitioners, who themselves had referred the respondent to get treated at AIIMS, New Delhi, due to the unavailability of valve replacement in Punjab State Hospitals. The Supreme Court upheld that the right to health is an integral part of the right to life under Article 21 of the Indian Constitution, so the government has a constitutional mandate to provide health care.
In the case of Ms.Nisha Priya Bhatia v. the Institute of HB & AS, GNCTD(2014), the question before the Commission was whether the appellant had a right to information and a right to access her medical record that was with the respondent institute. It was held that it is a patient’s right to procure his or her medical record under the following:
Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations 2002
Consumer Protection Act, 1986
It is a doctor’s responsibility to establish a framework where the patient is provided with the medical reports by default (i.e., without his asking).
The Charter of Patient Rights
Hospitals can be centers of hope and restoration, but they can also be sources of great distress and financial hardship for many people. When a loved one is critically ill or injured, we tend to have complete faith in a hospital and its doctors. It is not always true that anyone takes advantage of this situation, but everyone must be aware of their rights at all times.
This Patient’s Rights Charter draws on all pertinent provisions, captivated by international charters and supervised by national level provisions, to consolidate these into a single document and make them publicly known coherently.
Objectives
Uniform regulations throughout India
Till now, India does not have specific laws related to patient rights in all the states. Some states have adopted some different acts to meet the need, while some are in the process of adopting such regulations.
The Patient Rights Charter wants to create awareness among Indian citizens in consideration of their rights as citizens, the kind of treatment, healthcare, and prescription they deserve, and the role of the government and healthcare systems in providing them so.
List of patient rights
Right to information
Every patient has the right to know about his or her illness, its cause, diagnosis, and further explanation in the language known to him or her by the healthcare provider in simple terms and language.
The patient has the right to know the cost of his treatment in writing, and he should be given the bill at the end of his treatment with a reasonable explanation.
The patient and his caregivers (or relatives) can freely know about the identity, qualifications, and professional status of the healthcare providers they have around them and the doctors or experts treating him for their knowledge and convenience, in writing with acknowledgment.
Right to records and reports
Every patient or his caregiver has the right to obtain originals or copies of case reports, indoor patient reports, and investigation reports within 24 hours at the time of admission and within 72 hours post-discharge once the payment of photocopies for such reports is made by the patient or his caregiver.
The hospital management is responsible for providing the patient’s caregiver (or relative) with a discharge summary or death summary in the event of the patient’s demise.
Right to emergency medical care
Every patient has the right to receive basic emergency medical care in both public and private hospitals. All hospitals are bound to provide such care without compromising safety and quality. Such emergency medical care should be initiated without asking for payment or advance.
Hospital management has to ensure that the said care is being provided to patients.
Right to informed consent
Every patient has the right to give consent before the initiation of any critical or complicated treatment or test. Doctors and healthcare providers must not proceed unless such consent has been obtained, for which a proper policy should be drafted along with a consent form mentioning the risk involved in the given treatment or test.
It is the responsibility of doctors to explain to the patient or his caregiver in simple language the risk and everything else related to the procedure involved, and only then give consent in writing.
Right to confidentiality, human dignity, and privacy
A doctor has to uphold the privacy of his patient’s illness, treatment, and other related issues. Under no circumstances should the data related to a patient be leaked and hence kept in safe custody. Patients’ information can be disclosed only if it is necessary to do so.
Female patients have the right to get diagnosed by a male doctor in the presence of another female person. The hospital management has to make sure that the female patient is paired with another female person at the time of her diagnosis.
Right to a second opinion
Every patient or his caregiver has the right to get a second opinion, for which the current doctor or hospital should provide the patient with all the necessary test reports at no extra charge that would be required during the second opinion.
There should not be any drop in the quality of services provided by the hospital and doctors solely because the patient took a second opinion. Any biased activity will be considered a violation of human rights.
Right to transparency in rates, and care according to prescribed rates wherever relevant
Every patient and his caregiver have the right to know the cost of all the services and facilities that will be provided by the hospital on an obvious display board and in a brochure. Every hospital and clinic must display the key rates on a board, which is easily spotted by everybody in English and the local language. The patient and his caregiver are authorized to receive a detailed bill while making the payment.
In the hospital, no patient shall face discrimination based on HIV, cancer, other medical conditions, gender, caste, community, region, religion, ethnicity, sexual orientation, linguistic or geographical origin, or age.
Hospital management must make sure no such bigotry takes place and routinely instruct their doctors and medical staff about the same.
Right to safety and quality care according to standards
Every hospital is bound to provide safety, security, quality treatment, and care to its patients, along with clean drinking water and a healthy environment that is infection-free according to the current standards of the National Accreditation Board for Hospitals (NABH).
Every patient has to be attended to with consideration and professionalism without compromising medical principles. Patients or guardians can seek redress in case of any negligence from the hospital’s side.
Right to choose an alternative treatment option if available
Every hospital must brief the patient and his guardian about an alternative treatment option whenever one is available and respect the patient’s choice. It is up to the patient to choose the line of treatment he wants for himself after looking into all the available options and their pros and cons, and his decision has to be respected.
Hospital management is not responsible for the condition of a patient if he or she decides to leave the premises and the care that was being provided.
Right to choose the source for obtaining medicines and tests
Patients and their caregivers are free to choose the pharmacy and diagnostic laboratory of their choice, provided the lab has qualified personnel and is accredited by the National Accreditation Board for Laboratories (NABL). This will not affect the quality of treatment provided by the hospital and healthcare staff.
Right to proper referral and transfer, which is free from perverse commercial influences
When a patient is being transferred from one healthcare facility to another, the patient and his caregiver must be updated with all the grounds for doing so, and the receiving hospital must give assurance that the said patient is being admitted with care and quality. There can not be any negligence on the part of either hospital involved.
Such referrals must be made in the best interests of the patient and must be free of commercial considerations such as kickbacks, commissions, incentives, or other unscrupulous business practices.
Right to protection for patients involved in clinical trials
Every person who wishes to undergo clinical trials has a right to protection. All clinical trials must take place in conformity with the following:
The rights of patients in clinical trials are as follows:
The patient should always be informed of all pertinent trial information, and he should be given the original or copy of his signed consent form, which will serve as a document and proof of his participation in the clinical trial.
The patient’s participation is solely dependent on his approval, and if he declines to participate in the trial, it should not affect his regular healthcare or checkups.
He has to be informed about the name of the drug he will be taking, its dose, and administration.
The right to confidentiality is paramount here. Details of the participant along with the information he or she gives must be kept private and disclosed.
In the event of any health issue or adverse effect on the trial participant during the trial, he or she should be provided free medical care, irrespective of whether the fact it was due to the clinical trial or not, or till it is established that it was not due to the trial.
In the event of the participant’s demise, the dependents can claim compensation.
A trial participant has the right to receive additional care for a health problem that is not directly related to the trial but occurs during the trial period. He might be referred to some other doctor or healthcare facility if required.
Insurance schemes must cover illnesses related to or not related to the trial but taking place while the clinical trial is going on.
Trial patients or participants must be assured of getting the best healthcare facilities that may have been proven by the study.
Right to protection of participants involved in biomedical and health research
Patients involved in biomedical and health research are supposed to give written consent. In the case of vulnerable populations, more safeguards should be taken. The following rights of patients and communities should be protected:
In the event of any temporary or permanent impairment after the research, and the patient suffers physical, physiological, legal, or economic harm, he or she is entitled to financial or other respective assistance to restore himself.
Whatever benefits the hospitals obtain from the research should be made available to all the participants, communities, and population (whenever necessary).
Right to discharge a patient or to receive the body of a deceased patient from a hospital
The hospital management is responsible for ensuring that the patient is comfortably discharged from the hospital. The same goes in the case of the deceased, whose corpse can be taken by the caregiver even in the event of a payment that is yet to be paid.
Right to patient education
Patients need to be educated by the hospital or doctor about the following intricacies:
Facts that are essential to know about their condition
Healthy living practices
Right and responsibilities
Health insurance schemes related to them
Privilege in the case of charitable hospitals
Seeking redressal in the case of grievance.
Right to be heard and seek redressal
Every patient and their caregiver has the right to:
give feedback;
make comments;
lodge complaints.
The complaint has to be filed with the commissioned officer by the hospital and further with an official mechanism constituted by the government, such as the Patients’ Rights Tribunal Forum or Clinical Establishments Regulatory Authority, as the case may be.
A registered number must be provided at the time of filing the complaint. Robust tracking is one of the key features. The patient and the caretaker are entitled to receive the outcome of their complaint within 15 days in writing. There has to be an internal redressal mechanism in every hospital and clinic.
Rajasthan’s Right to Health Bill
Rajasthan is the first state in India to come up with an exhaustive Bill to protect the rights of patients, their health, and good governance in the medical sector.
As per the Bill, there will be free consultation, medication, emergency treatment and care, and diagnosis at all public (government) hospitals for the 8 crore population of Rajasthan.
Salient features of the Bill
Rights of the residents
Informed consent and confidentiality.
Safe and quality treatment is to be available at all government and private hospitals.
Free of cost medical consultation, drugs, emergency treatment, care, and transport as per prescribed standards.
Free or reasonable care for surgeries at all government hospitals.
Free assistance from private hospitals that were established through a land allocation at concessional rates according to the condition of the land allotment.
To collect information to make themselves healthy.
Obligations of the government
To develop and institutionalize a human resource policy for health for equitable distribution of healthcare staff across hospitals within six months of the enactment of the bill.
Social audit and grievance redressal mechanism.
Guaranteeing quality and safety at all levels of hospitals within one year.
To ensure that there is no direct or indirect denial of assistance to anybody for any government-funded healthcare service.
The appropriate state budget for health.
Constitute adequate measures to prevent, treat, and control epidemics and other public emergencies.
Setting up state and district level health authorities.
Government health insurance schemes
Before we proceed further to learn about the various schemes, we should first know what we mean by government health insurance schemes. These are central or state-sponsored systems that provide health coverage at an affordable rate.
Ayushman Bharat
Also known as Pradhan Mantri Jan Aarogya Yojna (PMJAY)
Ayushman Bharat is one of the biggest healthcare schemes funded by the Government of India. It marks a move from a selective approach to a broader approach. It covers complicated treatments such as knee replacement, prostate cancer, double valve replacement, and skull surgery, to reach more than 50 crore Indians. It covers up to 15-days of post-hospitalization expenses. It comprises 1393 medical treatments.
Aam Aadmi Bima Yojana (AABY)
AABY covers all citizens who fall under the low-income range and provides coverage to either one earning member or the head of the family. ₹75,000 is entitled by the beneficiary or family member in case the policyholder losses an eye, or limbs. It provides the beneficiaries under the following circumstances:
Death due to natural causes or accidents, permanent or partial disability.
The Universal Health Insurance Scheme (UHIS)
This scheme was implemented to shield the neediest families in the country. It provides up to ₹30,000 if a family member is admitted. In the case of an earning member, the amount is ₹50 per day for a maximum of 15 days. UHIS is available to both individuals and groups.
NGOs working towards healthcare in India
Our government is not alone when upgrading the healthcare system. Various NGOs across India are working day and night to help the citizens. Here is a list, to name a few:
Rural Health Care Foundation
They are working towards bridging the gap between the availability of low-cost medical care in rural and urban areas of underprivileged classes.
CanKids KidsCan
It is a nationwide NGO working towards childhood cancer. They provide all the aid right from detection to treatment and post-treatment. They have partnered with 113 cancer centers across India.
The following countries have the best of everything: from patients’ rights to the hospital or doctor’s obligations, fee structure, insurance, etc. Some of them are listed below:
France
France has one of the best healthcare facilities in the world. The government is said to reimburse most of the amount a citizen pays to the doctor. The mortality rate in France from cardiovascular diseases has reached its lowest among OECD countries after Japan.
Litigation and settlement in the event of disputes
Germany
Germany is said to have the most advanced medical system due to a large number of medical technology universities. It keeps costs and waiting times low due to its collaborative system of public and private institutions.
Doctors are bound to store and keep all the files of their patients.
Free choice of hospital, even after the doctor has recommended a few to the patients.
Workplace sickness benefits.
Every patient can choose their rehabilitation facility.
Singapore
Singapore has the highest status in the healthcare department outside Europe. It is renowned for its efficient system with great public insurance plans that cover a great amount during large procedures.
Right to know the approximate cost of the treatment.
United Kingdom
The UK is famous for its universal government-run system, which is one of the best in the world. However, it is slightly behind the other European countries.
The National Health Service (NHS) is a publicly funded healthcare system that covers the patient rights of its people. To name a few:
Right to receive free NHS services.
Right to have a complaint acknowledged and action taken within three days.
Right to expect the NHS to constantly improve the quality of services.
Right to be given detailed information about the treatment and reports.
Japan
The lifespan of the Japanese is the highest in the world. One of the reasons could be the excellent and efficient healthcare system that is dedicated to serving its people.
Its Statutory Health Insurance System (SHIS) covers 98.3% of the population, while the remaining 1.7% is covered by another public social awareness program. SHIS covers treatments like mental health, dental care, and various other problematic areas that are not usually covered. Some of the patient rights are:
Right to have the medical reports stored discretely.
Right to be thoroughly informed of the treatment in simple language.
Right to receive quality care irrespective of the condition he or she is going through.
Right to a healthy and smoke-free environment.
Issues with the existing system
Prevalent discrimination
When it comes to seeking care, prejudice based on caste, creed, gender, or even physical issues is well known. Discrimination in the past has included not just incidents where medical care was inadequate or nonexistent, but also cases where patients were exploited to obtain basic checkups. The severity, timing, and even dimensions of incidents vary.
Lack of consent
When patients are admitted to various government hospitals, they are required to give consent, authorizing the doctor to do any procedure he considers appropriate. However, the legitimacy of this action is in doubt.
Indian courts currently use the approach of “true consent,” which favors doctors. Western courts, on the other hand, take a “reasonable patient” approach.
No transparency
Patients are not only overpaid for services; they are also unaware of what they are paying for at times.
Doctor-patient ratio
This ratio is 1:834 as of 2022. However, there is no system to find out how many doctors are really practicing in India. There is no mechanism to track them.
Poor infrastructure
According to a report, some internationally famous institutions in India have a substandard infrastructure. However, it is not a problem that only India faces. Geographic diversity, medical errors, and other factors affect both developing and developed nations’ quality.
While infrastructure restrictions have traditionally been linked to quality care, the issue is more than just the accessibility of clinical facilities. Although they may assume they are offering The health system’s sub-party quality is due to their lack of ability or understanding of the actual concept of quality infrastructure.
By encouraging and supporting essential procedures and employing systems that enable flexible delivery, the objective of providing better, faster, more advanced, and less expensive healthcare can be achieved.
Reducing the doctor-patient ratio
The government has planned to bring the doctor-patient ratio to 1:1000 by 2024 (according to the WHO standards). The budget for the health and family welfare department has been increased by 50.5 percent.
Focusing on patients
A crucial determinant of quality is the extent to which patients’ desires and expectations are realized. Customized services that meet the needs and wants of patients encompass:
the well-being of patients.
synchronization of treatment with various elements of healthcare services.
patient-centered healthcare and cultural sensitivity.
language-friendly communication and treatment.
Conclusion
Dealing with prejudice and ill-treatment is not only the responsibility of practitioners but also of hospitals and healthcare staff. The Patient Rights Bill is a comprehensive solution to the existing lacunae in our system. Waiting for every state to draft and enact patient rights bills is a long journey. What is more important here is to learn from the other countries’ policies and make India an affordable yet quality center of healthcare for the world. Hospitals should draft their policies keeping innocent patients in mind and treat them as their people, as a doctor has to serve the people, and serving is best done to make a change in the other person’s life.
Frequently asked questions (FAQs)
Who is responsible for implementing the Charter of Patient Rights in India?
“Health” is a state subject in India. Therefore, states and union territory governments have to implement the Charter of Patient Rights.
Who is eligible for government health insurance schemes?
It is available to people in the low-income range only.
Are health checkups covered under AB-PMJAY?
No, health checkups are not included in AB-PMJAY
Can I use my Aadhaar Card while applying for any of the government health schemes?
Yes, you can either use your Aadhaar card or any other identity card while enrolling yourself.
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This article has been written by Naveen Talawar, a student at Karnataka State Law University’s law school. The article talks about Section 279 of the Indian Penal Code in detail.
Negligence, without a doubt, has no goal or intention for a certain consequence. There is always a hurried activity performed without adequate thinking and prudence. It causes an outcome that the perpetrator did not foresee and for which he may later be regretful. But he is penalized not for the result which he could not have predicted, but for the method in which he performed the dangerous deed. Even if the phrases ‘rash’ or ‘negligent’ are fairly similar, they are distinct. The perpetrator violates a positive obligation by failing to disclose the conduct for which he is responsible; this occurs in circumstances of negligence. In his rush, the party commits an act that he is obligated to refrain from and thereby violates a negative duty. He refers to the conduct, but not to the consequences of the act. A person driving a car into a crowd understands what he’s doing, but he hasn’t adequately considered the consequences of his actions. He is overconfident, which causes him to believe that nothing bad would happen to him. Section 279 of the Indian Penal Code, 1860 is concerned with rash and negligent driving of a vehicle or riding on a public road in such a way as to risk human life or cause harm or injury to any person.
Rash and negligent driving
When a driver disregards traffic regulations, he looks to be driving rashly and negligently. Rash and negligent driving is usually the result of the driver’s carelessness. Carelessness may be used to determine rashness or negligence on the side of the driver under Section 279 of the Indian penal code; however, just driving at a high speed does not constitute rash driving. When the driver is capable of controlling the vehicle’s high speed or when the road on which he is travelling appears vacant, his actions are not considered rash or negligent.
It is essential to comply with the maximum speed limit, especially on highways. Overspeeding a vehicle over the permissible limit is a violation under Section 279, which is usually set by the Ministry of Road Transport and Highways. This is because speeding on public roadways endangers your life and the lives of others. It is worth noting, however, that exceeding a vehicle’s speed limit is not considered careless driving. Similarly, overspeeding a car, while there is no traffic on the road, is not considered rash and negligent driving.
Ingredients of Section 279 IPC
The Section necessitates two things:
Driving or riding in a public way
Such driving or riding must be rash or negligent to the point of endangering human life or causing harm or injury to others.
Rash or negligent
Rash or negligent driving must be assessed in the context of the facts and circumstances of each case. It is a fact that cannot be interpreted or seen in isolation. Thus, the preliminary conditions are
how the vehicle is driven;
whether it is driven rashly or negligently; and
whether such rash or negligent driving endangers human life.
Endanger human life
It must be proven that the accused was driving the vehicle in a public place in a way that endangered human life or was likely to cause harm or injury to others. It is not necessary that the rash or negligent act should result in injury to life or property.
Applicability of Section 279 IPC
To establish an offence punishable under Section 279 of the IPC, it must be proven that the accused was driving the vehicle on a public road in a rash and negligent way, threatening human life or likely to cause harm or injury to another person. It is forbidden to take the danger of conducting such an act carelessly or without regard for the consequences. Criminal rashness and criminal negligence have to be similar. It can’t just be carelessness or an error in judgment. To be convicted under this provision, it must be shown that the accused was driving the vehicle on a public road in a manner that endangered human life or was likely to cause harm or injury to another person.
The meaning of criminal rashness and negligence was defined in Empress of India v. Idu Beg [1881] as follows: “criminal rashness is hazarding a dangerous or wanton act with the knowledge that it will cause injury but without the intention to cause injury or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the willful and culpable neglect to take reasonable and proper care and precautions to avoid injury to the public in general or to an individual in particular, taking into account all of the circumstances surrounding the charge”
When the charge against the accused is rash driving rather than negligent driving, the only question is whether the accused was driving at a reckless speed and, if so, whether the speed was such that it endangered human life or was likely to cause harm or injury to another person. Even if the road is empty or not used by any pedestrians or vehicles, reckless driving is still illegal under this Section. In State of Karnataka v Santanam, [1997] the Karnataka High Court found military personnel guilty of rash and negligent driving after he drove a military truck in a wayward manner and crashed a two-wheeler, killing him and causing two other accidents on the road. It was held inBadri Prasad Tiwari v. The State, [1993] that a mere error in judgment does not constitute a rash and negligent act.
Nature of Section 279 IPC
The offence punishable under Section 279 of the IPC is a cognizable Offence, which means that the police can arrest someone for a crime without a warrant, but such Offences are bailable. The issuance of bail in a bailable Offence is a matter of right. The right can be given by a police officer holding the accused in custody or by a court with discretion, and it is triable by the Magistrate who has jurisdiction over the region where the crime was committed.
Punishment for an offence committed under Section 279 IPC
A person who commits a crime under Section 279 of the IPC by rash driving on a public way faces a maximum penalty of six months imprisonment, a fine of up to 1000 rupees, or both. The duration of imprisonment and penalties will be determined by the severity of the Offence.
The Court held in Dalbir Singh v. State Of Haryana [2005], that one of the primary considerations for deciding the appropriate sentence for causing death by rash or negligent driving of vehicles should be deterrence.
According to the court, one of the most efficient ways of keeping drivers under mental surveillance is to have a deterrent effect in the area of punishment. Any amount of freedom in that area would convince them to turn driving into a game. It was decided in State Of Punjab v. Balwinder Singh [2012] that if the prosecution can prove guilt beyond a reasonable doubt, courts must investigate all relevant facts and circumstances before deciding on a sentence and imposing a term that is suitable for the offence.
Rash driving or riding on a public way under Section 279 IPC
There are three essential things that must be known in order to understand this provision. Section 279 of the Indian Penal Code makes it illegal to drive a vehicle on a public road in a rash or negligent manner that endangers human life or is likely to cause harm or injury to anybody.
For instance, if a person drives a vehicle on the road without necessary care and attention, he is guilty of violating this Section. It is important to note that the individual was driving without taking the precautions that a prudent person would have done. There are three essential things that must be known to understand Section 279.
Rash driving or riding – Section 279 makes it illegal to drive a vehicle on a public road in a rash or negligent manner that endangers human life or is likely to cause harm or injury to anybody.
Public way– Any road or passage that is open to the public is referred to as a public way. It is seen as either a direct connection to a town or a route between towns.
Rash or negligent driving– In law, the phrase ‘negligent’ refers to an omission to do something that a reasonable and wise person led by common human-interest considerations would do, or something that a prudent and reasonable person guided by similar considerations would not do. This principle was held in the case of Ravi Kapoor v. State of Rajasthan [2012].
In cases of rash or negligent driving, rash or negligent behavior doesn’t need to cause injury to a person’s life or property. In many cases, speed is not the most important factor in establishing whether a driver was reckless or negligent. Even if a person is driving a vehicle at a slow speed but negligently and recklessly, it would amount to rash and negligent driving under this provision. The relationship between speed and rashness or recklessness is location and time-dependent in this circumstance.
For example, on a straight road with no other cars or pedestrians, it is impossible to say that driving at a high speed or failing to blow the horn constitutes rashness or negligence.
It was stated in State of Himachal Pradesh v. Amar Nath [2018] that, an accused person cannot be held accountable for death caused by misadventure if he did not drive or rashly or negligently. On the other hand, even if no one was wounded, he would be accountable if his driving was such that it made the cause of harm or injury possible, or if it put people’s lives in danger. In determining whether a person is rash or negligent in driving, driving at an excessive speed on a public road may be a prima facie proof of rash driving.
How is Section 279 related to Section 304A, 337 and 338 of IPC
The Indian Penal Code has provisions for penalizing acts of negligence and rash driving apart from Section 279, which are as follows::
Section 304A IPC
Section 304A of the IPC deals with causing death through negligence or rash conduct. If a person causes the death of another person by negligent or reckless behavior that does not amount to culpable homicide, they face up to two years in prison, a fine, or both.
The four primary conditions that a person must meet in order to do a negligent act are as follows:
Duty: The defendant must accept some responsibility for negligent behavior. It is essential to evaluate if the defendant has a legal duty of care to the plaintiff.
Breach of Duty: The plaintiff must establish that the defendant breached a legal duty owed to him/her. A legal obligation owed to him or her. It explains the defendant’s breach of duty, which he/she is expected to do because he/she owes the plaintiff some legal duty.
The action of causing something: The plaintiff has suffered harm as a result of the defendant’s actions. The defendant may do an act that was not anticipated of him or be negligent in failing to perform an act that was required of him.
Damages: The plaintiff must have suffered some sort of injury as a direct result of the defendant’s acts.
Section 304A has the following essential components:
A person must die
the death must be the result of the accused’s actions;
the death must be the result of the accused’s negligent act, and
the accused’s act must not constitute culpable homicide.
The rule applies where there is a direct relationship between the accused’s rash or negligent conduct and the death of the person in question. The behavior must be the direct cause of death.
Section 337 IPC
Section 337 of the Indian Penal Code forbids “causing hurt by an act endangering the life or safety of others.” The offence is punishable under this clause if a person’s rash or negligence in performing a work endangers the safety or lives of others. Depending on the conduct performed, the penalty might range from six months in prison to a fine of five hundred rupees, or both. It is a cognizable and bailable Offence. It can also be compounded by the victims if the court permits.
The ingredients of Section 337 are as follows
Section 337 requires that the conduct be committed as a result of the offender’s haste or negligence. Under Section 304A of the IPC, the concept of rashness and negligence is defined in great detail.
The conduct had to have inflicted bodily harm and put others’ lives or personal safety at risk.
The reason for the act’s occurrence is not taken into account in this Section.
Section 338 IPC
This Section has been used to penalise those who cause serious harm to others by acting rashly or negligently and endangering their lives or personal safety. According to the Section, anyone who causes grievous harm to another person by acting rashly or negligently in such a way as to endanger either human life or the personal safety of others is punishable by simple or rigorous imprisonment for a term of up to two years, or a fine of up to one thousand rupees, or both. Section 338 is a cognizable, bailable, and compoundable offence that can be tried by any magistrate.
Relation between Sections 279, 304A, 337 and 338 IPC
A driver may be punished under Section 279 of the Indian Penal Code if his or her rash driving or negligence results in the death or physical injury of a pedestrian. The individual will also be charged with causing harm by an act endangering personal safety or the lives of others, as well as inflicting serious injuries by an act endangering personal safety or the lives of others, under Sections 337 and 338 of the IPC, respectively. And if the driver causes an accident negligently that results in the death of another person, then he will be charged under Section 304A of the IPC.
This clearly states that Section 279 of the IPC applies exclusively to rash and negligent driving in public ways that endanger the lives of others. If, on the other hand, the driver causes death or physical harm to another person, he or she is punished under Sections 337 and 338 of the Indian Penal Code.
In this regard, the Punjab and Haryana High Court held in one of its judgments that a truck driver who was driving his vehicle at a high speed rashly and negligently climbed the walkway and hit the deceased from behind, killing him. He was charged under Sections 279 and 337 of the IPC for his reckless and careless driving in a public way.
As a result, Section 279 only deals with and punishes a driver for rash and negligent driving on a public way that may endanger a person’s life; however, if the driver’s act causes actual injury or death, this Section will be read in conjunction with other Sections, such as Section 337 (causing hurt by act endangering life or personal safety of others), Section 338 (causing grievous hurt by act endangering life or personal safety of others), and Section 304A (causing death by negligence) under IPC.
How to file or defend a case under Section 279 IPC
There are two ways to file a case under Section 279 of the Indian Penal Code. A person can apply to lodge an FIR, under Section 154 of CrPC, with a police officer in charge orally or in writing. If the person has been denied the right to file an FIR by the officer in charge, he or she can send the information to the Superintendent of Police in charge, who will review it and, if satisfied that the information provided is a cognizable offence, will investigate the case or assign an officer lower than his Cadre. Whoever investigates the matter will have all investigation powers.
Another alternative is to submit a complaint with a magistrate under Criminal Procedure Code, Section 200. The magistrate must receive the complaint either orally in court or in writing. After receiving the complaint, the magistrate will hold a hearing and decide on the issue of cognizance.
Even if a vehicle is driven recklessly and negligently at a reasonable speed, recently the Kerala High Court determined that it is still regarded as ‘rash and negligent driving under Section 279 of the IPC.
The case was brought up suo moto by the Court after a Sabarimala devotee reported that the tractors used for goods transportation on the Sabarimala trekking path were endangering pilgrims’ safety; as a consequence, the Court took suo moto notice of the devotee’s objections. The Court stated that “A person who drives a vehicle on the road may be held accountable for both the conduct and the consequence. Even if one is driving a car at a modest pace yet recklessly and negligently, it is considered ‘rash and negligent driving under Section 279 of the Indian Penal Code.”
Landmark cases under Section 279 IPC
Braham Dass v. State of Himachal Pradesh
Facts
The facts of this case are, that the appellant is a bus driver for the Himachal Pradesh Road Transportation Corporation. The vehicle had come to a stop at a bus station along the journey. A passenger got off the bus and went to the roof to unpack some luggage. The driver started the bus while the passenger was on the roof, without waiting for a signal from the bus conductor and without checking if passengers who had alighted had boarded back and those who planned to get off had gotten off, resulting in the passenger on the roof falling from the moving bus and sustaining injuries. He was subsequently transferred to a nearby hospital, where he succumbed to his injuries.
Held
In this case, the Court stated that Section 279 deals with rash driving or riding in a public way. The accused must prove that he or she was driving any vehicle in a public area in a manner that endangered human life or was likely to cause harm or injury to another person, as per a basic understanding of this provision. Charges under Section 279 IPC are not based on negligence. As a result, before Section 279 can be used, it must be shown that there was an element of rash or negligence.
Ravi Kapur v. State of Rajasthan
Facts
The facts of this case are as follows: there were two jeeps heading to the wedding, and there was also a Maruti car ahead of these jeeps. A bus was approaching from the opposite side at great speed, so the driver of the Maruti car instantly shifted his car to one side to save himself, and the bus collided with one of the two jeeps. Some of the members died on the spot as a consequence of the terrible accident.
Held
In this case, the Supreme Court held that rash and negligent driving must be considered in light of the facts and circumstances of each case. It’s a fact that can’t be comprehended or viewed separately. It needs to be viewed in light of the surrounding circumstances. A person who operates a motor vehicle on the road may be held responsible for both their actions and the results. It’s not always easy to establish whether someone was driving recklessly or negligently simply on the speed of their vehicle. Both of these actions point to unusual behavior. Under Section 279, even driving a car at a slow speed but recklessly and negligently is termed “rash and negligent driving.”
Prafulla Kumar Rout v. State of Orissa
Facts
When students from Khantapade Girl’s High School were going home from school, a bus named ‘Madhabika’ driven by the accused ramped up, collided with the deceased ran her over and killed her instantly on the spot. The accused, who was driving the bus, left the vehicle and escaped.
Held
As the accident happened in front of the school, the Orissa High Court declared that drivers should be cautious and slow down when driving near educational institutions. The accused was found guilty under this provision.
Popat Bhaginath Kasar v. State of Maharastra
The Bombay High Court held in this case that when a person drives his vehicle at a high speed even though it is a densely populated and busy road, it is one of the shades of driving the vehicle in a rash and negligent manner.
State v. Gulam Meer
Issue
The issue of this case was whether it was correct that a person who engages in rash and negligent driving on a public road in a way that endangers human life cannot be punished for the crime under Section 279, IPC if such driving also injures another person.
Held
According to the Court, an offence under Section 279, I.P.C. differs from an offence under Section 337 or Section 338, I.P.C., and therefore a person convicted of an offence under Section 337 or Section 338, I.P.C. can also be convicted of an offence under Section 279, I.P.C. If the two offences, on the other hand, are committed in the same transaction.
Conclusion
Every day, more individuals died as a result of negligent or reckless driving. Dependents of victims are left with no means of support and are forced to beg on the streets. This has caused widespread concern in society since it puts many people’s lives at danger, particularly pedestrians. To reduce the rising number of fatalities, lawmakers must investigate, assess, appraise, and re-visit sentence policies underparts of the Indian Penal Code dealing with reckless driving.
Frequently Asked Questions (FAQs)
What is rash and negligent driving?
When a driver disregards traffic regulations, he looks to be driving rashly and negligently. Rash and negligent driving is usually the result of the driver’s carelessness.
What are the ingredients of Section 279 of IPC?
To establish an Offence punishable under Section 279 of the IPC, it must be shown that the accused was driving the vehicle on a public road in a rash and negligent way, threatening human life or likely to cause harm or injury to another person.
What is the nature of the Offence of Section 279 IPC?
The Offence punishable under Section 279 of the IPC is a cognizable Offence, which means that the police can arrest someone for a crime without a warrant, but such Offences are bailable.
What is the penalty for a violation of Section 279 IPC?
A person who commits a crime under Section 279 of the IPC by rash driving or riding on a public way faces a maximum penalty of six months’ imprisonment, a fine of up to 1000 Rupees, or both. The duration of imprisonment and penalties will be determined by the severity of the offence.
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This article is written by Sujitha S, pursuing law at the School of Excellence in Law, Chennai. This article tries to analyse the aspect of contracts dealing with the refusal of an offer of acceptance. It further briefs on the persons involved and its legal implications with relevant case laws.
Table of Contents
Introduction
There are certain conditions that must be followed in order to make a contract. Following the creation of the contract, the next stage is the fulfilment of the object that the parties intended. The responsibility of any party under the contract ends if the object is met. The performance of a contract is essential for its discharge. The most fundamental definition of performance is to fulfil the contract’s requirements. The general rule of performance is that a contractual commitment must be fulfilled exactly and entirely. According to common perception, performance entails carrying out all components of the contract that the parties have agreed to, and if all aspects are not met, the contract is not properly executed. As a result, the promisor must offer to execute his obligation to the promise. This is known as a “tender of performance.” The promisee then has to accept the performance. If he refuses, the promisor is not accountable for non-performance and does not lose his contractual rights. If the other party rejects the offer of performance, the other party has the right to sue for breach of contract. This article discusses the refusal of such an offer.
Performance of a contract
In India, Section 37 of the Indian Contract Act, 1872 clarifies the need to perform a contract’s obligations. Unless the performance is dispensed with or excused under the terms of the Indian Contract Act or any other legislation, each party is required to execute his or her responsibility under the contract. The Section also states the extent to which the promises bind the legal representatives of deceased promisors.
Illustration:
On payment of Rs. 1000, ‘A’ pledges to deliver products to ‘B’ on a specific day. Before that day, ‘A’ had passed away. The products must be delivered to ‘B’ by ‘A’s representatives, and ‘B’ must pay ‘A’s representatives Rs. 1000.
Obligation to perform
A contract provides a legal obligation that remains until it is discharged. The duty to perform is unwavering. The conditions of the agreement bind both parties. For example, the lessee cannot claim immunity from liability under the lease by claiming that his name on the lease was only Benami, and that the true lessee was his father. On the other hand, where all of the partners had signed documents in furtherance of the bank in connection with the loan on behalf of the firm, a simple declaration by one of them that he alone was liable to repay the loan would not bind the bank, because the bank had a contract with all of the principal borrowers. If the contract does not include a contingency, a party cannot claim extra consideration based on the fact that he had to spend more funds to handle the contingency.
In M/S. Kanoria Chemicals vs. U.P. State Electricity Board & Ors(1997), the electricity board published a notification requesting interest on late payments of power costs, which was delayed. But the petition was eventually dismissed. The petitioners sought to overturn the surcharge/interest demand, claiming that the sum could not be paid because of the stay order. The Supreme Court dismissed the writ petition, ruling that interim orders did not relieve the petitioners of their obligation to pay sums owed, nor did they prohibit them from paying the electrical rates.
In M. Kamalakannan vs. M. Manikanndan (2011), the purchaser of the property kept some money in order to persuade the seller to fulfil certain duties, such as evicting tenants and giving over empty possession. The relevant paperwork indicated that the transaction was a sale with consensus ad idem. The Madras High Court held that non-payment of a portion of the selling amount did not constitute a breach of contract since it was a completed contract.
In Geo-Group Communications Inc vs. JOL Broadband Ltd (2009), the parties signed an agreement that was completely implemented without the need for further documentation. The agreement was presented as a preliminary and unofficial copy for discussion purposes only. When there arose a dispute over the documentation, the Supreme Court determined that the agreement was complete and that the claimant was entitled to remedy.
Submission of tender is a proposal
It is a proposal, not a contract when a tender is presented in response to an invitation. It demands acceptance. The tender’s validity time is usually four months, as stated in the tender itself. Naturally, no acceptance can be made once the time limit has passed. In the case of Great Eastern Energy Corpn Ltd vs. Jain Irrigation Systems Ltd (2010), the Bombay High Court concluded that loss of the security deposit amount by accepting the offer after the validity time had expired and the tenderer had failed to fulfil was not lawful.
Promises bind representatives of the promisor
Additionally, the provision states that unless the contract expressly states otherwise, a promise binds the promisors’ representatives in the event of his death. In United India Insurance Co Ltd vs. Kiran Combers & Spinners, (2007), the insurer, being a representative, could not be awarded the benefit of any structural problem not observed by the company, since it had verified that the insured building was a first-class structure.
Further, the Orissa High Court decided in Smt. Basanti Bai vs. Prafulla Kumar Routrai (2006) that this concept would apply even if the promisor had left no legal successor. However, in this case, the appellant was not aided by this legal argument, since she had failed to prove the existence of the claimed agreement.
Offer of performance: tender
The promisor must make an offer to the promisee to fulfil his contractual obligations. This offer for performance is referred to as a ” tender.” The promisee must then accept the performance. The promisor is not accountable for non-performance, nor does he lose his rights under the contract if he refuses. In other words, if the other party rejects the tender for performance, the promisor is excused from further performance and has the right to sue the promisee for breach of contract. This is how Section 38 of the Indian Contract Act, 1872 operates.
In Jai Durga Finvest (P) Ltd vs. State of Haryana and Ors., (2004), the issue was related to the contract on the mining lease. This contract could not be completed due to certain acts and omissions on the side of the government. Hence, the Supreme Court of India did not permit the forfeiture of security money.
In United India Insurance Co Ltd vs. M/S. Pushpalaya Printers, (2004), the insurance includes, among other things, the protection of buildings in case of damage caused by “impact.” Eventually, a passing bulldozer inflicted damage to the structure without really touching it. The issue was whether the harm was covered by Insurance or not. The Supreme Court determined that the harm was caused by impact and that the insurance company is liable to pay the required.
Who must perform
Usually, the contract should be executed by the promisor himself, although it can also be fulfilled by his agents or legal representatives in specific circumstances. Normally, the following can perform a contract:
Promisor: If it seems from the nature of the contract that the parties intended for the promise to be completed by the promisor himself, such promise must be fulfilled by the promisor. This is most common in contracts involving individual skill, taste, or artistic works. For instance, ‘A’ agrees to paint a painting for ‘B’. This promise requires ‘A’s own expertise, it must be fulfilled by ‘A’.
Agent: When a contract does not require the promisor’s personal skill, the contract may be fulfilled by the promisor or any competent person hired by him for the purpose. For example, if ‘A’ promises to “pay ‘B’ a sum of money,” ‘A’ may fulfil this promise by paying the money personally to ‘B’ or by having it paid to ‘B’ by his authorised agent.
Legal representative: Contracts that do not need any individual skill or taste can be carried out by the promisor’s legal representative after his demise. For instance, ‘A’ agrees to deliver products to ‘B’ on a specific day in exchange for a payment of Rs. 2,000. ‘A’ passes away before the appointed time. ‘A’s legal representatives must deliver the products to ‘B’, and ‘B’ must pay ‘A’s legal representatives Rs. 2,000. If, on the other hand, the contract includes some personal skill or taste, it expires when the promisor dies.
Third person: A contract may be completed by a third party in some instances if the promisee agrees to the arrangement. Once the promisee accepts the performance of a third party, he cannot compel the promisor to fulfil the contract again, according to Section 41.
Performance of joint promises: When two or more people make a joint promise, Section 42 states that the joint promisors must keep the promises throughout their lives. If one of them dies, his legal agents and survivors must carry out the promise together. For example, ‘A’, ‘B’ and ‘C’ agree to pay Rs. 3,000 to ‘D’ jointly. ‘A’ dies, ‘B’ and ‘C’, as well as ‘A’s legal agent, are jointly and severally responsible to ‘D’ for the sum. The ‘devolution of joint liabilities’ rule is the name for this regulation. It is, nevertheless, subject to the requirement that the contract contains no other intention. In other words, if the contract reveals an opposite purpose, the rule stated above will not apply.
Who can refuse an offer of performance
Promisee
In several contracts, the promisee is the only person who may demand that the promise be fulfilled. Even though the contract was formed to his advantage, a third party cannot necessitate performance. For instance, ‘A’ pledges ‘B’ to pay ‘C’ Rs. 500. ‘B’, not ‘C’, is the one who has the authority to demand answers.
Legal representative
If the promisee dies, his legal representative can claim execution unless the contract expressly states otherwise or the contract is of a personal character. For instance, ‘A’ agrees to marry ‘B’. However, before getting married, ‘A’ dies. As it is a personal contract, ‘B’s legal representative cannot claim for the fulfilment of the pledge from ‘A’.
Third party
Even if he is not a party to the contract, the third party might demand performance in some extraordinary circumstances. In other words, even a stranger to a contract may enforce an obligation:
The beneficiary of a trust has the right to enforce the contract. In Nawab Khwaja Muhammad Khan vs. Nawab Husaini Begam (1910), Husaini Begam sued her father-in-law Khwaja Muhammad Khan for Rs. 15,000 in arrears of allowance known as Kharchi-i-Pandan-betel box expenditures (Pinmoney) owing to her by Khwaja Khan under an agreement established between him and her father, in consideration of her marriage to Khwaja Khan’s son. The bride and groom were both minors when they got married. The guarantee was held by the Bombay High Court to be enforced by Husauni Begam.
The provision of marriage expenditures for female members of a Joint Hindu Family operates on the same concept, entitling the female member to claim for such expenses on a split between male members as held inRukhminibai vs. Govind (2008).
In the case of an obligation or liability that results from a previous performance. For example, when ‘X’ gets money from ‘Y’ with the purpose of delivering it to ‘Z’ and acknowledges to ‘Z’ that he has received it, ‘X’ becomes ‘Z’s agent and is obligated to pay the money to him.
In the event of a family settlement, if the terms of the agreement are reduced to paper, family members who were not initially participants in the dealing may enforce the agreement as observed in the case ofShuppu Ammal And Anr. vs. K. Subramaniam And Ors. (1909)
When a person makes a joint promise to two or more people, the promise may be demanded either by
All the promisee jointly.
In the event of the death of any of the joint promisees, by the deceased person’s representatives, in concert with the remaining promisees.
In the event of the death of all joint promisees, by their joint representatives. As a result, joint promisees’ rights are solely joint, and none of them may demand performance unless it was previously agreed. For example, ‘A’ pledges B and ‘C’ to return them Rs. 5,000 plus interest on a specific date in exchange for a consideration of Rs. 5,000 lent to him by ‘B’ and ‘C’. ‘B’ dies. During ‘B’s lifetime, the right to claim performance is shared by ‘B’s representation and ‘C’, and after ‘C’s death, it is shared by ‘B’s and ‘C’s representatives.
Effect of refusal to accept an offer of performance
Section 38 states that if the promisee rejects the promisor’s offer of performance, the promisor is not liable for non-performance. The promisor will not be considered to have performed the duty if the promisee refuses to accept the performance. It liberates the promisor from having to execute that obligation. However, it does not cancel the contract. It allows the promisor to terminate the contract and sue for damages. It also lays out the requirements for a valid offer to perform, including the following:
It must be unconditional;
It must be made at an appropriate time and place, and under such conditions that the person to whom it is made has a reasonable opportunity to determine that the person is competent and willing to execute the entire thing he is obligated to do by his promise there and then;
If the offer is to deliver anything to the promisee, the promisee must have a fair chance to inspect the object given to ensure that it is the thing that the promisor is obligated to deliver under his promise.
Refusing a money tender does not relieve the debtor of his liability to pay. Indeed, he must remain ready and prepared to do so. The tender may serve as a good defence in debt recovery, exempt him from paying interest beyond the tender date, and entitle him to court fees.
The tender must be unconditional
The tender must not have any conditions attached to it. The tender should be open-ended. A tender must not only comply with the contractual requirements, but it must also be devoid of any conditions, as it is unreasonable to force the other party to accept an altered or otherwise modified performance. For example, ‘A’ submitted a single cheque for two products, one of which was due at the time and the other was payable later. As the cheque is one and indivisible, it can either be accepted in its entirety or in part. The promisee was found to be within his rights to refuse the check.
InHaji Abdul Rahman vs. Haji Noor Mahomed (1892), the highest amount acquired through tenders was deemed to be less, thus, a conference of all tenderers was summoned to allow them to revise their figures. The adoption of the best deal so obtained was ruled to be not arbitrary. In Navin Chandra vs. Yogendra Nath Bhargava (1965),the landlord received two cheques from the tenant. The landlord refused to accept these cheques and demanded that the rent be paid in cash. The landlord sued the tenant for eviction since he did not pay in cash. The tenant claimed that because he had offered payment (by cheque), it was a lawful tender of rent payment, and thus the landlord could not evict him. A debtor cannot claim a legal right to make payment via cheque if the creditor insists on being paid in cash unless the cheque is recognised as a valid tender by agreement or custom. The landlord was justified in denying payment by cheque on the grounds that it was not a legal tender because the parties were not business people, the debt did not emerge from a business transaction, and there was no agreement or practice authorising payment by cheque. As a result, the ejectment operation was successful.
Tender must be made at a proper time and place
The contract often specifies the time and place of performance. If the promise is made in this manner, the promisor has no further obligations if the tender is not approved. This was established in Startup vs. Macdonald in 1843. In this case, the defendant purchased ten tonnes of linseed oil from the plaintiff to be delivered during the final 14 days of March. The plaintiff filed his complaint on the fourteenth day, at 9:00 p.m. Due to the hour being late, the defendant declined to accept. He was found accountable for the infringement because the jury determined that, while the hour was unreasonable, the defendant had enough time to take in and weigh the products before midnight. He should have accepted the tender, and the contract would have been actually completed as a result.
Moreover, the tender must be submitted in such a way that the opposite party has a fair chance to determine whether the person submitting the offer is capable and willing to execute the whole of his contract obligations. If the tenderer is required to provide anything to the promisee, the latter must have a fair chance to inspect the item delivered to ensure that it is the item that the promisor is obligated to deliver under his promise. To put it another way, the items presented must match the contract description; otherwise, the tender will be rejected. If there are numerous joint promisees, the promisor is not obliged to offer performance to each of them. A tender to any of them has the same legal implications as a tender to all of them.
Reasonable opportunity
A tender must be written in such a way that the person receiving the goods has a reasonable amount of time to verify if the items are of the quality specified in the contract. The Act solely demands a reasonable chance for inspection. It is the responsibility of the receiving party to check, not the delivering party, that the items are in accordance with the contract. A few pointers are:
The goods do not have to be in the delivering party’s hands; control is sufficient.
A tender that did not reveal the sender’s identity is deemed invalid.
An insurance cover containing currency notes totalling the whole amount owed is not legal tender since the creditor was not obligated to accept the insured cover and take risk of it, not comprising the complete amount due.
Tender in case of joint promises
In the instance of numerous joint promisees, it is stated in Section 38 of the Indian Contract Act, 1872, that an offer to one of the several joint promisees has the same legal implications as an offer to all of them. It is evident from the preceding explanation that where there are many joint promisees, an offer of performance, that is, a tender to one of them, will be recognised as a valid tender.
Is it true that if the promisor tenders the performance to one of the joint promisees and it is accepted, the promisor is discharged? In this regard, Indian law varies from English law. The Madras High Court in Barber Maran vs. Ramana Goundan, (1897), held that Section 38 did not require the debtor to satisfy all joint promisees before obtaining a complete discharge and that a release of a mortgagor by one of two mortgagees on payment of the mortgage debt discharged the mortgagor as against the other mortgagee. Later, in M. Annapurnamma vs. U. Akkayya And Two Ors. (1912), a full Bench of the Madras High Court upheld the judgement and concluded that one of the numerous payees of a negotiable instrument might offer a valid discharge of the entire obligation without the cooperation of the other payees.
The principle of the decision in the Barber Maran case applies only where there are two or more joint promisees. It does not extend to co-heirs who are not joint promisees but heirs of a single promisee, and a release of the debtor by one of the heirs of the deceased creditor in exchange for payment of the amount owing on the bond is not a valid discharge. This rule does not apply when a debt is owed by a joint Hindu family and that is only owed by one person. In such a circumstance, he is the person who is prima facie entitled to recover it, and a payment made to him is a proper discharge of the obligation; if the payment is given to any other family member, it is not a discharge, unless there are circumstances explaining the payment. When a bond is transmitted to the manager of a joint Hindu family, payment to a junior family member during the manager’s lifetime does not relieve the promisor of his obligation under the bond.
Liability for refusal to accept an offer of performance
As previously stated, in case of a tender, if the promisor is willing to perform the contract and offers it to the promisee, who is under no obligation to accept it, then, the promisor cannot be held liable for non-performance of the contract, nor does he lose his contractual rights. Similarly, neglecting to provide a reasonable opportunity for the promisor to complete the tender or contract discharges the promisor from the performance of the contract. The promisor, on the other hand, has the option of either terminating the agreement or suing for damages for breach of contract. Section 73 of the Indian Contract Act, offers compensation for losses or damages incurred by breach of contract. When a contract is infringed, the party who suffers loss or damage as a result of the breach is entitled to compensation.
In Govind Prasad Dalmia vs. West Bengal State Electricity Board (2014), the corporation supplied at agreed prices and there was no proof that the opposite party accepted supply at escalating costs. The supplier postponed supplies in the hope that the increased prices would be paid. The agreed penalty amount was levied rather than damages for the breach, and the deduction from the invoices was deemed reasonable. In Kunwar Singh Rawat vs. State of Uttaranchal and Anr. (2007), the government has secured a contract for the construction of classrooms in the state. Eventually, the school building was damaged after the work was done before the remaining amount was paid. The contractor was permitted to recover the balance money after the inquiry report found that the damage was caused by floods and landslides rather than bad construction.
Conclusion
Under Section 2(a) of the Indian Contract Act of 1872, the term “offer” is defined. An offer is an expression of a person’s willingness to do or refrain from performing any act or omission in exchange for the consent of the person to whom the offer is made. In its literal sense, the term performance refers to the execution of a job or action. In legal terms, performance refers to the parties’ fulfilment or execution of their obligations to one another arising from the contract they have entered into. Tender is another term for an offer of performance. Section 38 of the Indian Contract Act, 1872, lays forth the requirements for a lawful offer of performance or tender. If the promisor offers to perform the contract to the promisee, and if the promisee rejects the offer, the promisor cannot be held liable for non-performance of the contract, nor does he lose his rights under the contract. The aggrieved party has the option of filing a lawsuit for damages or terminating the contract.
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This article is written by Ritika Sharma pursuing B.Com LLB (Hons.) from the University Institute of Legal Studies, Panjab University. This article discusses the essential elements, concepts and exceptions to the offence of defamation and lists down 10 landmark cases which highlight and interpret the exhaustive definition highlighted under Section 499 of the Indian Penal Code.
It has been published by Rachit Garg.
Table of Contents
Introduction
Reputation forms an intrinsic part of everyone’s life. People care about their honour and name like they care about their life. In the case of Subramanian Swamy v. Union of India (2016), the constitutional validity of the offence of criminal defamation was challenged but the Supreme Court observed that the right to reputation is protected under Article 21 of the Constitution of India, 1950. Defamation under the Indian Penal Code, 1860 refers to attacking another person’s reputation by making or publishing defamatory statements against them. It could be libel or slander. Libel is defamation in some permanent form such as written, printed, etc., and slander is defamation through spoken words or gestures.
Offence of defamation
Sections 499, 500, 501 and 502 of the Indian Penal Code, 1860 contain the provisions regarding the offence of defamation. Section 499 lays down a comprehensive definition of defamation and its exceptions. According to these provisions, the three essentials of the offence are as follows:
Making or publication of imputation: An imputation regarding any person has been made or published. It could be either libel or slander. When the statement consists of words or gestures, then it is called slander, while when these are in permanent form, they are called libel.
Means of imputation: The imputation should have been made via words, writing, signs or visible representations. Editors, printers, publishers and distributors could be made liable for the offence of defamation. However, if the editor of a newspaper can avoid the charge of defamation against him/her by proving that libel was published without their knowledge and in their absence.
Intention of harming the reputation: There should be the presence of intention of harming the reputation of another person. Reputation refers to the opinion of others about a person. The imputation should be made with the intention of lowering the moral or intellect of a person in the eyes of society. The presence of mens rea is sine qua non of the offence of defamation.
Explanations
There are 4 explanations with Section 499 to make it lucid as to what constitutes defamation:
Defamation of the dead: The Section covers the offence of defamation against a dead person also provided that the imputation is both defamatory to the deceased and hurtful to his/her relatives.
Defamation of a company or collection of persons: An offence of defamation against any corporation could be made out when the words accuse it of mismanagement or fraud in its dealings.
Defamation by innuendo: Sometimes the words in their literal sense appear to be non-defamatory, but there is hidden sarcasm which intends to harm the reputation. This also constitutes defamation.
Meaning of harming reputation: Explanation 4 to Section 499 lays down that it refers to lowering the moral or intellect of a person. Also, harming someone’s reputation by calling them of a lower caste or lowering their credit would be included in the offence.
Exceptions
Section 499 contains some exceptions which allow people to speak, write, or publish words that otherwise would be considered defamatory. There are 10 exceptions under which defamatory material can be excused. Following are the exceptions:
Truth for the public good
If a true statement has been made or published for the public good, then it will not amount to the offence of defamation. It is pertinent to note that the truth of the statement need not be proved literally, but it must be substantially true.
Public conduct of public servants
Under this exception, opinions are protected if they are made against public servants in their public duties. Therefore, any fair criticism or comments have been immunised if made with good faith, i.e., they should be made without carelessness or negligence. This exception preserves the principle of rule of law which is pivotal to democratic countries.
Conduct of any person touching any public question
When any statement is made in good faith regarding any public question, it is protected under the third exception. For example, in the case of Jawaharlal Darda v. Manoharrao Ganpatrao Kapiskar (1998), a publisher, who published a statement against a minister regarding the misappropriation of government money, was held not guilty of the offence of defamation.
Reports of proceedings of courts
Publication of the reports which highlight the proceedings of the court will not amount to the offence of defamation. The explanation of the fourth exception enunciates the definition of a court. It states, “a Justice of the Peace or other officer holding an enquiry in open court preliminary to a trial in a Court of Justice, is a court.” The report should be fair and should not only reflect one side of the proceedings and create any kind of bias in the minds of the readers.
Comments on cases
Comments or opinions on the merits of the case are not considered defamatory if they are made in good faith while respecting the conduct of parties, witnesses, or agents. For instance, A says, “I think Z’s evidence on that trial is so contradictory that he must be stupid or dishonest.” A is within this exception if he says this is in good faith, in as much as the opinion which he expresses respects Z’s character as it appears in Z’s conduct as a witness and no further.
Opinion on any public performance
The sixth exception protects the opinions on the merits of performances that the performer has submitted for the comments of the society. However, the opinion should be made with respect to the character in the performance and should be in good faith. For example, if A says, “I am not surprised that Z’s book is foolish and indecent, for he is a weak man and a libertine.” A is not within this exception, inasmuch as the opinion which he expresses of Z’s character is an opinion and not founded on Z’s book. Further the explanation appended to this exception states, “a performance may be submitted to the judgement of the public expressly or by acts on the part of the author which imply such submission to the judgement of the public.” For instance, a person who makes a speech in public submits that speech to the judgement of the public.
Censure by the person in authority
Censure passed by a person in authority is included within the exceptions if the following conditions are fulfilled:
Person is in authority over other via law or by means of any lawful contract and
Censure is passed in good faith and
Censure relates to the matters to which the lawful authority relates.
Accusation in good faith to authorised person
If an accusation is made against any person in good faith, then it does not amount to defamation when the person making the accusation has lawful authority over the other, that is, the authority should have some jurisdiction in the matter. For instance, if A in good faith accuses Z before a Magistrate then it will be exempted under this part.
Imputation for protection of interests
When imputation is made in good faith for the protection of the interests of the person who is making it or for any third party or in general public good, then it will not amount to the offence of defamation. For example, A, a Magistrate, in making a report to his own superior officer, casts an imputation on the character of Z. Here if the imputation is made in good faith and for the public good, A is within the exception.
Conveying caution in good faith
The last exception says that if a caution is conveyed for the good of another person or for the public good, then that caution communicated in good faith is covered under the exceptions. The burden of proof is on the person conveying the caution that it is made in good faith and for the public good.
Punishment for defamation
Sections 500, 501 and 502 stipulate the punishment for the offence of defamation. According to these provisions, the following offences are punished with simple imprisonment for a term which may extend to 2 years or with fine or with both:
Defaming another person
Printing or engraving matter known to be defamatory
Sale of printed or engraved substances containing defamatory matter.
Landmark defamation cases in India
Subramanian Swamy v. Union of India, Min. of Law (2016)
In this case, the constitutional validity of the offence of defamation under Sections 499 and 500 of the Indian Penal Code,1860 was challenged against the right to freedom of speech and expression, but the Supreme Court upheld the validity of these provisions.
Facts of the case
A writ petition under Article 32 of the Indian Constitution was filed which challenged the constitutional vires of the offence of defamation under the Indian Penal Code. The petitioners contended that the offence of defamation breaches the right to free speech and expression under Article 19(1)(a) of the Indian Constitution.
Contentions of the petitioners
The petitioners submitted that the right to freedom of speech and expression is an integral part of democracy and carries constitutional significance and is a part of the basic structure of the Indian Constitution.
The right ensured under Article 19(1)(a) is of utmost importance and has priority over other rights, therefore, in case of conflicts, the right to free speech and expression is not to be curtailed unless it hinders the community interest.
The reasonable restrictions provided under Article 19(2) of the Constitution protects the interest of the general public and not any individual. Thus, Section 499 of the Indian Penal Code cannot be granted protection under this constitutional provision.
As Article 19(2) is an exception to Article 19(1)(a) of the Constitution, it cannot be liberally construed and its ambit cannot be widened.
The concept behind the test of reasonable restriction is that if the restriction infringes the fundamental right in an excessive manner, then it cannot pass the test of reasonableness. Moreover, restrictions should be reasonable in substance and procedure, and the procedure for complaints for the offence of defamation does not pass the test of reasonableness.
Explanation IV to Section 499 of the Indian Penal Code provides a wide ambit for the offence of defamation, and it allows a greater width and ambit without any guidance, hence it is arbitrary.
Contentions of the respondent
Respondents, while highlighting the importance of the right to reputation, submitted that it is an integral part of the right to life protected under Article 21 of the Indian Constitution. Also, it is an inseparable element of a person’s personality that cannot be overlooked.
Article 19(2) is to be read as a part of speech and expression as it cannot be considered as an absolute right. Thus, the offence of defamation is covered under the exception provided under Article 19(2).
All the constitutional provisions are to be read in context with the Preamble, which talks about fraternity and states, “fraternity assuring the dignity of the individual and the unity and integrity of the Nation”. Thus, it aims at preserving the dignity of the individuals and hence, the restriction imposed by Section 499 satisfies the motive of constitutional fraternity.
Press can influence the minds of the public and cannot be given unbridled power. Even explanation I to Section 499 of the Indian Penal Code does justify truths unless they are for the public good.
It was also submitted that the contention that the law of criminal defamation protects the interests of only an individual does not hold good as defamation serves the public purpose and is for the larger interests of society.
Reputation cannot be compensated in monetary terms as it is linked with self- respect, honour and dignity. Therefore, the argument of the petitioners that a civil remedy could be granted in case of defamatory remarks is not tenable.
Observations of the Court
The two-judge bench of the Supreme Court upheld the constitutionality of the offence of defamation under the Indian Penal Code by making the following important observations:
It was observed that there is no ambiguity in the intent of the legislature behind associating wider words in the words of narrower sense and thus, the rule of noscitur a sociis, which is a rule of construction, cannot be applied.
Any person cannot, in the name of freedom of speech and expression, defame others, and hence, the Court held that, “it is difficult to come to a conclusion that the existence of criminal defamation is absolutely obnoxious to freedom of speech and expression.”
Furthermore, the Court stated, “protection of reputation is a fundamental right. It is also a human right. Cumulatively, it serves the social interest. Thus, we are unable to accept that provisions relating to criminal defamation are not saved by doctrine of proportionality because it determines a limit which is not impermissible within the criterion of reasonable restriction.
Chaman Lal v. State of Punjab (1970)
In this case, the Supreme Court laid down the basis of establishing the good faith and bona fide as specified in the exceptions to Section 499 of the Indian Penal Code.
Facts of the case
According to the facts of this case, one President of the Municipal Corporation wrote a letter which contained defamatory remarks against a nurse of the local hospital. Complaint was filed against the accused under Section 499 of the Indian Penal Code. The accused contended that the imputations were true and he made them in good faith. The imputations were sent to the lawful authority.
Observations of the Court
The alleged accused was punished for a simple imprisonment of two months and the Supreme Court laid down the following basis of proving good faith and bona fides:
The circumstances under which the letter was written or words were uttered.
Whether there was any malice.
Whether the accused made any enquiry before he made the allegation.
Whether there are reasons to accept the version that he acted with care and caution.
Whether there is a preponderance of probability that the accused acted in good faith.
With respect to the nature of an interest, the Supreme Court said that the “interest of the person has to be real and legitimate when communication is made in protection of the interest of the person making it. If that be so, then good faith is automatically drawn in and good faith obviously does not require logical infallibility”.
M.K. Parameswara Kurup v. N. Krishna Pillai (1966)
This case highlighted the privilege of practising advocates and that their conduct can be covered under the ninth exception to Section 499 of the Indian Penal Code.
Facts of the case
A petition under Section 561-A of the Criminal Procedure Code, 1973 was filed in order to quash the charge framed by the First Class Magistrate. The petitioner in this case was a practising advocate and a charge was made against him under Section 500 of the Indian Penal Code. The charge said that the counter affidavit contained certain imputations against the complainant which were defamatory and untrue. The advocate had attested those affidavits before they were put before the Court.
Observations of the Court
The Kerala High Court held him not guilty as it was observed that the counsel can come within the ambit of ninth exception to Section 499 of the Indian Penal Code when he does not abuse his position or make malicious allegations. Following are the significant points that were observed by the Court in this case:y
Assuming that it was the lawyer who drafted the written statements, there can be no offence against him. A counsel owes a duty to his client and he must carry out faithfully his client’s instructions. If the client makes serious allegations against a party in a suit, it is the counsel’s duty to plead those allegations in the plaint or written statement, or other pleadings. No doubt, the counsel must perform his duty with discretion, and clearly he should not plead what are obviously irrelevant, wanton, wild or reckless allegations.
It must be remembered that a counsel is not a judge in the case and it is not for him to decide whether the allegations made by his client are true or false. He is bound, except in very exceptional circumstances, to accept his client’s words. If serious and untrue allegations are made he brings himself open to a prosecution for defamation, but he cannot be successfully prosecuted unless it is clearly shown that he had acted in bad faith or maliciously.
G. Narasimhan & Ors. etc. v. T.V. Chokappa (1972)
In this case explanation 4 of Section 499 was examined by the Supreme Court and the principle that the defamatory remarks should relate to some specific person or group was highlighted.
Facts of the case
A complaint was filed under Section 500 and 501 of the Indian Penal Code by the Chairman of the Reception Committee of the Dravida Kazhagam against the editors and publishers of the newspapers The Hindu, Indian Express and Dinamani. The conference of the committee had passed a resolution which pleaded with the authorities to take suitable steps to see that coveting another man’s wife is not made an offence under the Indian Penal Code”. However, the newspapers published this news by stating that the resolution was that, “it should not be made an offence for a person’s wife to desire another man.”
The issue that arose was whether the conference organised by Dravida Kazhkam was an identifiable body so that any imputation against it would be considered defamation against the members of the committee.
Observations of the Court
The Supreme Court quashed the proceedings before the Magistrate and took note of the following points:
While elucidating upon the scope of explanation 2 to Section 499 of the Indian Penal Code, the Court stated, “such collection of individuals must be an identifiable body so that it is possible to say that with definiteness that a group of particular persons, as distinguished from the rest of community, was defamed. Therefore,in a case where explanation 2 is resorted to, the identity of the company or the association or collection of persons must be established so as to be relatable to the defamatory words or imputations. Where a writing inveighs against mankind in general, or against a particular order of men, eg, men of gown, it is no libel. It must descend to particulars and individuals to make it a libel”.
Regarding the conference in the case, the Court laid down, “it is impossible to have a definite idea as to its composition, the number of persons who attended, the ideas and ideologies to which they subscribed, and whether all of them positively agreed to the resolution in question. The evidence was that the person presiding read out the resolution and as no one got up to oppose it, it was taken as approved by all. The Conference clearly was not an identifiable or a definitive body so that all those who attended it could be said to be its constituents who, if the conference was defamed, would in turn, be said to be defamed”.
MP Pillai v. MP Chacko (1986)
This case is significant as it elaborates upon the fact that in the case of any published material, the complete text is to be taken into consideration so as to decide whether it is defamatory or not.
Facts of the case
In this case, the matter was with regard to an article titled “Syrian Christians and National Integrity”. It was published in two parts where the first part complimented the ancestry of Syrian Christian community while the other part highlighted that the community was engulfed in unemployment and poverty due to which some women of the community have to indulge themselves in prostitution to feed them and their families. Moreover, priests and nuns were applauded for their service for mankind. A complaint was filed alleging that the article defamed the community.
Observations of the Court
The Court observed that the article is to be read in whole so as to measure its impact. Also, the background circumstances are to be taken into consideration while deciding whether the article is defamatory or not.
It was also stated by the Hon’ble Court that, “Even the alleged defamatory imputations are only against some among the Syrian Christian girls working abroad and some of the Syrian Christian ladies who became nuns. Probably their families also could be said to have been defamed. These girls or the ladies who became nuns or their families form only a section of the Syrian Christian Community which itself is unascertainable. They are only unascertainable and indefinite individuals or groups among the Syrian Christian Community. The complainant cannot say by any stretch of imagination that he will come within that group so that he could claim that he was individually defamed. There is no imputation against the Syrian Christian Community as such, even taking for granted that the first respondent was competent to file a complaint as a member of that community or on behalf of that community”.
Kanwar Lal v. State of Punjab (1963)
This case highlighted the difference and scope between the eighth and ninth exceptions to Section 499 of the Indian Penal Code.
Facts of the case
A defamation charge was made against a police officer for having passed defamatory imputations against his neighbour Ram Rakhi via a letter to the District Panchayat Office, Ludhiana. The contents of the letter said that the Ram Rakhi was of loose character and had illicit relations with some people and that she was engaged in immoral activities. The police officer was held to be liable by the Sessions as well as the High Court, the accused appealed before the Supreme Court contending that he should be granted protection under the eighth and ninth exceptions.
Observations of the Court
The Supreme Court disagreed with the appellant and upheld the conviction. The following points were observed by the Court which were instrumental in understanding the ambit of eight and ninth exceptions to defamation under Section 499 of the Indian Penal Code:
In order to establish a defence under this exception, the accused would have to prove that the person to whom the complaint was made had lawful authority over the person complained against, in respect of the subject matter of the accusation. If the District Panchayat Officer had such lawful authority, the last paragraph of the offending communication would have justified such a plea. But there is no basis for such a plea”.
The difference that was highlighted by the Apex Court between the eighth and ninth exceptions was that, according to the eighth exception, the person making the defamatory remarks should have a lawful authority, while in the ninth exception, the statements are made by the person who has interest in the matter and the requirement of belonging to the lawful authority is not necessary.
Moreover, the Court stated, “even if good faith be taken to have been established, the imputation has to be made for the protection of the interest of the person making it… besides the making the imputation, the person to whom the imputations is conveyed must have a common interest with the person making it which is served by the communication”.
Dogar Singh and Anr. v. Shobha Gupta and Anr.(1998)
The judgement in this case laid emphasis on the term ‘good faith’ used in exception 3 to Section 499.
Facts of the case
In this case, the Principal of Punjab Public School, Pugwara, Mrs. Shobha Gupta, filed a case against two persons alleging that they had made defamatory remarks in the complaint which they had submitted to the Deputy Commissioner, Kapurthala. The accused stated in the complaint “that the building of the aforesaid school is quite unsafe and it may bring about any disaster upon the students of this school at any time; that the indiscipline among the students is to an unlimited extent and this has created a great problem for the nearby residents.Neither the school has any ground for proper accommodation; that it appears that this school has become a meeting place for the both sexes and the principal, Mrs. Shobha Gupta is turning a deaf ear towards the character of the students; that if these are not checked in time, they may become a great problem for the city”. In an enquiry before the SDM, the allegations of the accused were found to be false and their complaint was dismissed. Consequently, MMrs.Shobha Gupta filed a case of criminal defamation against the accused persons.
Observations of the Court
The Punjab and Haryana High Court held that the complaint contained reckless statements and was without any basis. The accused cannot be granted protection under exception 3 of Section 499 of the Indian Penal Code. The following was observed in this case:
The allegation that the school is the meeting place of opposite sexes was reckless and was made intentionally to disrepute the school principal. As they did not act in good faith, therefore, cannot be justified under exception 3.
It was stated by the Court that, “the question whether the accused acted in good faith, would depend on the facts and circumstances of each case – the nature of the imputation made, the circumstances under which it was made, the status of the person making the imputation, the existence or otherwise of malice in his mind when he made the imputation and whether he acted with due care and attention and was satisfied as to the truth of the imputation or the relevant considerations in deciding the question”.
MC Verghese v. TJ Ponnan (1970)
This judgement addressed the question of whether communication between husband and wife is privileged communication and comes within the ambit of eighth exception to Section 499 of the Indian Penal Code.
Facts of the case
A complaint was filed by Mr. Verghese, who was the father-in-law of TJ Ponnan. The latter had written a letter to his wife Ruchi when she was at her father’s place in Trivandrum. The letter contained defamatory statements against Mr. Verghese. The complaint was filed before the district magistrate. The District Magistrate held that the communication between husband and wife does not amount to publication as they are one in the eyes of the law according to English law. It was observed by the Magistrate that this communication will be considered privileged and hence, does not amount to the offence of defamation. However, this decision was reversed by the Sessions Court stating that the rule under the Common Law that husband and wife are one in the eyes of law cannot be applied in India, but the High Court again reversed the order and upheld the decision of the District Magistrate. Thus, the appeal was filed before the Supreme Court.
Observations of the Court
The Supreme Court held that this case does not fall within the ambit of privileged communication or eighth exception to Section 499. The Supreme Court relied upon the ruling in Tiruvengada Mudali v. Tripurasundari Ammal (1980) and held that Section 499 was exhaustive and nothing should be permitted beyond its exceptions. It was stated that, “a person making libellous statements in his complaint filed in court is not absolutely protected in a criminal proceeding for defamation, for under the eighth exception and the illustration to Section 499, the statements are privileged only when they are made in good faith. There is authority therefore for the proposition that in determining the criminality of any act under the IPC, the courts will not extend the scope of special exceptions by resorting to the rule peculiar in English common law that the husband and wife are regarded as one”.
Jawaharlal Darda v. Manoharro Ganpatrao Kapiskar (1998)
This case pertains to the status of accurate and true reports of assembly proceedings published in newspapers.
Facts of the case
A complaint was filed under Sections 499, 500, 501 and 502 of the Indian Penal Code and it was alleged that the Chief Editor of the newspaper Lokmat is to be charged for defamation for the publication of news of the Maharashtra legislative proceedings. The news contained details that when a question regarding misappropriation of government funds was asked by the minister, he admitted it by saying that the enquiry concluded that there was a misappropriation. Further, he revealed 5 names, including that of the complainant, and stated that they were involved in misappropriation.
Observations of the Court
The Supreme Court very succinctly highlighted that the reporting by the newspaper was true and accurate and was in good faith. It was also stated that, “If the accused bona fide believing the version of the Minister to be true published the report in good faith it cannot be said that they intended to harm the reputation of the complainant. It was a report in respect of public conduct of public servants who were entrusted with public funds intended to be used for public good. Thus the facts and circumstances of the case disclose that the news items were published for public good. All these aspects have been overlooked by the High Court”.
Mohammad Abdulla Khan v. Prakash K (2018)
This case examined the application of vicarious liability principle in the offence of criminal defamation.
Facts of the case
A complaint was filed under Sections 500, 501 and 502 of the Indian Penal Code against the respondent, who was the sole owner of the newspaper called Jaya Kirana. The Sessions Court dismissed the complaint, the complainant approached the High Court under Section 482 of the Criminal Procedure Code. The High Court, however, held that the complaint regarding defamation can only be filed against the editor of the newspaper and not against its owner as there is not any concept of vicarious liability under the criminal law. It was observed by the High Court that if punishment would be announced for the owner, then it would lead to miscarriage of justice. The appeal was filed against this order of the High Court.
Observations of the Court
The Supreme Court set aside the judgement of the High Court and observed the following:
“The extent of the applicability of the principle of vicarious liability in criminal law particularly in the context of the offences relating to defamation requires a serious examination in appropriate cases because the owner of a newspaper employs people to print, publish and sell the newspaper for a financial gain out of the said activity”.
It was made distinct in this case that both owner and printer of the newspaper and the persons who offer to sell could be liable for the offence of defamation under Section 501 of the Indian Penal Code.
Conclusion
Since reputation is important for every being, the offence of defamation is also crucial and time and again, its provisions are challenged for violating the right to speech and expression ensured by Article 19(1)(a) of the Constitution of India. Section 499 lays down the list of exhaustive cases and circumstances where a person could be charged for making defamatory imputations as well as where their acts could be justified under the exceptions. The controversies around this offence are prevalent and the judiciary has played a vital role in addressing several questions that arise. Furthermore, the Law Commission is also instrumental in making proposals for eliminating the conflicts surrounding the offence.
Frequently asked questions (FAQs)
What is good faith?
The term good faith is used in the exceptions to Section 499 of the Indian Penal Code. It is defined under Section 52 of the Indian Penal Code as, “nothing is said to be done or believed in good faith which is done or believed without due care and caution”. The significant elements are care and caution. In the case of defamation, there should be some reasonable cause for passing the defamatory remarks.
Whether the communication between husband and wife is privileged and would be justified under the eighth exception?
The principle that a husband and wife are one in the eyes of law is an English doctrine and the Indian Courts rejected it by stating that Section 499 is already exhaustive and this principle is not applicable in India. Thus, in India communication between husband and wife is considered privileged for the offence of defamation.
What is the difference between contempt of Court and libel of Court?
When someone obstructs the administration of justice and lowers the authority of the Court then it is referred to as contempt of Court. While if any imputation is published against the integrity of any judicial officer then it is called libel of the Court and is punishable under the Indian Penal Code.
Whether the owner or printer of the newspaper could be held liable for the offence of defamation?
It has been decided in multifarious cases that along with the editor, owner and printer could also be held liable for the offence of defamation
Whether lawyers be made liable for the defamatory imputations in the affidavit?
Lawyers cannot be made liable for defamatory remarks contained in the affidavit as this would make it difficult for them to practice without any fear of charges against them and they won’t be able to discharge their duties fearlessly.
References:
The Indian Penal Code, 1860
Pillai, P S A (2019) Criminal Law, LexisNexis, Haryana.
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In the backdrop of the COVID-19 pandemic, the realm of International trade got a major hit, given the globalized world that we live in. Despite the various minor trends of nationalism and sub-regionalism, the pandemic came as a major reminder to all of us about the inter-linkages that the world has developed owing to global trade. One of the crucial aspects of this disruption due to such a pandemic is its legal implications on the contracts of sale.
The International Commercial Law, which can be manifested from various treaties, conventions, rules, and regulations were drawn at international, supra-national, sub-national, and national levels has to be analyzed to understand the effect and validity of contracts during a world pandemic. This article will look into all these aspects during a world pandemic (with a specific focus on COVID-19), starting from its impact on global trade. It will then discuss the legislative framework for international sale contracts during such events. Finally, it will analyze the effect, validity, and remedies available for such contracts during a world pandemic.
Impact of world pandemic on global trade and sale contracts
The unprecedented shocks and situations like lockdowns forced by the Pandemics such as COVID-19, result in sharp changes in demand and revenue. It also leads to disruptions in the supply chain and the entire business ecosystem.
These disruptions and changes have varied impacts on the contractual obligations of different businesses. These shifts in the regular course of business give rise to various questions that come up about the legal obligations during such testing times, such as-
What are the clauses containing the force majeure provisions in the contract?
What is the scope of relief that these clauses provide to a party? Can it include all scenarios beyond the reasonable control of the affected person or the relief is given only concerning specific scenarios like a natural tragedy?
How are these provisions defined in the Agreement? Whether it applies only to an event that “prevents or delays” performance? Whether it intends to give relief where performance is “affected” or made less economical?
To what extent, the contract elaborates on an epidemic or a pandemic to qualify as such an event? E.g. An “epidemic” is usually used for a disease prevalent in a community whereas a “pandemic” usually refers to an infectious disease that prevails over a whole country or the world.
Which are the steps which a party needs to take to claim to be affected by such an act of God?
What is the nature of the relief provided, is it mandatory or merely discretionary?
These questions usually work and apply differently on a case-to-case basis based on the jurisdiction, legal concepts, area of business, and especially, how the contracts are worded.
“This Convention applies to contracts of sale of goods between parties whose places of business are in different States:
(a) when the States are Contracting States; or
(b) when the rules of private international law lead to the application of the law of a Contracting State.”
Even today, the major mode of transport in international trade is through ships to deliver and distribute the commodities and manufactured goods. Therefore, the contracts of sale also include provisions and clauses which deal with the description and meaning of those goods. However, the monetary considerations, as well as details of shipping arrangements, are covered by the standard trade terms such as the Incoterms. The interplay of these concepts and the clauses in the contracts regularly become a point of dispute when such a pandemic takes place.
Legislative framework for international sale contracts during a pandemic
There are primarily four legal sources, which guide us as to what can be done by the parties during a pandemic. We shall only look at the specific provisions which can be invoked under such Sale Contracts.
United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG)
CISG, also known as the Vienna Convention, is one of the core international trade law conventions, which has established uniformity in terms of international sale of goods, which can be applied to the sale contracts of goods between the parties with a place of business in the Contracting States.
Under CISG, the Articles 79 and 80 provide for the exemption clauses for the liability for a failure to perform any of any party’s obligations if that party proves that the failure was due to an impediment beyond his control and that it could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it, or its consequences. Under these Articles, the prerequisites should be present including the impediment must be beyond the control, unforeseeability, and unavoidability.
Incoterms
One of the most important sources of interpretation of standard terms for International Sale Contracts is the Incoterms rules. They have been published by the International Chamber of Commerce regularly since the year 1936. These rules include various concepts such as Free on Board (FOB), Delivered at Place (DAP), Carriage and Insurance Paid To (CIP) among various others, which are been given concrete meaning for this purpose of the sale of goods.
The ICC Incoterms have been accepted as both agreed usages and practices under the CISG, to establish the communication between the parties and as trade usages.
Convention on the Limitation Period in the International Sale of Goods (New York, 1974)
The Limitation Convention was adopted in 1974 to overcome the numerous disparities that existed among legal systems for the conceptual basis, resulting in significant variations in the length of the limitation period and in the rules governing claims after that period. The Convention provides uniform international legal rules governing the limitation period in a contract for the international sale of goods.
UNIDROIT Principles of International Commercial Contracts
The UPICC norms are non-binding, but also codify important provisions of rules and principles of Contract law, which have been designed for international trade. However, its scope of application has not been confined to contracts for the sale of goods. It set forth “general rules” of contract law. Its. Chapter 7 provides for many general provisions on non-performance including the non-performing party’s right to cure (Article 7.1.4), the aggrieved party’s right to withhold performance (Article 7.1.3), and the exemption from liability for damages in cases of force majeure (Article 7.1.7).
Effect and validity of international sale contracts during world pandemic
The CISG makes an assumption where the liability for breach of contract is not a strict liability i.e. without a requirement of fault. This approach is taken to prevent excessive liability, thus a broad contour is taken with corrective limitations on it. Therefore, for a party to be held liable for its failure in performing the obligations, it has to be proved that the failure was not due to an impediment beyond the control of that party. Also, it has to be proved that the party could not have anticipated such an event reasonably to have been able to avoid its consequences.
Since every case is a unique one, international law cannot have a ‘one fit all’ determination of the limits of reasonableness in a larger context. Rather, it is always an individualistic sphere of analysis where one can have the potential to prove that the given pandemic could have lent that reasonableness or not. This can be done in the following ways-
Whether the shortfall of production has happened on the part of the supplier? The claim of exemption will centre on the unavoidability of each operational measure.
To what extent does the supply chain face disruption? Here it will be analyzed whether the parties can settle on a modified distribution of risk within their contractual agreement.
Does the pandemic result in illiquidity on the part of the buyer? As a general rule under CISG, usually, the debtor is completely responsible for his financial capacity. But this can be subject to exceptions, should the loss of financial capacity itself be caused directly and solely by an event of force majeure.
The concept of economic hardships has not been covered in any statute properly, which has invited a debate as to whether such hardships shall fall within the scope of application of CISG or not?
Hence, the effects and validity of international sale contracts during such a world pandemic depend and change on a case-to-case basis.
Remedies available for effective International Sale Contracts
The following remedies and exemptions can be utilized by the defaulting parties under International Law-
The parties can claim exemption from damages for non-performance, provided it meets all the pre-requisites.
By taking shelter under Article 49(1) (a) under CISG, the buyer can avoid the contract after a delay in performance.
By taking shelter under Article 50 under CISG, the parties can ask to reduce the purchase price.
By taking shelter under Article 78 under CISG, the parties can seek to exempt the interest claims.
Under Article 6.2.3 of UPICC, there is an option for contract renegotiation and adaption. This provision comes as a legal consequence where there is a case of hardship.
In general, the parties can review how the force majeure clauses can be read along with other provisions of the contract.
Conclusion
Such black swan events can happen anytime without any warning signs or triggers. It is thus critical that such International Sale Contacts be drafted considering all the potential scenarios. The drafting of clauses should be as exhaustive and specific as possible, the notification requirements should be mentioned appropriately, the terms of negotiation and re-negotiation should be addressed adequately and lastly, every party to such contracts should try to ensure and reduce its legal risks whenever such black swan events take place. The most appropriate takeaway from such events is to evolve the legal profession and practice, to incorporate its learnings and challenges in future contracts.
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This article is written by Neha Dahiya, a law student at Dr. B.R. Ambedkar National Law, University. This article contains an overview of the Environment (Protection) Act, 1986, including its background, objectives, various provisions, drawbacks, and some important case laws.
In wake of the Stockholm Conference held in 1972 that advocated environmental protection at the international level and was one of the most devastating incidents of all time, the Bhopal Gas Tragedy of 1984 highlighted an urgent need for a comprehensive law with respect to environmental protection, domestically, the need for Environment (Protection) Act, 1986 was felt. The preamble of the Act states the objective of the Act to be the protection and improvement of the environment. It seeks to protect human beings, other living creatures, plants, and property from environmental hazards. It extends to the whole of India and aims to prevent, control, and abate environmental pollution. Even though we had the Water Act, 1974, the Air Act, 1981, and the Indian Forest Policy, 1988, there was a pressing need for general legislation with stringent penal provisions in order to safeguard the environmental rights.
Background of the Environment Protection Act
The concern for the environment in India is nothing new. From ancient times we have believed in ‘Vasudhaiva Kutumbakam’, i.e. the entire world is one family. Indians have believed that all the creatures on the Earth are a family, including all the plants, animals, and microorganisms.
Our present-day Constitution also provides testimony to our old principles. Some of them are as follows:
By the 42nd Amendment Act, Article 48A was added as a part of the Directive Principles of State Policy which stated that it was the state’s responsibility to make efforts in order to “protect and improve the environment, and to safeguard the forests and wildlife of the country.”
Article 51A(g) declares that it is the fundamental duty of each and every citizen of the country to “protect and improve the natural environment including the forests, lakes, rivers, and wildlife and to have compassion for living creatures.”
Our judiciary has outlined in a number of judgments that Article 21, which guarantees the right to life and dignity, also encompasses the right to live in a healthy and safe environment. In the case ofSubhash Kumar v. the State of Bihar, it was observed that the right to get pollution-free water and air is a fundamental right under Article 21.
Article 253 of the Indian Constitution empowers the Parliament to bring any legislation to give effect to any international treaty, agreement, convention, or decision taken at a conference. It was with the help of Article 253 that the Indian Parliament enacted the Environment (Protection) Act, 1986 to give effect to the decisions taken at the UN Conference on the Human Environment held in Stockholm in 1972.
Stockholm Conference, 1972
The United Nations Conference on Environment, in Stockholm was the first Conference held at the world level that took the environment as a serious international concern. It led to the formulation of the Stockholm Declaration and Action Plan for the Human Environment and other numerous resolutions that aimed at sound management of the environment. The Declaration basically consisted of 26 principles that mainly aimed at facilitating dialogue between industrialized and developing nations on the matters of economic growth, air and water pollution, and the overall well-being of the people across the globe. One of the most impactful results of this conference was the formulation of the United Nations Environment Programme. India also participated in the conference and vociferously raised its concern for the environment. In order to implement the decisions adopted at this conference, the Indian Parliament exercised its powers under Article 253 to enact the Environment (Protection) Act, 1986.
Objectives of the Environment Protection Act
The following are the main objectives behind bringing this legislation:
To implement the significant decisions taken, relating to environment safety and protection, at the United Nations Conference on the Human Environment held in Stockholm in June 1972.
India already had some legislation related to different aspects of the environment but there was a need for comprehensive legislation that filled the gaps in the existing laws. Thus, it was enacted to bring general legislation in environment protection and cover other major areas of environmental hazards that were previously uncovered.
To create new authorities for the purpose of protecting and improving the environment and also to coordinate the activities of already existing authorities constituted under previous laws.
To provide for stringent and deterrent punishment to the offenders of the natural environment who endanger its safety and health.
To facilitate the growth of subordinate and delegated legislation on ecologically sensitive topics and environment protection.
To promote sustainable development, i.e. balance the overall development with environmental protection.
Need for the Environment Protection Act in India
The need for stringent legislation for environment protection was felt in India because of the following reasons:
The first was the Stockholm Conference which highlighted internationally, the impact human activities were having on the environment. Development and the environment were at crossroads with each other and the conference brought into focus the urgency of their reconciliation for the benefit of humanity and the planet as a whole.
The second was the Bhopal Gas Tragedy. It was about the leak of Oleum gas from an industry that proved to be fatal for the people around and the environment. This incident underlined the importance of regulating the industries so that they do not get away easily from the punishment of causing harm to the environment.
Also, the need was felt because India had some laws for protecting the environment like the Air Act and Water Act but there was no comprehensive law that connected them and coordinated their activities and functions.
Why is Environment Protection Act called an ‘Umbrella Act’
The Environment Protection Act is called an ‘Umbrella Act’ because of the following reasons:
It establishes the basic framework for planning and executing large-scale strategies to protect and improve the overall environment, rather than focusing on specific aspects.
It provides for coordination between the Central government, state government, and authorities that are established under various other legislation related to the environment.
It fills the lacuna created by several other distinct legislation like the Water Act and Air Act. It connects them together and makes them more effective.
It is broad and comprehensive legislation that covers the definitions, powers, and responsibilities of the central government towards the environment, and penal provisions as well.
The concept of Environment Impact Assessment
Environment Impact Assessment has been defined by the International Association for Impact Assessment as, “the process of identifying, predicting, evaluating and mitigating the biophysical, social and other relevant effects of development protocols prior to major decisions being taken commitments made.”
Basically, it is a concept that attempts to reconcile anthropogenic developmental activities with environment protection by assessing the impact of such activities on the environment and addressing them at the planning and design stage of the project itself. Thus, it majorly involves identifying the future implications of a proposed activity on the environment. It has originated from the concept of the ‘precautionary principle’ which says that a consent must be obtained from a competent authority before taking up any developmental activity posing a serious or irreversible threat to the environment. Now, in order to gauge the effect of that activity, EIA plays an instrumental role.
Environment Protection Act in India
The concept of EIA reached India in 1976-77 with the Planning Commission asking the Department of Science and Technology to assess the river valley projects for their impact on the environment. Subsequently, it was expanded to include other projects as well. They were subjected to the approval of the Public Investment Board. But these were mainly administrative decisions and had no statutory backing. But it got support with the coming of the Environment Protection Act, 1986. After EPA came into force, a notification was issued under the Act which made EIA compulsory for 30 specified activities. The responsibility for giving a clearance has been given to the Ministry of Environment and Forest. The Notification was revised in 2006.
Section 2 of Environment Protection Act
Section 2 of the Act defined various terms used in its provisions. These definitions are as follows:
Environment– Environment has been defined to include air, water, and land, and the inter-relationship among and between air, water, land and human beings, other living creatures, microorganisms, plants and property.
Environment pollutant- A pollutant is any substance in a solid, liquid, or gaseous state, which when present in a certain concentration can be injurious to the environment.
Environment pollution– The presence of an environmental pollutant in the environment is called environment pollution.
Handling– Handling, in respect of any substance, is deemed to imply its “manufacture, processing, treatment, package, storage, transportation, use, collection, destruction, conversion, offering for sale or its transfer.”
Hazardous substance– It refers to any substance or preparation which can cause harm to humans, plants, other living creatures, property, or the environment due to its chemical or physico-chemical properties or handling.
Occupier- In respect of any factory or premises, it refers to the person who is in control over the affairs of the factory or premises, and in respect of any substance, it refers to the person who is in possession of that substance.
Powers and functions of the Central Government
Section 3- Powers of the Central Government to take measures to protect and improve the environment
Section 3 empowers the Central Government to take all such measures as it deems necessary or expedient to protect and improve the quality of the environment, and to prevent, control, and abate environmental pollution. Some of these measures include:
To coordinate actions among state governments, officers, and other authorities.
To plan and execute nationwide programs.
To lay down standards for the quality of different aspects of the environment.
To lay down the standards for emission or discharge of pollutants.
To restrict the operation of certain industries, processes, or operations in specific areas.
To lay down procedures and safeguards for the prevention of pollution-causing accidents and take remedial measures.
To lay down procedures and safeguards for the handling of hazardous substances.
To examine the manufacturing processes, materials, and substances that are capable of causing pollution.
To carry out and sponsor investigations and research on the issues related to pollution.
To inspect the premises, plant, equipment, machinery, manufacturing, or other processes, materials, or substances.
To establish or recognise environmental laboratories and institutes.
To collect and disseminate information on pollution matters.
To prepare codes, manuals, or guides related to the prevention, control, and abatement of environmental pollution.
Such other matters as the government deem necessary or expedient.
The Central Government is also authorised to constitute such authority/authorities for the purpose of exercising and performing such powers and functions as the government may delegate to it.
Section 4- Power to appoint officers
Section 4 authorizes the Central Government to appoint officers with such designations, powers, and functions as it thinks fit. The officers appointed shall be under the control and direction of the government or any authority empowered by it.
Section 5- Power to give directions
As per Section 5, the Central Government has got the power to issue directions in writing to any person, officer, or any authority, which shall be binding on such person, officer, or authority.
These directions could be related to matters as follows:
To close, prohibit, or regulate any industry, operation, or process; or
To stop or regulate the supply of electricity, water, or any other service.
Section 6- Power to lay down rules to regulate environmental pollution
The Central Government has also been authorised to frame rules on the matters mentioned in Section 3 of this Act. Some of these matters include:
The standards of quality of air, water, or soil.
The maximum allowable limits of environmental pollutants (including noise).
The procedures and safeguards for the handling of hazardous substances.
The prohibition and restrictions on the handling of hazardous substances.
The prohibition and restrictions on the location of industries, operations, and processes.
The procedures and safeguards for the prevention of accidents likely to cause pollution and provide for remedial measures for such accidents.
Section 10- Power of entry and inspection
Under this Section, any person authorised by the Central Government has the right to enter any place, at reasonable times with some assistance for the following purposes:
To perform any function entrusted by the Government,
To determine whether and how such functions are to be performed, or whether the provisions of this Act, rules made under any notice, order, direction, or authorisation granted has been complied with,
To examine and test any equipment, industrial plant, record, register, document, or any other material object.
To conduct a search in my building where there is reason to believe that an offence under the Act has been committed.
To seize any such equipment, industrial plant, record, register, document, or other material objects if there is reason to believe that it would serve as evidence for the offence committed or that the seizure is necessary to mitigate the pollution.
Also, any person carrying on such industry, process, or operation which involves handling of hazardous substances must render all the assistance required to the person empowered by the Central Government for inspection. Failure to provide the assistance without any reasonable cause, or wilfully delays or obstructs that person shall be guilty of an offence under this Act. Also, for such search and seizure, provisions of the Code of Criminal Procedure, 1973 or any corresponding law in force shall be applicable.
Section 11- Power to take sample and procedure to be followed
Section 11 empowers the State Government or any officer authorised by it to take the samples of air, water, soil, or other substances from the premises of any factory.
The procedure prescribed for sample taking is as follows:
The person taking the sample must serve a notice of his intention to take the sample to the person in charge of the place.
The sample must be taken in the presence of the person in charge or his agent.
The sample must be placed in a container or containers, which shall be marked and sealed. Thereafter, it shall be signed by both the person taking the sample and the person in charge or his agent.
The container then must be sent to the laboratory established under Section 12.
In case the person in charge or his agent wilfully absents himself or refuses to sign the containers, the containers must be sealed, marked, and signed by the person taking the sample and must be sent to the laboratory. The government analyst must be informed in writing about the wilful absence or refusal to sign.
Any analysis taken without following the procedure prescribed would not be admissible as valid evidence in any legal proceedings.
Section 20- Power to ask for information, reports, or returns
For the purpose of performing its functions under the Act, the Central Government has the power to ask for any reports, returns, statistics, accounts, and other information from any person, officer, state government, or any authority, which shall be bound to do so.
Section 23- Power to delegate
The Central Government is also authorised to delegate its powers under the Act, except the power to appoint authorities under Section 3(3) and to make rules under Section 25, to any officer, state government, or other authority. However, such delegation shall be subject to the requisite limitations and conditions, as may be specified in the notification in the Official Gazette.
Section 25- Power to make rules
To carry out the purposes of this Act, the central government may frame rules on the following matters:
The standards of environmental pollutants, beyond which the emission or discharge is prohibited under Section 7;
The procedure and safeguards for the handling of hazardous substances under Section 8;
The authority which is to be intimated about the occurrence or apprehension of occurrence of discharge of any pollutants in excess of the prescribed standards;
The manner in which samples of air, water, soil, or any other substance are to be taken under Section 11(1);
The form in which the notice of intention to take a sample for analysis is to be served under Section 11(3) (a).
The functions, procedures, and fees payable to environmental laboratories;
The qualifications of the Government Analyst appointed under Section 13;
The manner in which the notice of offence and the intention to make a complaint is to be given under Section 19(b);
The authority or officer who is required to submit the reports, information, or returns to the Central Government under Section 20;
Any other matter of concern, as may be prescribed.
Prevention, control, and abatement of environmental pollution
Section 7- Emission or discharge of environmental pollutants in excess of the standards
According to Section 7, it is prohibited for any person to discharge or emit any environmental pollutant in excess of the prescribed standards from any industry, operation, or process.
Section 8- Handling of hazardous substances
Section 8 lays down that all the persons handling any hazardous substances shall do so by complying with all the procedures and safeguards as may be prescribed.
Sample analysis
Section 12- Environmental laboratories
The Central Government is empowered to establish one or more environmental laboratories, or recognise any laboratory as an environmental laboratory to carry out the functions assigned under this Act. Rules regarding the functions, procedures, and other matters related to the environmental laboratory are to be framed by the Central Government by Notification in the Official Gazette.
Penal provisions under the Environment Protection Act
Section 15- General offences
Section 15 prescribes the penalty for general offences committed under this Act. if any person fails to comply with or contravenes any provisions of this Act, or rules made or orders or directions issued, he would be punishable with imprisonment for a term which may extend to five years or with a fine up to Rs. 1 Lakh, or with both. If the failure or contravention continues, then an additional fine which may extend to Rs. 5000 may be laid for every day the failure or contravention continues. And if this failure or contravention extends beyond one year after the date of convection, then the imprisonment can extend upto seven years.
Section 16- Offences by companies
For an offence committed by a company, Section 16 holds responsible the person who at the time the offence was committed was in charge of and responsible for the conduct of the company as well as the company. However, if it proved that any such person was liable exercised due diligence or that the offence was committed without his knowledge. Also, if it is proved that the offence was committed with the consent, connivance, or negligence of any director, manager, secretary, or another officer, then such person shall be liable to be proceeded against.
It is also specified that ‘company’ includes any body corporate, a firm, or any other association of individuals. The word ‘director’ also means ‘partner’ in relation to a firm.
Section 17- Offences by government departments
Section 17 lays down that for an offence committed by a government department, the Head of the Department shall be held responsible unless he proves that the offence was committed without his knowledge or that due diligence was exercised. However, if it is proved that the offence has been committed with the consent, connivance, or neglect of any officer other than the Head of the Department, then that officer shall be proceeded against and punished accordingly.
Other important provisions under the Environment Protection Act
Section 5A- Appeal to National Green Tribunal
Section 5A provides for the provision to appeal against an order or decision of the Appellate Authority under Section 31, by the aggrieved person. As per the Section, the appeal can be filed to the National Green Tribunal established under Section 3 of the National Green Tribunal Act, 2010.
Section 22- Bar of jurisdiction
Section 22 takes away the jurisdiction of civil courts from entertaining any suit or proceeding related to anything done or direction issued by the central government or an officer or authority in order to discharge the functions assigned by this Act.
Benefits of the Environment Protection Act
The following are some of the benefits of having the Act:
Protection of public health– It seeks to prevent, control and abate environment pollution so as to keep the environment clean and safe. This ensures that we get a healthy environment to live in, free from all sorts of pollutants harmful to our health. Thus, the Act aims to protect public health.
Promotes sustainable development– It seeks to prevent the exploitation of natural resources and preserve them for future generations.
Positively empowers the central government to take concrete steps to protect the environment– The Central Government has been given immense powers to not only appoint authorities to carry out various functions but also to take all the possible measures to further the objectives of the Act.
Strict penal provisions– The Act contains penal provisions for the breach of its provisions. It also lays down the liability of companies and government departments for polluting the environment.
Protecting ecological integrity– By providing for penal provisions and laying down various guidelines for the Central Government to take active steps for environment protection, the Act aims at preserving the ecological integrity by maintaining it in its unpolluted and natural form.
Drawbacks of the Environment Protection Act
Despite many effective provisions that the Act contains to protect the environment, it is not free from some limitations and drawbacks that dilute its effectiveness. Some of them are the following:
Too general in nature– The Act is a comprehensive legislation that tries to cover all the aspects of the environment but it does so only superficially. It covers only the broad aspects and leaves out the details.
Conflicting jurisdiction– Section 24 talks about the overriding effect of this Act. It mentions that if an offence is punishable by both this Act and some other legislation, then the offender is to be punished under the other law and not this. This provision lessens the effectiveness of this Act as an offender can easily flout the rules and protect himself from the penalty, prescribed under this Act.
Flexible penalty– The penal provisions prescribed under the Act are not adequately stringent and deterrent. In most of the provisions, there is no minimum penalty provided. Also, the offenders have been provided with a room to escape liability by proving things like the offence was committed without knowledge or that due diligence was exercised.
Weak citizens’ suit provision- Common citizens are not allowed to file a suit against the environmental offenders unless 60 days prior notice is given. Those 60 days could be easily utilised by the offender to wipe out the evidence of his fault. Only the central government or its authorised officers or authorities can file a complaint under this Act. it is important that citizens are given the right to file complaints in cases where they see the environment is being harmed.
Lack of coverage of certain specific aspects of environmental damage– The ambit of environment pollution has widened with the march of time and technological advancements. But the definitions under the Act have not kept up with the pace. Specifically, the definition of ‘pollutant’ covers only the particulate aspects. Nowadays, pollution caused by noise and radiation would fall out of this definition. It fails to cover soil erosion, effects of flood and drought, and other important aspects related to environmental degradation.
Important case laws regarding the Environment Protection Act
Vellore Citizens’ Welfare Forum v. Union of India (1996)
Facts
River Palar is a river in the State of Tamil Nadu, which is also one of the main sources of drinking and bathing water for the surrounding people. The petition was filed against excessive pollution caused by tanneries and other industries in the State. The Tamil Nadu Agricultural University Research Centre also revealed that a significant portion of agricultural land had turned either partially or completely unsuitable for cultivation.
Issue
Should the tanneries and industries be allowed to operate at the expense of damage to the surrounding environment?
Held
The Court highlighted that the main purpose of the Environment Protection Act is to create an authority under Section 3(3) with all the necessary powers and functions to protect and improve the environment. However, it was disappointing that not enough authorities were appointed for the same. Thus, it directed the Central Government to appoint an authority within one month and confer on it all the adequate powers required to deal with the situation created by tanneries and other polluting industries in Tamil Nadu. It also directed the authority to implement the ‘precautionary principle’ and ‘polluter pays principle’. A fund called ‘Environment Protection Fund’ was also to be constituted. The compensation received was to be employed for reversing the damage done to the environment and to the victims of the damage.
Narula Dyeing and Printing Works v. Union of India (1995)
Facts
The Narula Dyeing and Printing Works were allegedly discharging untreated pollutants into an irrigation canal resulting in significant water pollution. The State Government as well as Gujarat State Pollution Control Board issued directions under Section 5 of the Environment Protection Act to close down the factory. The Petitioners challenged this order citing that no personal hearing was provided to them and no time was granted to comply with the said directions.
Issue
Were the State Government and the Board right in closing down the factory without providing an opportunity for a personal hearing to the petitioners?
Held
The Gujarat High Court held that the government was absolutely right in issuing the orders for closing down the factory under Section 5. In cases where there is a grave injury caused to the environment, the government is empowered to dispense with the opportunity of hearing. It is intended to protect the environment from serious damage done by discharging untreated effluents.
M.C. Mehta v. Union of India (The Ganga Pollution Case) (1988)
Facts
Kanpur has been the hub of tannery business in India for a long time. Most of these industries are located on the southern banks of the river Ganga. These industries have been known to have contaminated the river. In 1985, a matchstick tossed into the river resulted in a massive fire in the river because of the presence of a toxic layer of chemicals formed on its surface. Thus, M.C. Mehta, a famous environment advocate, and an activist filed a petition in the Supreme Court against the tanneries and also the Municipal Corporation of Kanpur to stop them from discharging untreated effluents into the river, polluting it.
Issues involved
Whether the authorities had been negligent in protecting the river Ganga from pollution?
Should the smaller industries be aided financially for the installation of treatment plants and what standards should determine ‘smaller industries’?
Held
The Court held that there were several laws in force in India that sought to prevent environment pollution including the Environment Protection Act, 1986, and the Water (Prevention and Control of Pollution) Act, 1974. However, the authorities had been negligent in discharging their duties prescribed under these laws. It also observed that the financial capabilities of industries are irrelevant when considering the issue of installing primary treatment plants. Thus, each tannery was directed to at least install primary treatment plants, if not secondary plants.
The Court also laid down the following guidelines:
It was the duty of the Central Government to direct all the educational institutions across India to teach lessons on environment protection and improvement, at least for an hour every week.
Also, the Central Government must publish environment textbooks and distribute them among the students.
M.C. Mehta v. Union of India (The Vehicular Pollution Case) (1991)
Facts
Delhi is the National Capital of India and yet is included as one of the most polluted cities of the world. Over the years, the population of Delhi has become multifold and as one of the results of that, the pollution levels have been sky high. The main source of pollution has been the two-wheelers. Thus, M.C. Mehta filed the petition in the Apex Court to highlight the plight of the capital due to vehicular pollution and suggest practical solutions to the problem.
Issue involved
What steps should be taken to prevent and reduce vehicular pollution in the National Capital?
Held
With reference to technological and other solutions suggested by the petitioner and the literature presented, the Court passed the following interim orders:
It is the duty of the state under the DPSPs and also as mentioned in Section 51A as a fundamental duty, to protect the environment, life, flora, and fauna.
Awareness is the key to reducing environmental pollution. People must be made aware of the harmful effects of vehicular pollution on environmental health.
A committee was formed to look into vehicular pollution in the capital and suggest practical solutions to prevent it.
Conclusion
Post the Stockholm Conference and the Oleum gas leak case, the concern for the environment has magnified. The provisions of the Environment (Protection) Act, 1986 mark a positive step towards environment protection and improvement. It has stipulated some stringent regulations for the prevention, control, and abatement of environment pollution. The central government has been given a wide scope of powers to frame rules and appoint authorities to further the purposes of this Act. Additionally, the Act has facilitated the coming of several notifications for environment protection which have introduced new protective principles like the Environment Impact Assessment. It has also empowered the citizens to play a proactive role in environment protection by calling out the pollution-causing industries under EPA which has led to a string of environmentally sound judicial decisions. However, there are still some lacunas present in the Act that need to be filled with subsequent amendments to update the Act with changing times.
References
DR. PARAMJIT JASWAL, DR. NISHTHA JASWAL AND VIBHUTI JASWAL, ENVIRONMENTAL LAW (4th ed. 2015).
DR. S.C. TRIPATHI, ENVIRONMENTAL LAW (7th ed. 2019)
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