Ut res magis valeat quam pereat : legal maxim

By

-

February 23, 2022

This article is authored by Nidhi Bajaj, of Guru Nanak Dev University, Punjab. The article will take you through the meaning, basis and application of the important principle/maxim of interpretation of statutes, namely, ‘ut res magis valeat quam pereat’.

Table of Contents

Introduction

“Unless the words were so absolutely senseless that I could do nothing at all with them, I should be bound to find some meaning, and not to declare them void for uncertainty ” – Farwell J.

The maxim ‘ut res magis valeat quam pereat’ is an important principle of interpretation of statutes which literally means: “It may rather become operative than null”. The effect of this maxim is that an enacting provision or a statute has to be so construed to make it effective and operative.

Without any delay, let us dive into the meaning and other important aspects of this legal maxim.

Meaning of ut res magis valeat quam pereat

As mentioned above, the maxim ‘ut res magis valeat quam pereat’ means that it is better for a thing to have an effect than for it to become void. While interpreting any provision, the courts should not lean towards a construction that renders any provision or the statute void or futile. Hence, whenever the words used in a provision are imprecise, uncertain, and ambiguous thereby leading to the possibility of alternative constructions, then the courts should construe the provision in such a manner that none of the provisions of the statute is turned inoperative.

Basis of ut res magis valeat quam pereat

The maxim ut res magis valeat quam pereat is based on the following principles and presumptions:

A statute should not be declared void for sheer vagueness.
When the courts embark on interpreting a provision, the first and foremost necessity is that the law survives.
While pronouncing upon the constitutionality of a statute, the courts must start with the presumption in favor of its constitutionality.
The true interpretation of a provision or a statute is one that is in accordance with the intention of the legislature. The intention of the legislature cannot be otherwise than to give effect to all the provisions of the statute for achieving the object for which the law was enacted.
Adopting an interpretation by which any provision is rendered inoperative or unworkable will be adverse to the legislative intent.
The courts are to interpret the law and the making and repealing of legislation is the exclusive domain of the legislature. In such circumstances, any interpretation by which any provision or statute turns futile amounts to a rejection of law and that is not within the jurisdiction of courts.
Courts can strike down a law on the ground of unconstitutionality but the courts cannot introduce any vagueness or unconstitutionality in a provision by adopting a peculiar construction or construing a provision in a particular manner.

Application of ut res magis valeat quam pereat in Indian case laws

Avtar Singh v. the State of Punjab (1965) SC

In this case, the question arose regarding the interpretation of Section 39 of the Electricity Act, 1910. The appellant was convicted for theft of electricity from the Punjab State Electricity Board under Section 39 of the Electricity Act and the respondent proceeded against him under Section 379 of the Indian Penal Code, 1860. In the appeal filed by the appellant, he did not challenge the finding that he had committed the theft but only raised a question of law that his conviction was illegal in view of certain statutory provisions.

Section 39 of the Indian Electricity Act, 1910 provided that, “Whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code”. Hence, as per Section 39, an accused found guilty shall be punished under Section 379 of the I.P.C.

Section 50 of the Indian Electricity Act, 1910 provided for the procedure for conviction in the following terms: No prosecution shall be instituted against any person for any offence against the Act…. except at the instance of the Government or an Electrical Inspector, or of a person aggrieved by the same.

The appellant contended that he could not be convicted under Section 39 as the procedure for conviction as required by Section 50 was not followed. According to the appellant, his prosecution was bad and incompetent as it was not at the instance of the Government or an Electrical Inspector or a person aggrieved by the theft.

The Supreme Court held that since the offence is against the Electricity Act and not the I.P.C., the procedure provided under Section 50 must have been followed. The conviction of the appellant was set aside.

Thus, the Court, in this case applied the maxim ut res magis valeat quam pereat and avoided the construction that would have rendered Section 50 inoperative and futile.

KB Nagpur, MD (Ayurvedic) v. the Union of India (2012) SC

In this case, the question arose regarding the construction of Section 7(1) of the Indian Medicine Central Council Act, 1970. The said provision stated that the President, Vice President, or member of the Central Council shall continue until his successor shall have been duly elected or nominated. The clause “or until his successor shall have been duly elected or nominated, whichever is longer” was challenged as being unconstitutional and violative of Articles 14 and 16 of the Constitution.

The Supreme Court, while applying the maxim ut res magis valeat quam pereat, upheld the constitutionality of Section 7(1) and held that the said provision was made by Parliament to take care of situations when election to the post of President, Vice-President or member is delayed for various reasons thereby ensuring that there is no vacuum in the membership of the Central Council. The Court thus construed Section 7(1) so as to make it effective and operative.

D. Salbaba v. the Bar Council of India (2003) SC

The question of interpretation of Section 48AA of the Advocates Act 1961 came before the Supreme Court in this case. The petitioner, a physically challenged advocate, was also running an STD booth allotted to him in the handicapped person’s quota. A complaint was filed against him alleging professional misconduct. On 20.2.2001, the Bar Council of India directed him to surrender the booth but he failed to do so within the specified time period. The Bar Council of India gave an order dated 31.3.2001 directing the State Bar Council to delete the advocate’s name from the roll of advocates. The advocate subsequently surrendered the booth and filed a review petition against the order of the Bar Council. His petition was dismissed on 26.8.2001 on the ground that it was barred by limitation. The advocate filed an appeal before the Supreme Court.

Section 48AA of the Advocates Act provides for the review of the decision/order of the Bar Council of India within 60 days of the date of that order. While construing Section 48AA, the Supreme Court held that the expression ‘sixty days from the date of that order’ must be read so as to mean the date of communication, knowledge, actual or constructive, of the order, sought to be reviewed. While applying the maxim ut res magis valeat quam pereat, the Court thus interpreted Section 48AA to make it truly effective. The Supreme Court set aside the order of the Bar Council of India and the enrollment of the appellant was restored.

University of Calcutta and Others v. Pritam Rooj (2009) Cal HC

In this case, a student made an RTI application seeking inspection of his answer sheets which was turned down by the PIO i.e. Registrar of the University claiming exemption under Section 8(1) of the RTI Act, 2005. Thereafter, the applicant filed a writ petition before the Calcutta High Court seeking production of his answer sheets for re-evaluation by an expert examiner. Two conflicting viewpoints came before the Court, one was the view of public authorities that applicability and operation of the RTI Act would render the system unworkable and the other of the information seekers to gain access to the answer scripts by reason of the right conferred by it.

The Court observed that in such circumstances, the principle of ut res magis valeat quam pereat has to be applied. The Court allowed the writ petition and directed the CBSE to grant inspection of answer sheets to information seekers but the plea regarding re-evaluation was refused, leaving it open for the students to seek relief on this behalf in appropriate proceedings. The Court agreed with the decision in Nokes v. Doncaster Amalgamated Collieries Ltd.(1940) wherein it was held that where the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, a construction which would reduce the legislation to futility should be avoided and the bolder construction ought to be accepted based on the view that Parliament would legislate only for the purpose of bringing about an effective result.

Supreme Court’s view

In Tinsukhia Electric Supply Co. Ltd. v. the State of Assam (1990), the Hon’ble Supreme Court held that the courts strongly lean against construction that tends to reduce a statute to futility. A statute or any enacting provision therein must be so construed as to make it effective and operative. However, if a statute is absolutely vague and its language is wholly intractable and absolutely meaningless, the statute could be declared void for vagueness.
In Sankar Ram and Co. v. Kasi Naicker (2003), the Apex Court held that there exists a presumption that the legislative intent is to give effect to every part of the statute. It is a cardinal rule of construction that normally no word or provision should be considered redundant or superfluous in interpreting the provisions of a statute. It is not correct to say that a word in a statute is unnecessary or purposeless unless there are compelling reasons to say so after taking into consideration the scheme of the statute and the object it seeks to achieve.
In Maharashtra Land Development Corporation v. the State of Maharashtra (2010), the Supreme Court held that every word and phrase of a statute is to be understood in its context and must be given significance so that it is not rendered redundant.
In Badshah v. Urmila Badshah Godse (2014), the Supreme Court held that where there is a possibility of alternative constructions, the Court should adopt such construction that will enable the smooth functioning of the system for which the statute has been enacted and the construction that becomes a roadblock in achieving the purpose of the statute should be discarded. A construction that reduces the legislation to futility should be avoided.
In Swami Atmananda v. Sri Ramakrishna Tapovanam (2005), it was held by the Supreme Court that the statute must be read in such a manner so as to give effect to all the provisions thereof. A statute must be read reasonably and construed in a manner to make it workable.
In H.S. Vankani v. the State of Gujarat (2010), the Supreme Court observed that the maxim ut res magis valeat quam pereat also means that where the obvious intention of the statute gives rise to obstacles in implementing it, then the court must find ways to overcome those obstacles in order to avoid absurd results. It is a well-settled principle of interpretation of statutes that construction should not be put on a statutory provision that would lead to manifest absurdity, futility, palpable injustice, and absurd inconvenience or anomaly.

Conclusion

Lord Denning in the case of Fawcett Properties v. Buckingham County Council, (1960) has stated that “when a statute has some meaning even though it is obscure, or several meanings, even though there is little to choose between them, the courts have to say what meaning the statute is to bear, rather than reject it as a nullity.”

The legislature doesn’t use superfluous or insignificant words in a provision or statute, and therefore, while interpreting any word or terms in a statute a construction that makes the statute operative and the words pertinent must be preferred to the one that renders the words ineffective, void and useless.

References

D.N. Mathur, Interpretation of Statutes, Fifth Edn.
GP Singh: Principles of Statutory Interpretation, 14th Edn.
Prof. T. Bhattacharya, The Interpretation of Statutes

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

https://t.me/lawyerscommunity

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

Is Bitcoin legal in India

By

Shoronya Banerjee

-

February 23, 2022

0

This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of whether Bitcoin is legal in India or not. Alongside this, other relevant aspects that an individual should acknowledge concerning Bitcoin have been discussed in this article.

This article has been published by Shoronya Banerjee.

Table of Contents

Introduction

Cryptocurrency is a type of electronic money. It is thought to be more secure than actual money. Cryptocurrency transactions are secured using a technique known as cryptography. To put it another way, cryptography is a process of transforming understandable data into complex codes that are difficult to decipher. Digital currencies, alternative currencies, and virtual currencies are all subsets of cryptocurrencies. Bitcoin is one of the first cryptocurrencies, and it is a part of the global peer-to-peer payment system. In the year 2009, Bitcoin became the first cryptocurrency. As a result, the number of cryptocurrencies that have been generated has exploded, including Litecoin, Ethereum, Zcash, Dash, Ripple, and others. Given the government’s attempts to move towards a cashless economy, Bitcoins have slowly begun to acquire acceptance in India. However, it is important to note that Bitcoins are not yet centralized or regulated by any one agency, such as the Reserve Bank of India (RBI), which manages actual currency in India. In fact, peer-to-peer Bitcoin transactions are facilitated by blockchain technology, which functions as a public record for all transactions. The Finance Minister of India, Nirmala Sitharaman said in her presentation of the Union Budget 2022 that the government will implement a digital rupee in the fiscal year 2022-23 and levy a 30% tax on virtual assets thereby enabling hope on the regulation of virtual currencies in India. This article tries to clear the possible doubts surrounding Bitcoin by specifically focusing on its legality with respect to India.

What is Bitcoin

As of 2021, Bitcoin is the most frequently used digital money or e-currency. As it has a real-world equivalent, it’s termed convertible virtual money. A convertible virtual currency’s sale or exchange, as well as its usage to pay for goods or services, has tax consequences.

In 2008, a technical white paper was published that detailed the creation of Bitcoin, a new “peer to peer electronic payment system.” Traditional trust-based payment methods with the possibility of reversals, according to the research, result in high transaction costs and increase the amount of intermediation required by a “trusted third party” (in this case, a bank). As a result of the high transaction costs, small-value transactions cannot be completed digitally. Bitcoin and other public blockchains have no central authority and are seen as facilitators of total disruptive disintermediation. Permissioned blockchains are hosted on private computer networks with limited access and editing privileges, implying that central authorities retain administrative control.

Instead of introducing trust to transactions through ‘trust mechanisms’ or ‘trusted third parties,’ the article claimed that trust may be established cryptographically. Through calculations, this would secure a common order of transactions without the requirement for parties to know each other. Participants would be able to perform transactions without the requirement for a trusted third party as an intermediary, minimizing inefficiencies created by the more traditional approach. While the technology’s shape and form have changed since its inception, many characteristics have remained consistent, as has blockchain’s objective of facilitating more efficient trustworthy electronic transactions. The Swiss city of Zug was the first in the world to accept Bitcoin payments for tax purposes. They built a Blockchain-based voting mechanism and established the Blockchain Task Force to assist businesses in deploying the Blockchain architecture.

Is it legal in India to buy Bitcoin

Cryptocurrency is a sort of virtual currency that is decentralized and encrypted using cryptographic techniques. Decentralization indicates that there is no central authority in charge of keeping track of transactions. Instead, transaction data is recorded and shared by independent computers across multiple distributor networks. Distributed Ledger Technology helps facilitate the functioning of these currencies.

In India, there is no central body that has sanctioned or regulated Bitcoin as a payment method. Furthermore, there are no established laws, regulations, or standards for addressing conflicts that may emerge while dealing with Bitcoins. As a result, Bitcoin transactions have their own set of dangers. However, given this context, it is impossible to conclude that Bitcoins are unlawful, as there has been no prohibition on Bitcoins in India so far. In a judgment issued on February 25, 2019, the Supreme Court of India while deciding on the case of Internet and Mobile Association of India v. Reserve Bank of India (2018), ordered the government to develop cryptocurrency regulating laws. The case was rescheduled for hearing in the second week of July 2019 after being adjourned at the hearing on March 29, 2019.

Purchasing Bitcoin in India : an insight

Mining is an activity in which a person utilizes his/her computer skills to solve computationally challenging challenges. The act of solving such problems, which are fundamental to blockchain technology, aids in its upkeep. The miner is rewarded with fresh Bitcoins as a result of this, which is nothing more than Bitcoin creation or mining.

A Bitcoin miner is not for everyone. As a result, one might consider purchasing Bitcoins via Bitcoin exchanges and storing them in a digital form in an online Bitcoin wallet. Unicorn, Bitxoxo, Zebpay, Coinbase, and more Bitcoin exchanges are now available in India. These Bitcoins would be acquired in exchange for actual money. It’s worth noting that the current value of 1 Bitcoin is around INR 31,99,620 (It is to be noted that the valuation of Bitcoins keeps on changing as per the prevalent market situations). Though it is not yet a widespread occurrence in India, there are a few astute businessmen that take Bitcoins (rather than actual money) for the sale of goods or services.

Crypto as legal tender in India

In an interview with Press Trust of India (PTI), Finance Secretary TV Somanathan stated that, just as gold and diamonds are not legal cash despite their value, private cryptocurrencies would be walking in the same path. He further stated that “cryptocurrencies will never be accepted as legal currency. It is a legal tender, which means it can be used to settle debts. In India, only the Reserve Bank’s ‘Digital Rupee’ would be considered as legal money”. Except for El Salvador, which proclaimed Bitcoin legal cash in September of last year (2021), no other country has made crypto a legal tender. India is drafting laws to govern cryptocurrencies, but no draft has been made available to the public. Meanwhile, the Digital Rupee, a central bank-backed digital currency, will begin to circulate in the coming fiscal year (2022-2023), ushering in more affordable and effective currency management.

Indian laws governing Bitcoins

Currently, India does not own any specialized legislation for governing cryptocurrencies or virtual currencies. The Cryptocurrency and Regulation of Official Digital Currency Bill, 2021 is a proposed bill by the government towards cryptocurrencies, although the government’s stance on the same remains unclear. The same is also not available to the general public. If passed, the bill will be the first step towards the regulation of blockchain technology in the developing land of India. Section 2(47 A) of the Finance Bill, 2022 provides the definition of ‘virtual digital asset’ as any information or code or number or token (not being Indian currency or foreign currency), generated through cryptographic means or otherwise. The definition is exhaustive enough to include inherent powers of the Central Government to exclude any digital asset from the definition of the virtual digital asset provided the conditions specified in the provision are abided by. A timeline of events that have taken place with respect to the regulation of cryptos in India has been provided hereunder.

The period from 2013 till 2017

The existence of the first cryptocurrencies was recognized by the Indian laws came by means of circulars which were issued by the Reserve Bank of India from 2013 till 2017. These circulars were majorly those of caution. The warning circulars were aimed at vigilantly alerting users, holders, and traders of cryptocurrencies that included Bitcoin about the various risks ranging from the legal, operation, financial to that of customer protection and security-related issues, that the crypto associated individuals were exposing themselves to.

Union Budget 2018-2019

The former Finance Minister of India, Arun Jaitley had clearly specified in the Union Budget 2018-2019 speech that the distributed ledger system, also known as blockchain technology, allows any sequence of data or transactions to be organized without the use of middlemen. The government does not consider cryptocurrencies to be legal cash or coins and will take all necessary steps to prevent them from being used to finance illegal activities or as part of the payment system. The speech also included that the government will investigate the usage of blockchain technology in advance of the digital economy’s arrival.

The Reserve Bank of India on 5th April 2018 had issued a circular (Ring-fencing circular) titled, ‘Statement on Development and Regulatory Policies’ directing regulated entities (for example banks, non-banking financial companies, etc) to put a stop to dealings of virtual currencies. The circular stated that although technological advancements, especially those underpinning virtual currencies, have the potential to improve the financial system’s efficiency and inclusivity, these currencies, sometimes known as cryptocurrencies or crypto assets, raise issues about consumer protection, market integrity, and money laundering. The Reserve Bank has regularly warned users, holders, and dealers of virtual currencies, including Bitcoins, of the dangers of doing business with them. Because of the dangers, it has been determined that entities regulated by RBI would not engage with or offer services to any individual or corporate entity dealing with or settling VCs, with an immediate effect. Regulated entities that currently supply such services must terminate the agreement within a certain amount of time. This circular was challenged before the Supreme Court of India wherein the Court delivered its judgment on 4th March 2020, setting aside the aforementioned circular of RBI.

The Cryptocurrency judgment

Virtual currency exchanges have been effectively banned since 2018, but the Supreme Court recently gave them a boost in the case of Internet and Mobile Association vs. RBI. The Reserve Bank of India (RBI) prohibited organizations regulated by it from trading in or assisting transactions in virtual currencies in a circular dated April 6, 2018. The RBI attempted to ring-fence those enterprises operating in virtual currencies by cutting linkages between virtual currency exchanges and the traditional economy, without outright outlawing virtual currencies. The RBI’s competence to supervise India’s monetary and credit system included the regulation of virtual currencies, according to the Supreme Court. It did, however, rule that a complete prohibition on virtual currency exchanges was excessive and hence not a “reasonable limitation” under Article 19(2) of the Indian Constitution. Surprisingly, the Supreme Court found that the RBI lacked sufficient empirical evidence to show that virtual currencies had a negative impact on the traditional economy.

The petitioners’ main claim was that the RBI lacked the authority to control cryptocurrencies since they were neither ‘currency’ nor a ‘payment system,’ but rather ‘tradable commodities.’ It was further argued that trading in cryptocurrencies remained a lawful commercial activity in the absence of a legislative ban, and the challenged circular imposed an arbitrary and unconstitutional limitation on it. Furthermore, a complete ban on cryptocurrency trading was unreasonable because it violated the proportionality principle.

The RBI responded by claiming that cryptocurrency’s anonymity made it vulnerable to money laundering and terrorism financing. They further argued that widespread use of cryptocurrency could fundamentally undermine India’s credit system and monetary stability which was required to be controlled by the RBI has broad authority over the country’s economic policy.

Observations by the Supreme Court of India

After determining that the RBI was a specialized statutory body that acted consistently and in good faith, the Supreme Court considered whether the ban on virtual currency trading was a “reasonable restriction” on a fundamental right guaranteed under Article 19 (1)(g). The proportionality test was used to determine reasonableness. The Apex Court concluded that the RBI had behaved within its authority, consistently, and with due diligence. Furthermore, the RBI’s demand for empirical data to establish harm to the conventional economy did not prevent it from taking pre-emptive actions if it saw proper.
The Court had also observed that though the RBI was found to be within its authority to publish the circular, the absence of proof of the “proportional damage” incurred by RBI regulated enterprises in dealing with cryptocurrency businesses led to the circular being struck down. Despite the RBI finding no problems with the running of these exchanges, the Supreme Court concluded that the circular isolated the banking sector from cryptocurrency exchanges. Before publishing the circular, the RBI did not look into the possibility of less invasive alternatives, such as regulating Bitcoin trade and cryptocurrency exchanges.
The Supreme Court stated that cryptocurrencies can be accepted as a form of lawful payment for goods and services and that payment systems can be controlled by the RBI.

Inter-Ministerial Committee Report, 2019 on virtual currencies

In November 2017, a high-level Inter-Ministerial Committee was formed to evaluate the challenges surrounding virtual currencies and make recommendations for action. The Committee submitted its findings on February 28, 2019, and on July 22, 2019, the report was made public. The Committee’s scope includes looking at the policy and legal framework for virtual currency regulation. Key observations by the committee have been provided hereunder:

Virtual currency and its definition: A digitally transferable type of value, virtual money can be used as a means of trade, a store of value, or a unit of account. It does not have legal tender status. The Central Government guarantees legal tender, and all parties are legally obligated to accept it as a form of payment.
Issues related to virtual currencies: Due to a number of concerns, the Committee concluded that cryptocurrencies cannot replace traditional currencies. The major concerns have been provided hereunder:

Cryptocurrency prices fluctuate with the market. In less than a year, the value of Bitcoin cryptocurrency fell from about USD 20,000 in December 2017 to USD 3,800 in November 2018.
Cryptocurrencies are decentralized, making regulation difficult.
The design of cryptocurrencies contains various flaws that expose users to phishing cyber-attacks and ponzi scams. Furthermore, transactions are irreversible, which means that they cannot be reversed.
Cryptocurrencies necessitate a large amount of storage and processing power, which can have negative consequences for a country’s energy resources.
As cryptocurrencies are more anonymous, they are more prone to money laundering and terrorist financing.

3. Regulatory framework for virtual currencies: The Committee noted that different nations have varied regulatory frameworks in place when it comes to cryptocurrencies. Cryptocurrencies are accepted as a form of payment in countries such as Japan, Switzerland, and Thailand. They can be used as a medium of exchange (barter exchange) in Russia, but not as a means of payment. China, on the other hand, has outright banned virtual currency. No government has approved the use of virtual currencies as legal cash, according to the Committee. The Committee suggested that all private cryptocurrencies be prohibited in India, with the exception of those issued by the government, and that any conduct using cryptocurrencies be criminalized through legislation. It was also suggested that the government create a Standing Committee to keep track of global and local technology changes in the industry and address problems pertaining to virtual currencies as needed.

4. Official digital currency: The Committee noted that an official digital currency might offer a number of benefits over current payment systems. These include the accessibility of all transaction data, a less expensive alternative for cross-border payments, and distribution convenience and security. There are various dangers and concerns linked with its execution, according to the Committee. To issue digital money, significant infrastructure investment would be necessary. Validating transactions in a dispersed network would consume a lot of electricity and need a lot of processing power. Furthermore, there may be infrastructure issues due to power outages and internet access. The Committee advised that when it comes to the creation of an official digital currency in India, an open mind is required. It was suggested that, if necessary, the Ministry of Finance organize a committee including members from the RBI and the Ministry of Electronics and Information Technology (MEITY) to evaluate and design an acceptable digital currency model in India.

5. The Distributed Ledger Technology (DLT) and its application: While cryptocurrencies do not offer any advantages as a currency, the underlying technology (DLT) offers various potential uses, according to the Committee. As DLT makes it simpler to spot duplicate transactions, it may be used for fraud detection, processing KYC requirements, and insurance claim management. It can also be useful for reducing mistakes and frauds inland markets if it is utilized to keep track of land records. The Committee suggested that the Department of Economic Affairs identify DLT’s applications and take steps to make them easier to use. Similarly, authorities in the financial industry should assess the technology’s value in their particular domains.

Everything that 2020 had in store for cryptocurrencies

In 2020, the NITI Ayog published a strategy document recognizing many crucial areas blockchain technology can significantly benefit the country. The 59-page policy document, titled Blockchain: The India Strategy — Towards Enabling Ease of Business, Ease of Living, and Ease of Governance, is the first of two parts to be published by NITI Aayog. The first discussion paper addresses the fundamentals of distributed technology, as well as its potential framework for India, implementation obstacles, lessons learned from NITI Aayog’s own proofs-of-concept, application cases, and recommendations for India’s national blockchain strategy.

2021 and the road ahead for virtual currencies in India

The Government of India’s Ministry of Electronics and Information Technology (MeitY) had released a ‘National Strategy on Blockchain,’ (Draft Strategy) in January 2021, which is a step toward allowing trusted digital platforms and developing a blockchain framework for the creation of blockchain-based applications. The document explains Blockchain technology in simple terms, provides a worldwide context for its adoption, highlights national initiatives, and forecasts potential developmental trajectories. A survey on the use of this technology in various nations, as well as estimates and forecasts for the Global Blockchain Government Market, was provided. The document also discusses SWOT analysis, upcoming difficulties, technological and legal problems, and methods for developing the National Blockchain Framework and coordinating the strategy’s execution. The document provides a general overview of the Indian government’s blockchain intentions, but it does not provide precise implementation targets or deadlines. It is, however, intended as a guide for the government and industry stakeholders, as well as a boost for the Indian blockchain community at a time when crypto is facing regulatory scrutiny. It has identified a number of legal and regulatory barriers to blockchain implementation, including privacy concerns, the RBI’s skepticism of cryptocurrencies, and data localization requirements.

On 25th January 2021, the Reserve Bank of India a booklet titled “Payment and Settlement System in India, Journey in the Second Decade of Millennium 2010-2020” which defined Central Bank Digital Currencies (CBDC) as a digital form of legal tender and a central bank obligation denominated in a sovereign currency that appears on the central bank’s balance sheet. It takes the form of electronic currency that can be converted or traded in the same way that cash and traditional central bank deposits can. Payments are rapidly changing due to technological advancements. As a result, central banks all around the globe are examining whether they can use technology to create fiat money in digital form.

CBDC is a type of currency issued by a central bank that differs from paper currency (or polymer), according to the RBI. It is a sovereign currency in electronic form, and it will appear on a central bank’s balance sheet as a liability (currency in circulation). CBDCs should be able to be exchanged for cash.

Further, the Ministry of Corporate Affairs Notification on 24th March 2021 that amended Schedule III of the Companies Act, 2013 incorporated that Indian companies are required to disclose the following details in their balance sheet:

All profits and loss on transactions that involved cryptocurrency;
Amount of currency held as at the reporting date; and
Deposits or advances received from any person for trading or investing purposes in cryptocurrency.

A Clarificatory Circular dated 31st May 2021 was issued by the Reserve Bank of India owing to the fact that many banks were quoting the Ring-fencing circular which was earlier scrapped by the Apex Court. The circular had however clarified that banks and other entities may, however, continue to conduct customer due diligence in accordance with regulations governing standards for Know Your Customer (KYC), Anti-Money Laundering (AML), Combating Terrorist Financing (CFT), and obligations of regulated entities under the Prevention of Money Laundering Act (PMLA), 2002, as well as ensuring compliance with relevant provisions under the Foreign Exchange Management Act, 1999 (FEMA) for overseas remittances.

Taxability of Bitcoin in India

In the fiscal year 2022-23, the government plans to create a Digital Rupee, or Central Bank Digital Currency (CBDC). In addition, the Budget suggested a 30% tax on virtual assets (all private cryptocurrencies and virtual digital assets except digital rupee), thereby legalizing the trade of private cryptocurrencies and non-fungible tokens. This is in accordance with the Centre’s aims to create a fiat digital currency while prohibiting private virtual currencies from being used as legal money. The magnitude and frequency of these transactions have made it imperative to provide for a specific tax regime. From April 1, 2022, the government would charge a 30% tax on any gains generated from private digital assets. The provisions relating to 1% TDS will take effect on July 1, 2022, and profits will be taxed on April 1 of that year. There will be no deductions for any expenditures or allowances while calculating such income, save for the cost of purchase.

30% crypto tax and its implications in India

Indians have had different reactions to the 30% tax on Bitcoin income. Some argue that the government’s 30% tax rate on cryptocurrencies means it’s on par with gambling and speculation. Within hours of launching a petition to repeal the 30%, it had surpassed its initial goal of 50,000 signatures. Some people are relieved that a framework for taxing cryptocurrencies has been established. However, for most people, a 30% tax was the lesser of two evils, the other being an outright prohibition. In India, dealing in cryptocurrency is lawful as long as the government does not make it illegal. By definition, tax law cannot legitimize transactions or commodities. Tax rules apply even if there is no regulatory clarification.

Taxing crypto and its legal status

On 11th February, 2022, the Finance Minister of India, Nirmala Sitharaman clarified that by taxing cryptocurrency, the Indian government had exercised its sovereign rights to tax profits, and the question surrounding banning or not banning cryptos in India would be taken only after inputs from consultations are final. While addressing the Budget debate in Rajya Sabha on the decision to levy a 30% tax on gains from virtual assets, the Finance Minister stated that she is currently not doing anything to legalize or ban cryptocurrencies at this stage. Therefore, it is necessary to note that taxing digital assets does not signify that the same is legal in India presently.

Cryptocurrency scenario in foreign and domestic lands : a comparison

It’s fantastic to see that the benefits of Bitcoin have been emphasized in the Ministry of Electronics and Information Technology’s Draft National Strategy on Blockchain, 2021. From a monetary standpoint, cryptocurrency has the potential to be a significant and creative instrument for the economic sector. There are a few companies in India that take Bitcoin, and study is underway on the transparency, commercial business module, and individuals that deal with Bitcoin. Cryptocurrency legislation has the potential to put Indians and India as a country on a path to inventive prosperity. In light of the same, it is essential for us to discuss the status of cryptocurrency in developed nations like China, the United States of America, and the United Kingdom so as to compare the same with India.

Status of cryptocurrency in China

A lot of the world’s largest Bitcoin miners are located in China. China outlawed the purchase and sale of Bitcoins on Chinese exchanges in 2017. Many Chinese residents have switched to using foreign exchanges to exchange cryptocurrencies. The People’s Bank of China (PBC) is already circulating reports that China may also prohibit all access to domestic and international cryptocurrency exchanges and ICO websites. It’s unclear how much of an impact comparable Chinese cryptocurrency prohibitions will have, nonetheless, they will almost certainly add to the market’s gloom.

In terms of cryptocurrencies, the People’s Republic of China appears to be the most rigorous cryptocurrency regulation among the major economies. This is an odd fact, considering that Chinese Bitcoin miners accounted for more than half of all worldwide miners in 2017 and that cryptocurrency use in China grew at a faster rate than in any other country. Despite China’s tough stance on non-public cryptocurrency trading, the PBC has been researching the possibility of launching its own state-run cryptocurrency.

The United States of America and their take on cryptocurrency

In recent years, virtual currencies such as Bitcoin have gained popularity. Some employees are paid in Bitcoin, and many merchants accept e-currency as payment. Others keep Bitcoin as a capital asset. The Internal Revenue Service (IRS) recently clarified how virtual currency transactions are taxed.

Bitcoin used to pay for goods and services taxed as income

If you pay employees using Bitcoin, you must file W-2 forms with the IRS to disclose their profits.

1. You must convert the value of Bitcoin to US dollars on the day each payment is made and keep meticulous records.

2. Wages received in virtual currency are subject to the same withholding as wages paid in dollars.

Even if paid in Bitcoin, employees must record their overall W-2 compensation in dollars. Self-employed people who receive Bitcoin as a form of payment must convert the virtual currency to dollars on the day they receive it and disclose the results on their tax returns.

Bitcoin held as capital assets are taxed as property

When you own Bitcoin, it’s considered a capital asset, and you must handle it as such for tax reasons. The general tax principles that apply to real estate transactions will apply. Any gain or loss from the sale or exchange of the asset is taxed as a capital gain or loss, much like stocks or bonds. On exchanges, investors make typical gains or losses.

Bitcoin miners must report receipt of the virtual currency as income

Some people “mine” Bitcoin by validating Bitcoin transactions and maintaining the public Bitcoin transaction ledger using computer resources. According to the IRS, if a taxpayer successfully “mines” Bitcoins and earns money from it, whether in Bitcoin or another form, they must include it in their gross income after assessing the fair market dollar value of the virtual currency on the day it is received. If a Bitcoin miner is self-employed, the self-employment tax applies to gross earnings minus permitted tax deductions.

Status of Bitcoin in the United Kingdom

In the United Kingdom, there are no rigorous Bitcoin restrictions. Although Bitcoin does not have legal standing, it is typically recognized as foreign money for most reasons, including Value-Added Tax (VAT) and Goods and Service Tax (GST). Profits and losses from cryptocurrencies are subject to capital gains tax.
The UK government, on the other hand, intends to introduce certain legal processes in the Bitcoin industry. Their main objective is to make it mandatory for UK Bitcoin exchanges to perform due diligence on clients and to incorporate cryptocurrency platforms in anti-money laundering and counter-terrorism funding measures.
The United Kingdom has issued a warning about the dangers of investing in initial coin offerings (ICOs) and cryptocurrencies, but it has yet to enact any specific regulations.

Conclusion

Based on the information, the aforementioned facts, and the current state of affairs in the cryptocurrency sphere, it’s clear that there is a lack of clarity on cryptocurrency regulation in India. Well-founded cryptocurrency legislation that takes into account crypto buying and selling exchanges, blockchain technology, investors, and the people employed in such fields is the need of the hour, and such a law deserves more attention.

References

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

https://t.me/lawyerscommunity

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

Knowing the insider and trading is not necessarily “Insider Trading”

By

Shoronya Banerjee

-

February 23, 2022

0

This article has been written by Chitrakshi Mohnot, a student of the Institute of Company Secretaries of India, currently doing a Diploma in Law Firm Practice: Research, Drafting, Briefing, and Client Management by Lawsikho. This article has been edited by Yashprada (Associate, Lawsikho), Ruchika Mohapatra (Associate, Lawsikho), and Indrasish Majumder (Intern at LawSikho).

This article has been published by Shoronya Banerjee.

Table of Contents

Introduction

Recently in the USA, a man was held for profiting from insider trading in his brother-in-law’s company. The USA Board of insider trading – SEC based its decision solely on inferences. There was no substantial evidence that demonstrated that the man was involved in insider trading. Just because one knows an insider, it can not be concluded that the person has taken part in some form of insider trading, and besides, not all insider trading is illegal. The illegality of insider trading happens when a securities transaction (i.e., purchase or sale of stocks) is influenced by only a small group of people inside the company whose stocks are being traded in volume at the stock exchange.

The term “insider trading” is mainly perceived with a negative connotation. Various cases relating to insider trading have approbated a negative connotation to the term but Insider trading is not always illegal. The problem of insider trading emerged with the introduction of the concept of trading securities in the global market. In India, SEBI regulates the functioning of the capital market. It was established in 1992 under the SEBI Act 1992.

Meaning of ‘insider trading’

Insider trading is a practice of trading in shares based on unpublished price-sensitive information (UPSI). It involves buying or selling shares of a listed company not only by an insider but also involves directly or indirectly, key management personnel or the director of the company, or someone who has received the unpublished information. Using unpublished price-sensitive information, sometimes, can materially impact the stock price of the company in the stock exchange.

Meaning of ‘insider’

According to Regulation 2(1) (c) of SEBI (Prohibition of Insider Trading) Regulations, 2015, Insider means any person who is:

i) A connected person;

Or

ii) In possession of or having access to unpublished price-sensitive information (UPSI);

An ‘insider’ is someone who is a connected person or has access to UPSI. A connected person can be anyone who during the six months preceding the insider trade has been associated with the company in some way. This could be a company director or employee or their close relatives, or a legal counsel or banker to the company, or even an official of the stock exchanges or trustees or employees of an asset management company who has interacted with the company.

Meaning of UPSI

“Unpublished price sensitive information” means any information, relating to a company or its securities, directly or indirectly, that is not generally available which upon becoming generally available, is likely to materially affect the price of the securities and shall, ordinarily be including but not restricted to, information relating to the following:

(i) Financial results;

(ii) Dividends;

(iii) Change in capital structure;

(iv) Mergers, demergers, acquisitions, delisting, disposals, and expansion of business

And such other transactions;

(v) Changes in key managerial personnel.

UPSI alone is not restricted to information relating to a company’s significant capacity expansion, quarterly/annual financial results, mergers, amalgamation and acquisition deals, major shutdown plans, or any such significant activities that have not been openly made to the public at large. When insiders use the UPSI to conduct trades; if they are caught, they can be taken to task by the regulator.

For instance, a company’s insider informs his connected persons/acquaintances about upcoming business activities, and the latter passes on this information to his known persons who then buy the company’s shares, making substantial gains. Then, the insider and his connected persons/acquaintances can be booked for violation of insider trading norms.

Meaning of ‘connected person’

According to Regulation 2 (1) (d) of SEBI (Prohibition of Insider Trading) Regulations, 2015 “Connected Person” includes any person who is or has during the six months prior to the concerned act, been associated with the company, directly or indirectly, in any capacity including by reason of frequent communication with its officers or by being in any contractual, fiduciary or employment relationship or by being a director, officer or an employee of the company or holds any position including a professional or business relationship between himself and the company whether temporary or permanent, that allows such person, directly or indirectly, access to unpublished price sensitive information or is reasonably expected to allow such access.

The persons enumerated below shall also be deemed to be connected persons if such persons have access to UPSI or is reasonably expected to have access to UPSI.

1). An immediate relative or connected person.

2). A holding company or associate company or subsidiary company.

3). An intermediary as specified in Section 12 of SEBI Act or an employee or director thereof.

4). An investment company, trustee company, assets management company, or an employee or director thereof.

5). An official of a stock exchange or a clearinghouse or corporation.

6). A member of the board of trustees of a mutual fund or a member of the board thereof.

7). A member of the board of directors or an employee of a public financial institution as defined in Section 2(72) of the Companies Act, 2013.

8). An official or an employee of a self-regulatory organization recognised or authorised by the SEBI.

9). A concern, firm, Hindu undivided family, company, or an association of persons wherein a director of the company or his immediate relative or banker of the company, has more than ten percent of the holding of interest.

Legal insider trading and illegal insider trading

Legal insider trading

Insider trading sometimes is not always illegal. While trading with UPSI is illegal; all insider trading is not barred. Corporate insiders, officers, directors, employees, and large shareholders, buy and sell stock in their own companies. For instance by selling their ESOPs, etc., for personal needs. If such trades are disclosed to the stock exchanges as per SEBI Rules, it isn’t illegal. However, a company must notify the exchanges within a few days about the trading details of such insiders.

Many investors and traders use the information of insiders to identify potential companies for investment. In other words, if the insiders are buying the stock, they must know more about their company than everyone else, so they prefer to buy the stock. But when the insiders sell stock the investors or traders cannot be driven by their sentiments because they might be selling stocks due to varied personal reasons. Natural influence through an insider does not amount to insider trading. Additionally, even purchasing shares and then disclosing them to SEBI does not amount to legal insider trading.

Illegal insider trading

No insider who is in possession of unpublished price-sensitive information shall trade in securities that are listed or proposed to be listed on a stock exchange. When insider trading is done on the basis of UPSI and as the insider earns profit, it results in illegal insider trading. Directors and senior management are not the only people that can be convicted of insider trading; anyone with access to unpublished price-sensitive information can be convicted if they used the information to make illegal profits. Large companies can have hundreds of insiders, which can make analysing their buying and selling more difficult. Anybody who has material and unpublished price-sensitive information can commit the illegal act of insider trading. This means that nearly anybody, including brokers, family, friends, and employees, can be considered an insider.

According to Regulation 4 of SEBI (Prohibition of Insider Trading) Regulations, 2015, Insider is prohibited directly or indirectly to:-

Trade in securities that are listed or proposed to be listed when in possession of UPSI;
Trade in securities of the company except when the trading window is open and the insider is not in possession of UPSI.

Provided the restriction in 2 (i) above shall not apply to:

A transaction that is an off-market inter-se transfer between promoters who were in possession of the same UPSI without being in breach of these rules and both parties had made a conscious and informed trade decision; and

· B) Trades, pursuant to a trading plan set up in accordance with these rules.

An insider who has ceased to be associated with the Company shall not, for a period of six months from the date of such cessation, directly or indirectly trade in the Company’s Securities while in possession of UPSI.

Further, According to relevant provisions of SEBI (Prohibition of Insider Trading) Regulations, 2015, it has been stated that “All directors, officers, designated employees who buy or sell any number of shares of the company shall not enter into an opposite transaction, i.e. sell or buy any number of shares during the next six months following the prior transaction. All directors, officers, designated employees shall also not take positions in derivative transactions in the shares of the company at any time. In the case of subscription in the primary market (initial public offers), the above-mentioned entities shall hold their investments for a minimum period of 30 days.”

Conclusion

Nowadays, insider trading goes unnoticed for good reasons. Even after the implementation of the insider trading regulatory system, it is sometimes difficult to differentiate between guilty insiders and victims. Not all insider trading is unethical, especially insider trading done through the natural influence which does not amount to insider trading, and sometimes the investment community is also benefited by them at large. Thinkers in various fields have two-dimensional views, one is positive while the other is negative in nature.

Insider trading affects the integrity and transparency of capital markets. We always cannot rely on the laws or the mechanisms by the regulatory body for insider trading prevention. It totally depends on the insider as to how he preserves the price-sensitive information as trading on UPSI gives insiders an unfair advantage over regular investors and, it becomes the responsibility of the directors, officers, and other members of the company to keep a check on the insiders so that information is not leaked which will affect the goodwill of the company.

In order to curb the practice of insider trading activities, SEBI has made mechanisms and regulations that from time to time have failed, in many instances. Therefore, SEBI should try to inculcate such a habit of sharing the unethical practices of insiders and rewarding the person for his effort to curb the malpractices. Another measure is to make punishments more stringent and separate special fast track courts for speedy trials of such cases should be made. Although complete elimination of insider trading is not possible, overregulation is also not the clear solution, but trying to limit it is one factor that can be worked upon.

References

https://groww.in/blog/is-insider-trading-legal-in-india
https://www.sebi.gov.in/
Shoronya Banerjee, Insider trading in India : regulations and controlling authority’ (ipleaders)
Shradha Rajgiri, ‘AN ANALYSIS OF INSIDER TRADING IN INDIA’ (2019) 9 PRAMCI 137.
Himanshu Chahar, Sumeer Sodhi, ‘Insider Trading in India’ (Legal Service India).
J Sarkar & Subrata Sarkar, ‘Large Shareholder Activism in Corporate Governance in Developing Countries: Evidence from India, International Review of Finance’ (2000) 161-194.
https://bracewell.com/insights/knowing-insider-and-trading-not-necessarily-insider-trading
https://www.investopedia.com/articles/03/100803.asp
https://www.thehindubusinessline.com/opinion/columns/slate/all-you-wanted-to-know-about/article34755136.ece
https://www.livemint.com/Money/XimbObsT0sXoNcGyjzZwsO/Did-you-know–Insider-trading-is-not-always-illegal.html
https://economictimes.indiatimes.com/definition/insider-trading
http://www.ambergroupindia.com/code-conduct-prohibition-insider-trading/
https://www.pennarindia.com/code-conduct-insider-trading.php

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

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

https://t.me/lawyerscommunity

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

How can ID verification help secure online businesses

By

Rachit Garg

-

February 22, 2022

0

Table of Contents

Introduction

The development of technology and the internet has changed the way many companies conduct their business operations. It helped them reach new markets, attract new customers and transform various aspects of the business. But, with all the benefits the internet has to offer, comes some disadvantages. Cybercriminals quickly jumped on the wagon of technological development and used it to carry forward their criminal activities. Their attacks have become more sophisticated and difficult to trace, putting everyone in danger. Customers are increasingly flocking online to do business with you in an age where convenience reigns supreme and in-person connections are limited. Customers are coming in through your digital front door in greater numbers than ever before, even when we aren’t dealing with a global pandemic. This gives you the opportunity to reach out to new clients who would not have found you otherwise. It can, however, expose you to malicious actors seeking an easy target.

Luckily, cybersecurity sectors have been keeping up with their attacks and developing new ways of keeping businesses and individuals safe from the growing threat. You can use various strategies to secure your business, but ID verification comes tops the priority list, especially when it comes to the industries dealing with financial elements. They help you discover if your customers are original and keep fraudsters away from your business. SEON’s verification method explains how important identity verification is not only in fraud prevention but also for keeping you compliant with necessary regulations. An efficient identity verification system allows your business to avoid various fraudulent actions, such as account takeover, a fake or stolen identity, money laundering, and related activities.

What is Customer Identity Verification?

Identity verification, also known as identification proving, is the process of confirming an end user’s identity to guarantee that their digital identity matches their real-life identity. Customer identity verification’s purpose is to provide your company assurance that a user interacting with your brand is a real person who is who they say they are.

During the initial engagement with a new client, customer identity verification is most commonly used. Registering for a service, submitting an application, or creating an account are examples of these interactions. Because the risk of fraud is significant, the ability to authenticate identification during this initial encounter is critical.

You may request the consumer to authenticate their identity during onboarding, reducing the chance of fraudulent account creation and takeover. You increase security and safeguard prospective victims when you have trust that a new customer is who they say they are. If you work in the financial services business, you may use identity verification to fulfill Know Your Customer (KYC) requirements and comply with the Bank Secrecy Act’s Anti-Money Laundering (AML) laws.

Purpose of ID verification

Customers expect a frictionless experience when making purchases online or via mobile apps, and digital identity verification is an important part of retailers’ arsenal in the fight against identity fraud. It allows them to quickly spot and stop fraudsters in their tracks while providing the frictionless experience that customers demand. Identity verification guarantees that a procedure is being run by a genuine person and that they are who they say they are. This stops someone from acting on behalf of others without their permission, creating false identities, or conducting fraud.

Verification verifies that a label or direct component marking is functional and that codes are readable across the supply chain. Product returns, packaging waste, and other costs are reduced as a result of verification.

How can businesses confirm users’ identities?

Businesses must know who their customers are to avoid any fraudulent actions. Victims falling prey to fraud can have disastrous consequences for a business, not only from the financial side but also reputational. Users identity can be confirmed in three simple steps:

Identification: Collects and records user data at any time.
Identity verification: Verifies that provided data are legitimate and that you are not dealing with a stolen or fake identity.
Identity authentication: Confirms there were no changes and that verified data stays consistent each time a user comes to your site.

To ensure nobody takes advantage of your user account, identity authentication needs to be repeated when necessary, such as when a user accessing your site from a different device or unknown location. Multi-factor authentication can be extremely useful in this step, as it offers an additional layer of security.

Why is identity verification essential for securing your business?

Cybercrime is on the rise, and it doesn’t like it will stop growing any time soon. More and more businesses and individuals are in danger of becoming victims of an attack, and it is the end time to start fighting back. The best way to protect your business and its customers is not by reacting to fraudulent actions, it is preventing them from even happening.

It helps you stay compliant

Various governments and industries have certain regulations businesses need to comply with to conduct their business. By conducting ID verification, you are ensuring that you are offering your products or services only to individuals legally able to use them. This is important in all industries, but it is essential in the gambling or lending industry.

Increases security

Every time a customer accesses your business, they are putting their trust in you, and they believe you will keep their personal information safe. To keep your customers, you need to provide them with a secure environment. Knowing more about your customers allows you to notice the patterns in their interaction with your site and help you recognize any red flags that might indicate the fraud attempt. For example, a clear red flag would be if your user has always been accessing your site from the same IP address, but suddenly they are trying to connect from a completely different one or if they are trying to access it from another country. In this instance, you can request your user to authenticate their identity and confirm they are who they say they are. This can prevent account takeover or identity theft while causing minimal user friction.

Reducing the danger of financial fraud

Being a business owner means dealing with all the good and the bad, and unfortunately, financial fraud is as bad as it gets. Implementing identity verification will deter criminals whose intent was financial fraud, such as money laundering or card-not-present fraud.

Conclusion

E-commerce has exploded over the last few years. As a result of the pandemic, internet sales increased significantly as people stayed at home. Many consumers shopped for necessities more frequently or for the first time, utilized online grocery services, or ordered food via delivery applications. According to the United Nations, over one-fifth (19%) of all retail purchases are now made online, with more than 23% in the United Kingdom. Due to the growing prevalence of identity fraud, the e-commerce industry has had to step up its efforts to verify that transactions are safe and that consumers are real.

Fraudsters will use a larger range of increasingly sophisticated approaches as of 2021, leaving merchants feeling unprepared and vulnerable. Synthetic identity fraud, which blends actual and bogus consumer information to create a new identity, is a fast-growing problem that many online stories are concerned about. Online businesses must change their strategy to ensure that customers and transactions are constantly safeguarded. Increased use of real-time data and machine intelligence can assist internet companies in combating identity fraud at scale while guaranteeing the best possible user experience.

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

https://t.me/lawyerscommunity

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

All about Section 326, 326-A and 326-B of the Indian Penal Code, 1860

By

Rachit Garg

-

February 22, 2022

0

The article is written by Ansruta Debnath, a law student of National Law University Odisha. This article is an attempt to define the legal nitty-gritty of Section 326, 326-A and 326-B of the Indian Penal Code.

Table of Contents

Introduction

Section 326 of the Indian Penal Code, 1860 is all about grievous hurt caused by weapons. Further, Section 326-A and 326-B is the law against acid attacks. But grievous hurt is quite a narrow term as defined by Indian law. Thus, in many cases, the courts must determine whether a certain hurt is simple or grievous on a case-to-case basis. This article explores the language used in Sections 326, 326-A and 326-B, the type of offences they are, certain case laws and the amendments to these sections, to get a holistic understanding of what exactly these sections criminalize.

Decoding Section 326 IPC

Section 326 of the Indian Penal Code criminalises the act that involves voluntarily causing grievous hurt by dangerous weapons or means. Using any instrument or weapon for shooting, stabbing, cutting or doing anything else which is likely to cause death will be considered as part of the section. Further, grievous hurt by fire or any heated substance, poison or corrosive substance or any explosive which the victim is made to inhale, swallow or is transferred directly into the victim’s blood or by any kind of animal also comes under this section.

The punishment prescribed under Section 326 of the Penal Code is imprisonment for life or imprisonment for a term which might extend up to ten years as well as liability for fine. Up till 1955, in place of “imprisonment for life” the terms “transportation for life” was present. However, by Act 26 of 1955 i.e., Code of Criminal Procedure (Amendment ) Act, 1955, the words were substituted.

Transportation for life was a form of punishment that involved exile or banishment of the convict to a pre-determined locality for the duration of their natural life. This was a type of penalty that was often imposed in the Indian colonial era to deport Indian nationalists. After independence, by the 1955 Amendment Act, this method of punishment was removed by insertion of Section 53A in the Penal Code, which stated that “transportation for life” would henceforth mean “imprisonment for life”.

Having talked about what this Section says, this author would like to analyse the wordings of the same through the following observations-

Section 326 starts by “Whoever, except in the case provided for by Section 335…”. Section 335, thus, is the only exception to Section 326. The former reduces the punishment for grievous hurt if the following conditions are fulfilled-

Voluntarily causing grievous hurt on provocation

Thus, any person causing grievous hurt voluntarily but on provocation comes under Section 335. Herein, the punishment for voluntarily causing grievous hurt, which is still a crime, is somewhat mitigated as the fact that the accused was provoked is taken into account. In the case of Dalip Singh and Ors. v. State of Haryana (2008), the facts involved a petty altercation between the parties on an issue, but there was no prior enmity between them. The accused later asked the victim to come to a panchayat meeting the next day to resolve the issue and had no intention to hurt the victim. But, during the meeting, the offence was committed during a heated exchange of words. The Punjab and Haryana High Court opined that there was no sudden provocation by the victim and thus, the accused could not come under Section 335.

Without the knowledge or intention that such an action is likely to cause grievous hurt

An important element of Section 326 is that the grievous hurt caused must be done to cause hurt and with the knowledge of the consequences of the hurt. But, in certain instances, in a fit of rage, people might end up hurting someone to an extent they did not mean to. For those cases, to protect and mitigate the punishment of the accused, this provision is important. In Ahmed Ali v. State of Tripura (2009), the Supreme Court reduced the punishment of the accused to three months’ rigorous imprisonment from four years, while keeping the fine intact. It was held that because the accused was of a “tender age” during the commission of the offence and the accused was ignorant of the repercussions of his actions, the reduction of sentence was justified.

The next thing that must be understood is ‘grievous hurt’. The same is defined in Section 320 of the Penal Code of 1860. The ambit of Section 320 is quite narrow and in Mathai v. State of Kerala (2005), the Supreme Court held that the clauses of this Section must be strictly constructed and interpreted. The following kinds of hurt are considered to be ‘grievous’ in nature:

Emasculation, or castration which involves injury to or removal of male genitalia
Permanent loss of eyesight of either eye
Permanent loss of hearing of either ear
Loss of a limb or joint
Destruction or permanent impairing of the powers of any limb or joint
Permanent disfiguration of the head or face
Fracture or dislocation of a bone or tooth
Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.

In the case of State of Karnataka v. Siddegowda and Anr. (1995), the injury caused by a sharp-edged instrument to muscle nerves was said to be a simple hurt and not a grievous one. On the other hand, injury to the forehead with an axe was considered to be within Section 326 in A.C. Gangadhar v. State of Karnataka, (1998) and the punishment prescribed for one year of rigorous imprisonment was held to be justified.
In the case of Omanakuttan v. State of Kerala (2019), the Supreme Court was hearing a Special Leave Petition with regards to this issue. The accused had, in the year 1997, poured acid over the victim who the former hated. Apart from the pain and the scars, the victim also was unable to perform any everyday function. The Court held that the punishment awarded to him, being of simple imprisonment for a term of one year and a fine of Rs. 5,000/- with default stipulation, was rather inadequate than excessive. It upheld the punishment but refrained from increasing the sentence.
Section 326 is often used with the conjunction of Section 322 and 325. Section 322 talks about voluntarily causing grievous hurt while 325 prescribes the punishment for the same. The difference between these two sections and Section 326 is that the latter punishes voluntarily causing grievous hurt by dangerous weapons or means. The punishment for causing grievous hurt is lesser than when the same is done using dangerous weapons or means.

State amendment by Madhya Pradesh

Criminal laws and procedural laws are part of the Concurrent List of the Seventh Schedule and thus states can also amend the Indian Penal Code, provided their amendment is not contradictory to the Centre, which will lead to the prevalence of the Central law.

Section 326 has been slightly amended by only one state, i.e., Madhya Pradesh. The amendment was done by Section 4 of the Madhya Pradesh Act 2 of 2008, which substituted “Magistrate of the First Class” with “Court of Session”. A Sessions Court judge is the highest court of trial for any criminal case within a district.

Classification of the offence

The offence under this section is cognizable, non-bailable, non-compoundable and triable by a Magistrate of first-class, the meaning of which is explained below.

Cognizable offences: They are generally serious offences. The police or any other investigating officer can arrest the person accused of such an offence without acquiring a warrant from a Magistrate.
Non-bailable offences: In non-bailable offences, bail is not a matter of right as is in the case of bailable offences. Thus, the grant of bail to the accused in cases of non-bailable offences depends completely on the discretion of the judge who is trying the relevant case.
Non-compoundable offences: In cases of certain offences, generally minor ones, the judicial system of India allows compromises to be drawn between the accused and the victim to reach a conclusion without going through the hassle of a full-fledged criminal trial. Hence, in those cases, the offence is said to be compounded. But Section 326 is a non-compoundable offence, i.e., there must be a trial if a convincing case can be established against the accused.
Triable by a First Class Magistrate: Magistrates in Group-A Category by status with judicial powers are called Magistrate of the First Class. The Magistrate of First Class is the second-lowest judicial authority in a district for trying criminal cases.

Acid attacks and insertion of 326-A and 326-B

Sections 326-A and 326-B were inserted after Section 326 with the passing of Act 13 of 2013 i.e., the Criminal Law (Amendment) Act, 2013. By way of Section 5 of the Amendment Act, Section 326-A and Section 326-B were inserted within the Indian Penal Code.

Section 326-A and 326-B were specifically inserted by the 2013 Amendment Act to control and prevent acid-attacks, a type of gender-based crime against women. A report conducted by Cornell University of Indian news reports determined that 72% of cases reported from January 2002 to October 2010 included at least one female victim. Further, the report stated that in India, a primary reason for these attacks was the rejection of sexual or marital proposals. Acid attack perpetrators do not usually intend to kill their victims, but to cause long-lasting physical damage and emotional trauma. Such attackers commonly aim at the face, neck, and upper body. In some cases, perpetrators throw acid at sexual and reproductive areas of the body. Even if the perpetrator does not intend to cause death, the injuries sustained by the victim may still result in death. Indeed, even if the attacker intends to disfigure the victim, for example, as retaliation for rejecting a marriage proposal or to create an unexpected burden for the victim’s family as revenge against the family, the victim may nonetheless die due to severe wounds inflicted during the acid attack. On the other hand, there are also cases in which the perpetrator has forced the victim to drink acid, suggesting that the perpetrator intended to kill the victim.

The changes in Indian laws came about when Lakshmi, an acid-attack victim filed a PIL in 2006 to the Supreme Court of India asking for stricter laws for the sale of acids and proper provisions in the Penal Code for the protection of the victims of acid attacks. During the pendency of the case, Lakshmi v Union of India and Ors (2015), the Penal Code was amended and the appropriate sections were inserted. To avoid acid assaults, the Supreme Court outlawed the counter-sale of the chemical unless the vendor kept a record of the buyer’s information. Dealers could only sell the chemical provided the buyer presented a government-issued picture ID card and stated the reason for the purchase. The Supreme Court also ruled that victims would receive full medical aid, and ordered both public and private hospitals to provide free medical treatment to such victims. A certificate would be supplied to the victims verifying their identity, and no hospital should break these regulations without first informing the police. It was also decided that the State will pay the victim a minimum of 3 lakhs in compensation for aftercare and rehabilitation expenditures.

In the State of Maharastra v. Ankur Narayanlal Panwar (2019), the accused was originally given a death sentence by the Sessions Court of Mumbai in 2016 for hurling acid at a woman who had rejected his marriage proposal. But in 2019, the Bombay High Court commuted the death sentence to life imprisonment.

The State of Karnataka by Jalahalli Police Station v. Joseph Rodrigues (2006) was another famous acid-attack case. This was a time when 326-A and 326-B had not yet been inserted into the Penal Code. The accused was convicted under Section 326 but on appeal by the State, he was given life imprisonment after being convicted under Section 307 for attempting to murder the victim.

Section 326-A IPC

While Section 326 mentions grievous hurt by poison or any corrosive substance, Section 326-A elaborates on this issue. It says that voluntarily throwing and administering acids with the knowledge that it will cause hurt and with the intention to cause hurt is within the purview of this section. Acids include any substance which has ‘acidic’ or ‘corrosive’ properties and can cause bodily injury, either through scars or disfigurement, or temporary or permanent disability. Further, for this Section to take effect, damage, either permanent or partial, must be caused to the victim of the acid attack. It is irrelevant if the damage caused is made reversible by medical treatment.

The punishment prescribed is minimum imprisonment of ten years which can extend to imprisonment for life as well as a fine. The fine should be just and reasonable to meet the medical expenses for the treatment of the victim. Further, the fine should be paid directly to the victim. In an acid attack case called State of Himachal Pradesh v. Vijay Kumar (2019), the two accused were initially directed by the Himachal Pradesh High Court to pay Rs. 25,000 in fine along with the punishment of five years rigorous imprisonment. The Supreme Court however held that no leniency could be shown towards the accused because the victim had suffered emotional distress as well as pain that could not be compensated by sentencing the accused or by any more compensation. Yet, it held that both the accused had to pay the victim Rs 1,50,000 additionally within six months.

Classification of the offence

The offence under this Section is cognizable, non-bailable, and triable by a Court of Session. As is clear by the harsher punishment prescribed by Section 326-A, this offence is considered graver in nature than Section 326. Thus, with a higher level of scrutiny being required, the case must be tried by the highest criminal court of a district, i.e., the Court of Session.

Section 326-B IPC

Section 326 requires that bodily injury be caused to the victim. However, in cases when the attempt to injure someone is foiled and no damage occurs to the intended victim, the person attempting to commit the crime can also be punished by law. Section 326-B criminalises the act of voluntarily throwing or attempting to throw acid with the intention of causing permanent or partial damage, deformity, disability etc. to a person.

It is important to note that both Section 326-A and 326-B are gender-neutral sections; they aim to prevent acid-attack crimes against everyone on the gender spectrum.

The punishment prescribed for an attempt to commit an acid attack is minimum imprisonment of five years which might extend up to seven years as well as liability for a fine.

Classification of the offence

The offence under Section 326-B, like in 326-A is cognizable, non-bailable, and triable by a Court of Session.

Filing a case of an offence under 326, 326-A and 326-B

As mentioned above, the offences under these sections are all cognizable offences. As per Section 154 of the Code of Criminal Procedure (CrPC) of 1973, any information regarding the commission of a cognizable offence can be reported to the Police by a witness or victim or a person who has knowledge about the act. The said information will be recorded as the First Information Report or FIR. Further, a cognizable offence implies that there is no need for an arrest warrant from a magistrate, and the Police can arrest the accused if they have an adequate reason to believe that the crime has been committed (Section 41, CrPC). After the arrest, the accused is produced before the appropriate Magistrate for the trial.

A case can also be filed by filing a written or verbal complaint to a Magistrate of First Class with relation to an offence committed under Section 326 and to the Session Court Magistrate in relation to Section 326-A and 326-B. If a complaint is not made to the appropriate authority, then it is the duty of the Magistrate to direct the complainant to the right authority if the complaint is verbal or send the complaint, if written to the appropriate authority along with an endorsement to that effect (Section 201, CrPC). Under Section 202, the Magistrate can then direct the Police to conduct an investigation. If the Magistrate, after perusal of the Police investigation, statements of complainant and witnesses, is convinced that there is sufficient ground for proceeding further, a summons or warrant for arrest will be issued to the accused.

Conclusion

In conclusion, Section 326 penalises the offence of grievous hurt when it is caused by certain dangerous weapons or means. Further, Section 326-A and 326-B, specifically criminalize acid attacks as well as attempts to commit acid attacks. But not all types of hurt are grievous hurt and courts decide whether something is a dangerous weapon depending on the facts of the case. Section 326-A and 326-B, as mentioned above, was specifically inserted within the Penal Code to ensure that acid attack victims were adequately protected by law. Thus, while Section 326 is an adequate display of the importance of judicial interpretation to ensure that the conviction of perpetrators of acid-attack is not made uncertain because of different interpretations of Section 326, the other two sections were inserted.

References

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

https://t.me/lawyerscommunity

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

An exhaustive overview of types of maintenance

By

Vanshika Kapoor

-

February 22, 2022

0

This article has been written by Ayush Tiwari, a student of Symbiosis Law School, NOIDA. In this article, the author has written briefly about the types of maintenance under Hindu and Muslim Law.

This article has been published by Shoronya Banerjee.

Table of Contents

Introduction

In India, the right to seek maintenance is a statutory right that cannot be waived by an agreement. Maintenance may be provided through court proceedings (maintenance pendente lite) or after the proceedings are completed (maintenance final), which is permanent maintenance. Wives, children, and parents all have the right to seek maintenance. Under special personal laws, even husbands (who are not able to maintain themselves) are eligible to seek maintenance.

The legal definition of maintenance is the monetary support paid by one ex-spouse to the other following a formal separation or divorce. This financial assistance is for the wife’s or divorced wife’s livelihood, her children, property upkeep, and, in some situations, even to allow her to be appropriately represented in the dispute. Varied laws have different regulations about maintenance. However, Section 125 of the Code of Criminal Procedure, 1973, has a secular rule of maintenance. Hindus’ maintenance rules are found in their personal laws, whereas Muslims’ maintenance regulations are found in the Muslim Personal Law.

Maintenance under Hindu Law

In terms of maintenance, traditional Hindu law has now been codified. Now, there are a number of laws that apply to the maintenance of spouses, children, and their dependents. These laws are under the jurisdiction of the Family Courts, which were established according to the Family Courts Act of 1984. The following are the statutes under which maintenance is provided in Hindu Law:

The Hindu Marriage Act, 1955
The Hindu Adoption and Maintenance Act, 1956
The Code of Criminal Procedure

Section 2 of the Hindu Marriage Act, 1955 (HMA) says that Hindus, including Sikhs, Jains, and Buddhists, are subject to all laws of Hindu law.

Maintenance, according to Section 3(b) of the Hindu Adoption and Maintenance Act, 1956 (HAMA) consists of:

Provision for food, clothing, housing, education, and medical attention and treatment in all situations.
The reasonable expenditures of an event to her marriage in the case of an unmarried daughter.

Types of maintenance

Temporary maintenance

It is also known as maintenance pendente lite, because it is given by the courts while the divorce processes are still ongoing. The goal is to supply the claimant with enough money to cover his or her living expenses as well as the costs of the procedures. The court may grant it if you satisfy the requirements. This type of maintenance is addressed under Section 24 of the Hindu Marriage Act of 1955. Section 125(1) of the CrPC can also be used to make a claim. Such maintenance can be claimed by either spouse.

Permanent maintenance

As the name implies, it relates to the awarding of an amount on a regular basis or on a monthly basis after the proceedings of the court have been concluded. It is given in Section 25 of the Hindu Marriage Act, 1955. It is available to any of the spouses.

Who can claim maintenance

Maintenance can be claimed by:

Wife,
Children (legitimate and illegitimate sons, unwedded legitimate and illegitimate daughters, married daughter who is unable to support herself),
Parents,
Other dependants.

Criteria for calculating maintenance

According to Section 23(2) of the Hindu Adoptions and Maintenance Act, 1956 the amount of maintenance given to a wife, children, or old or infirm parents is determined by the following factors:

the parties’ position and status;
legitimate needs of the claimant;
if the claimant is living separately, if the separation is warranted;
the claimant’s property worth and any income received from it, or from the claimant’s own income, or from any other source;
the number of people who are entitled to maintenance under this Act.

According to Section 23(3) of the aforementioned act the amount of maintenance given to a dependant is determined by the following factors:

the worth of a deceased person’s estate once all of his debts have been paid;
the dependant’s provision, if any, under the deceased’s will;
the degree to which the two are related;
legitimate needs of the dependant ;
the dependant’s and the deceased’s past relations;
the value of the dependant’s property, as well as any income generated from it, his or her earnings, or any other source;
the number of dependants who are eligible to support under this Act.

Obligation to maintain in marriages

Hindu Marriage Act, 1955

The provisions of Sections 24 and 25 of the Hindu Marriage Act, 1955 deal with the awarding of maintenance. Section 24 lays the path for interim maintenance to be granted. The court can order the payment of maintenance to either the husband or the wife under this section, based on the facts of the case, such as whether the spouse requesting maintenance is employed and if the earnings of the spouse seeking maintenance are sufficient. The amount of support due under Section 24 is determined by the petitioner’s and respondent’s respective incomes. Section 25(1) provides for permanent support for either the husband or wife, depending on the situation. Sections 25(2) and 25(3) allow for the modification of the original maintenance order issued under Section 25(1) owing to a change in circumstances. The distinctive characteristic of these rules is that they allow a husband to demand maintenance from his wife if he is unable to work. In the case of Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy (2017), the plaintiff was Kalyan Dey Chowdhury. The panel of Justices R Banumathi and M M Santanagoudar determined that a man having a monthly salary of 95,527 had to pay up to 20,000 per month to his former wife.

The Trial Court in Rani Sethi v. Sunil Sethi (2011) held that the wife must pay maintenance and ordered her to pay the respondent Rs. 20,000/- and Rs. 10,000 as litigation expenses, as well as providing him with a Zen car for his use and convenience, based on the circumstances and facts of the case.

The Hindu Adoptions and Maintenance Act, 1956

The Hindu Adoption and Maintenance Act of 1956, Section 18(1), grants the woman the right to claim maintenance from her husband for the rest of her life.

Section 18(2) of the same Act says that a married Hindu woman is entitled to maintenance if she lives apart from her husband with his agreement. This Act lays forth the conditions under which a wife can live separate from her husband and receive maintenance:

if he has deserted her, that is, abandoned her without good cause and without her permission or against her will, or if he has intentionally neglected her;
if he has treated her with such harshness that she has a reasonable fear that living with her spouse will be hurtful or dangerous to her;
if he has a particularly severe type of leprosy;
if he has another living wife;
if he keeps a concubine in the same residence as his wife or resides with a concubine elsewhere on a regular basis;
if he converted to another religion after ceasing to be a Hindu;
if there is any other reason for them to live apart.

Section 18(3) – If a woman becomes chaste or converts to another religion and ceases to be a Hindu, she loses her right to claim a separate home and support. In addition, if one remarries after a divorce, entitlement to maintenance is lost.

The spousal maintenance is determined on the existence of various factors by the court as follows:

The duration of the marriage.
There is no other source of income. Before granting maintenance or alimony, the most significant issue to evaluate is whether the spouse requesting maintenance has a separate source of income or is totally reliant on his or her husband’s income.
Expenses associated with raising children.
Both parties’ age and health conditions.
Prior to the separation, both litigating parties standards of living.
Wife’s and husband’s earnings, as well as other assets.
Skills, abilities, and educational background of the spouse to support themselves and make a living, etc.

Obligation to maintain children, parents, and dependants

It is one’s responsibility to care for their child and elderly parents.

The Hindu Marriage Act of 1955

Under the HMA only maintenance for children is provided for. Under which, the court may issue orders relating to the custody, support, and education of children from time to time, or repeal any prior such order, according to Section 26. The court respects the preferences of the children while making such decrees.

The Hindu Adoptions and Maintenance Act of 1956

Under the HAMA maintenance of elderly parents as well as children are provided for. According to Section 20, it is the obligation of a Hindu, whether male or female, to support legitimate or illegitimate minor children, elderly parents, or an unmarried major daughter who are unable to support themselves by any means.

Section 21 and Section 22 of the HAMA — It gives some people, known as dependants, new rights. Dependents are relatives of a deceased Hindu who seek support from the deceased’s property held by heirs. All people to whom the deceased’s inheritance devolves are referred to as heirs. Dependants have a claim against the property, not against the heirs personally. It does not occur during the person’s lifetime; dependents are only identified after his or her death.

In the case of Abhilasha v. Prakash it was stated by the Court that “the ability of an unmarried daughter under Section 20 to seek maintenance from her father when she is unable to support herself is absolute, and the right provided to her under Section 20 is a personal law right that she can very effectively enforce against her father.”

In Padmja Sharma v. Ratanlal Sharma, the Court concluded that when a couple divorces and both of them earn well, it is not only the father’s responsibility to provide for the children’s support. In this situation, both the mother and the father are equally entitled to the child’s maintenance.

In the case of G.A. Kalla Maistry v Kanniammal, it was found that an illegitimate child born of extramarital intercourse can make a valid demand for support under Section 20.

Maintenance under Muslim Law

Maintenance for wife

The notion of maintenance in Muslim personal law is different and stands in stark contrast to the conceptions expressed in other groups’ personal laws in India. Maintenance is referred to as ‘nafqah’ in Muslim law. Food, clothing, and housing are all included. A woman is entitled to maintenance if her marriage is completed according to Muslim law and she has reached the age when she may give conjugal rights to her husband. The Muslim husband is not obligated to pay any amount of maintenance to his wife if the marriage is invalid or irregular unless there were insufficient witnesses. Because of the status of their marriage’s legitimacy and pre-nuptial arrangements, traditional Muslim law provides for maintenance to the woman from the husband. This commitment to maintain the wife is based on the woman’s income, but it is the husband’s responsibility to do so. However, such a duty is contingent on the woman remaining faithful to her husband and following his reasonable demands. This right of the woman is also subject to the condition that the wife is not obstinate or refuses to live with her husband without justification. Pre-nuptial agreements can be entered into by the separate parties to a marriage in addition to the husband’s responsibility.

The Muslim Women (Protection of Rights on Divorce) Act of 1986 is statutory legislation of Islamic divorce law. It codifies a number of critical maintenance rules. It specifies the amount of support that the wife is entitled to during her iddat period. It also allows a Muslim wife to get her unpaid mehr or dower, as well as other special possessions, enforced. This statute clearly says that a husband’s obligation to provide for his wife continues until the end of the iddat period. If the woman is unable to support herself after the iddat period has expired, she can seek reasonable and equitable maintenance from her relatives, who will be entitled to receive her property after her death.

Maintenance for a divorced Muslim woman till she remarries

A Muslim husband is obligated to provide adequate and equitable provision for the future of his divorced wife under Section (3) (a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. This also encompasses her maintenance. As a result, under Section 3 (1) (a) of the Act, the husband must provide a fair and reasonable provision for the wife’s support beyond the iddat period.

A divorced Muslim woman who has not remarried and is unable to support oneself after the iddat period can seek maintenance from her relatives who are entitled to her property following her death under Section 4 of this act.

When a Muslim woman does not have the right to maintenance under Muslim law

The instances in which a Muslim woman is not entitled to maintenance are as follows:

If she hasn’t attained puberty
When she has sufficiently abandoned her spouse and marital commitments and duties.
When she married another man
When she disobeys her husband’s fair demands.

Maintenance for children

Father’s responsibility to maintain children

The father’s responsibility to support his children is established by Muslim law. A father has a responsibility to support the following people:

Until his son reaches adolescence;
His daughter, who is still unmarried;
If his married daughter’s spouse is unable to provide for her;
If his major son is crippled, insane, or incapable of supporting himself.

According to Muslim law, a father has no obligation to care for his children if they refuse to live with him for no rational reason. A daughter’s right to demand support from her father is restricted; she can only do so in exceptional situations.

Mother’s responsibility to maintain children

Varied schools of Muslim law have different views on a mother’s responsibility to support her children. According to Hanafi Law, if the father is unable to financially support his children, the responsibility for their maintenance is given to the mother. However, according to Shefai Law, if the father is unable to care for his children, the responsibility for their maintenance is shifted to the grandfather, even if the mother is economically sound and capable of maintaining her children.

If a child lives with his mother after the divorce of one’s parents takes place, the mother is entitled to support from the father until her boy reaches maturity and her daughter legally marries.

Maintenance under Section 125 of the CrPC

A magistrate has the right under section 125 to order a person to pay maintenance if that person, although having sufficient resources, neglects or refuses to support the following people:

A wife who is unable to care for oneself (including divorced and not remarried),
His or her small child, whether legal or illegitimate, whether married or not unable to support oneself,
His or her legitimate or illegitimate child (who is not a married daughter) who has reached the age of majority. Such a child is unable to support itself due to a physical or mental defect or damage,
Married daughter until she reaches the age of majority if her husband is unable to support her.
His or her father or mother is unable to support themselves.

The requirements of the Code of Criminal Procedure, 1973 includes that a person should fulfil the moral commitment to society that he owes to his wife, children, and parents. The obligation is unquestionably lawful and obligatory on the individual. The provisions of the CrPC are secular, innocuous, and all-encompassing in character, and they apply to all groups in India, regardless of religion, caste, or creed. Whatever personal law the individual persons affected are led and regulated by, the requirements of Section 125 of the CrPC are enforceable.

The provisions in Chapter IX of the CrPC aims to protect the ignored wife, parent, and children (minor) from absolute poverty and devastation by providing a simple, quick, and effective limited relief. The CrPC’s Section 125 provides a quick solution for starvation and civil damage. It’s not the same as a husband’s civil liability. It acts as a stand-in for a simple summary method. It gives expression to a man’s basic fundamental obligation to support his wife, children, and elderly parents who are unable to support themselves. The primary concept underpinning the maintenance position under Section 125, CrPC is that no wife, small children, or elderly parents should be devoid of and subject to complete stress of desires in order to be lured to do crimes, etc. A Magistrate of the First Class is authorised to take quick action to avoid poverty under Section 125 of the CrPC.

Controversy regarding CrPC applying to Muslim women

The key topic of contention throughout the years was whether Section 125 applied to a Muslim woman wanting maintenance once her iddat period had ended. The full history of Muslim women’s judicial battles for their entitlement to maintenance under Section 125 has been examined in detail further.

Mohd Ahmed Khan v. Shah Bano

Facts

Mohd Ahmed Khan v. Shah Bano (1985) was the beginning of the fight for the right to maintenance. In this case, Shah Bano and Mohd Ahmad Khan decided to get married in Indore in 1932. Mohd Ahmed Khan married another woman who was much younger than him after 14 years of marriage. After marrying his second wife, Ahmed Khan asked Shah Bano and her 5 children to move to a separate residence in 1975. In April 1978, she filed an action for maintenance under Section 125, alleging that she was being denied the Rs 200 in maintenance that her husband had promised her. Shah Bano was separated by her husband in November 1978 after he said “Talaq” three times. In Muslims, such Talaq is irreversible.

In the trial court, the husband argued that Shah Bano was not entitled to support because she was no longer his lawfully married wife. He had previously given her the Mehr amount and taken care of her during her Iddat. The trial court dismissed the husband’s argument and directed him to pay her Rs 25 in maintenance each month. Shah Bano petitioned the Madhya Pradesh High Court to raise the maintenance payment from Rs 25 to Rs 179. The Madhya Pradesh High Court approved her appeal. Mohd. Ahmad Khan went to the Supreme Court, upset by the order.

Issues raised

Whether a divorced Muslim lady is included in the “WIFE” definition?
Whether it will take precedence over personal law?
What is the sum payable on divorce? Whether the meaning of Mehr or dower is not summed payable on divorce?
Whether there is a problem between Section 125 and Muslim Personal Law when it comes to a Muslim husband’s need to give maintenance for a divorced wife?

Judgment

The appeal of Mohd Ahmad Khan was dismissed by the Court and ruled that Section 125 is a secular maintenance provision. According to the Apex Court, Section 125(3) of the Code of Criminal Procedure extends to all citizens irrespective of faith, and so Section 125(3) of the Code of Criminal Procedure extends to Muslims without discrimination. The Court went on to say that if there is a dispute between personal law and Section 125, Section 125 takes precedence. It makes it perfectly clear that the provisions of Section 125 and the Muslim Personal Law do not conflict when it comes to the Muslim husband’s responsibility to give maintenance for a divorced wife who is unable to support herself.

In this case, the Apex Court correctly held that because a Muslim husband’s responsibility to his divorced wife is limited to the extent of ‘Iddat,’ although this circumstance does not envisage the rule of law stated in Section 125 of the CrPc., 1973, the husband’s duty to pay maintenance to the wife stretches further than the iddat period if the wife does not have adequate funds to maintain herself. The court went on to say that this provision, according to Muslim law, was very much against humanity or incorrect because a divorced woman was unable to maintain herself. The payment of Mehar by the husband upon divorce is insufficient to relieve him of his obligation to give the wife maintenance.

After a lengthy legal battle, the Supreme Court eventually decided that if a divorced woman is capable of caring for herself, the husbands’ legal obligation ends. However, if the wife is unable to support herself after the Iddat period, she would be entitled to maintenance or alimony under Section 125 of the CrPC.

Post Shah Bano judgment

Muslim fundamentalists were outraged by the decision given in Shah Bano’s case, which they saw as being in direct opposition to their religion. The Muslim Women (Protection of Rights of Divorce) Act 1986 was enacted by the then-Congress administration led by Rajiv Gandhi in order to pacify this segment of society. This law overturned the court’s decision and formalised the Muslim Law on Divorce, which barred a Muslim woman from the ability to seek support from her ex-husband. This act’s Section 3 states:

A Muslim lady is only allowed to be maintained within her period of iddat.
If she has children before or after the divorce, she is allowed to get maintained for a term of two years from the date of the children’s birth.
If her spouse fails to provide for her needs, she is entitled to compensation from the relatives who are supposed to receive her property when she passes away.

It’s ironic that the Act is called the Muslim Woman (Protection of Rights on Divorce) Act because it simultaneously deprived Muslim divorced women of any rights given by the Holy Quran.

Following this Adv. Danial Latifi, Shah Bano’s counsel, filed a case at the Apex Court challenging the Act’s applicability to divorced Muslim women following marriage. As a result, in Danial Latifi v Union of India (2001), the Court decided that Section 125 permits Muslim women seeking maintenance from their husbands for durations further than the Iddat, and that any arrangements for the wife’s sustenance beyond the Iddat must be established by the husband during the Iddat. It was also done to give regard to the constitutional validity of Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The legislative provision should be interpreted in such a way that it does not contradict the Indian Constitution‘s Articles 14, 15, and 21. This case struck the right balance between personal rights and secular obligations.

Conclusion

Both Hindu and Muslim personal laws feature provisions for maintenance that aim to guarantee that no one is denied a dignified life owing to a lack of financial means. Both faiths acknowledge the responsibility of family members to provide for those in the family who are entitled to it. Judicial declarations have modified and enlarged the Hindu Law of maintenance. However, there have been few revisions or disagreements over the legitimacy of classical law. The Muslim Law on maintenance has been the topic of several legal disputes that have been resolved by the courts throughout the years. Other family members’ rights to maintenance have been protected in both personal laws on a nearly equal footing. Although much has changed in both throughout the years, the goal remains the same: to protect the rights of family members.

References

https://www.lawctopus.com/academike/right-claim-maintenance-2/
https://blog.ipleaders.in/aspects-of-maintenance-of-children-under-muslim-law/
https://lawtimesjournal.in/maintenance-in-muslim-law/
Family Law I: Prof. Kusum
Family Law II: Prof. Kusum

An in-depth analysis of Section 9 of the CPC

By

Shoronya Banerjee

-

February 22, 2022

0

This article is written by Indrasish Majumder and Akshita Singh from National Law Unversity Odisha.

This article has been published by Shoronya Banerjee.

Introduction

Section 9 of the “Civil Procedure Code” explicates the jurisdiction of civil courts in India. The Section reads “subject to provisions herein contained courts shall have the jurisdiction to adjudicate on all suits of a civil nature barring those the cognizance of which are impliedly or expressly barred.” Two conditions need to be satisfied for a civil court to exert jurisdiction on a suit:

1. “The suit must be civil

2. The cognizance should not have been impliedly or expressly barred for such a suit.”

A civil suit has not been defined in any Act. Any suit of a non-criminal nature which ratifies or determines civil rights can be termed as a civil suit. The Supreme Court enunciated on the definition of a civil proceeding in Kehar Sinha Nihal Singh v. Custodian General as an approbation of private rights to corporations or human beings. The reward or retrieval of private property is the objective of a civil action. A civil action may, in other words, be defined as “a legal proceeding between two parties for the redressal, determination or implementation of private rights.”

The private rights and obligations of citizens are covered under the expression “suit of civil nature.” A civil suit shall not adjudicate on a political or religious question. However, if the moot question in a suit relates to property and certain ancillary questions involving caste or religion a decision relating to caste or religious rites shall not terminate the suit from being one of civil nature. The courts have the jurisdiction to decide on such cases, to adjudicate on the more important question which is civil.

Each phrase of the doctrine approbates a duty of the Apex Court to apply its jurisdiction for the purpose of allocation of rights. If the requirements under Section 9 are satisfied for a particular case, no court can deny examining the matter in concern. The dictionary definition of the word civil relates it to a citizen or an individual. The inherent qualities of a person/thing can be termed as his/her “nature.” The phrase “civil nature” is more pervasive than the phrase “civil proceeding.” The Supreme Court in PMA Metropolitan v. M.M Marthoma, enunciated the meaning of the term jurisdiction. The court observed, “the expensive nature of the section is demonstrated by the use of phraseology both positive and negative, the language used is simple but explicit and clear […]. It is structured based on a civilised jurisprudence that the absence of machinery for enforcement of rights renders it nugatory. The heading which is normally a key to the section brings out unequivocally that all civil suits are cognizable unless barred. What is meant by it is explained further by widening the ambit of the section by use of the word ‘shall’ and the expression all suits of civil nature unless expressly or impliedly barred.”

Phrases including words and expressions obligate the court to invoke its jurisdiction for the purpose of application of rights. Further mandated by the usage of the word “shall.” So long a suit pertains to the nature mentioned in the section, the same cannot be refused by the court. The expression “all suits of civil nature” amplifies this duty. The above contention was reaffirmed in the case of Shankar Narayanan v. K. Sreedevi, wherein the Apex Court observed: “Civil Court has primary jurisdiction in all types of civil matters as per Section 9 of CPC unless the action is expressly or impliedly barred.” The decision implied that a civil court’s jurisdiction can be ousted by the legislature by amending or adding a provision to the Act in itself. The court was instructed in the case of Shri Panch Nagar v. Purushottam Das, if any specific terms are lacking from any statute, to find an implied dismissal of the civil courts’ jurisdiction enumerated in any design, plan, or suitable provisions of the statute.

Therefore, a suit which concerns a question of property is a suit of civil nature, irrespective of whether such suits might include a question pertaining to religious ceremonies or rituals and the complainant bears the authority to commence a civil suit unless its jurisdiction is “expressly or impliedly” forbidden by the court. The burden to prove the jurisdiction of the court is on the parties which try to dismiss it. The statute dismissing the court’s jurisdiction must be well explained and established. The court is supposed to refer to the theory of jurisdiction in case there is any doubt concerning the same. While a civil court is authorised to decide on a suit concerning its jurisdiction, in consequence, however, it may be established that the court lacks the jurisdiction to adjudicate the case.

The project seeks to understand several nuances of Section 9 in a comprehensive and analytical way. With a view to understanding several crucial concepts under the section better, the project presents an analysis of section 9 along with several key judgments on the issue. The authors end by providing their own insight and comments on the section.

Understanding important concepts under Section 9

Jurisdiction

In the world of law, the first point that an attorney is supposed to prove is that the court which has been approached by him has the jurisdiction to try the suit. However, neither procedural nor substantive laws attempt to describe what is meant by the term “Jurisdiction.” The word “Jurisdiction” has stemmed from the Latin phrase “juris” which translates to “law” and “dicere” meaning “to speak”. In simple terms, it can be defined as “The power of a court to decide a case or issue a decree.”A court is said to have jurisdiction for the suit when it not only has the power to try the suit but can also pass orders or decrees in relation to it.

In the year 1928, the Calcutta High Court attempted to explain the meaning of the term jurisdiction in the case of Hriday Nath Roy v. Akhil Chandra Roy, the court stated: “jurisdiction is the power of the court to hear and determine a cause, to adjudicate and exercise judicial powers in relation to it.” It went further and demarcated three different categories of jurisdictions:

Subject matter jurisdiction – Subject matter implies the main or the fundamental matter of a particular nature which is under question. Subject matter jurisdiction essentially states whether the court has the authority to try the subject matter in question. It primarily specifies whether the courts are allowed to try matters of a certain nature. If not, then the courts cannot try that particular case.
Pecuniary jurisdiction – Pecuniary implies “related to capital”. It means of a certain monetary value. A court can have certain financial limitations which the courts should adhere to and beyond which the courts cannot try the matter. The primary aim of setting a pecuniary jurisdiction is to preclude the higher courts from getting burdened and at the same time extend help to the parties.
Territorial jurisdiction – Also known as local jurisdiction, territorial jurisdiction lays down the geographical limits of a court’s authority. It ensures that such limits of courts are clarified clearly and specifically. No court is authorized to try matters which exist beyond their respective territorial limit.

Apart from the above three classifications, jurisdictions are also divided on the basis of “original”, and “appellate jurisdiction” or “exclusive” and “concurrent jurisdiction.” Additionally, the jurisdiction of the court is not decided on the arguments of the defense but on the basis of the allegations made in the complaint. An order passed by a court lacking jurisdiction is nullified and is unenforceable by law. When it comes to civil courts they are governed by the “Code of Civil Procedure 1908”, which is procedural law. The jurisdiction of the civil courts is dealt with under Section 9 of the Code of Civil Procedure, 1908.

Suits of civil nature

The term civil denotes rights and “remedies sought by action”. It relates to a suit that is not criminal in nature and concerns the rights of and wrongs done to individuals regarded as private persons. A cursory glance at Section 9 clarifies that all civil courts, subject to the provisions of the act, have the jurisdiction to try all suits of civil nature “except the suit of which cognizance is either expressly or impliedly barred.” Therefore, essentially any suit of civil nature can be tried by the court unless it is either expressly or impliedly barred. This implies that a court cannot try any matter which is not of civil nature.

As can be observed from the explanations, suits of civil nature mean a suit that is presented before a Civil Court for adjudication of a civil matter, more specifically to determine the right of property or office. In the landmark case, Shankar Narayan Potti v. K Sreedevi, the Apex Court held that ”it is obvious that in all type of civil dispute civil courts have inherited jurisdiction as per Section 9 of the CPC unless a part of Jurisdiction is carved out from such jurisdiction, expressly or by necessary implication by any statutory provision conferred on any other tribunal or authority.”

Expressly or impliedly barred

Suits expressly barred – A suit barred by an enactment for the time being in force is said to be expressly barred. A competent legislature can bar jurisdiction of civil courts with respect to a particular class of suits of a civil nature, provided that, in doing so, it keeps itself within the field of legislation conferred on it and does not contravene any provision of the Constitution. Hence, a suit is said to expressly barred when it is prohibited by the statute for the time being in force.
Suits impliedly barred – A suit barred by general principles of law is said to be impliedly barred. Where the statute provides a specific remedy, it deprives the person of a remedy of any other form. Similarly, even civil suits are barred from the cognizance of a civil court on the ground of public policy. A suit is said to be impliedly barred when it is said to be excluded by general principles of law. When a specific remedy is given by statute, it, therefore, denies a person who requires a remedy of any different form than is given by statute.”

In Raja Ram Kumar Bhargava v. Union of India, the Supreme Court set down certain important considerations for the determination of implied exclusion of Civil Court’s jurisdiction. They are:

a) Whether a right, not pre-existing in common law has been created by a statute.

b) That statute itself provided machinery for enforcement of that right.

c) Both rights and remedies have been created uno flatu.

d) A finality is intended to be the result of the statutory proceedings.

Unless the relevant statute entails a provision expressly or indicates to an inevitable/necessary implication stating the jurisdiction of the civil courts is excluded to try the immediate case, exclusion of the jurisdiction of civil courts will not be assumed. The general rule states the presumption would be made in favor of the existence of a right to sue in a civil court, whereas exclusion of the same would be considered an exception. If at all there are doubts regarding the ousting of the jurisdiction of a civil court, the court shall make an interpretation that would maintain the jurisdiction.

Relevant rights under the Section

The Section covers within its ambit three important rights. First is the right to property. This right implies and includes “movable, immovable, intellectual, inheritable property and property that arise out of any contract, agreement, litigation, or out of any other civil rights.” Other than the former, we also have the right to the office, as given under the explanation. As against the right to property which only has to do with ownership, the right to office implies a right to both acquire a position and subsequently exercise it. This could include any position in a job, religion, etc.

In what has spurred controversy and debate, the right to religion has also been declared as a civil right. It must be noted that any suit, the primary question of which pertains to a religion or a caste, does not belong to a civil nature. However, if such question in a suit is of a civil nature (right to property or to an office) and it so happens that the adjudication incidentally involves an element that involves a dispute relating to caste or to religious rites and ceremonies, the suit does not immediately cease to be of a civil nature.

Analysis of Section 9 of CPC

Presumption and scope

It is a general presumption that when there’s a suit pending before a civil court, it would have the jurisdiction to try the same. If a party wishes to challenge the competence of the court, then it must prove it with relevant authorities as to why that is the case and such claims are not accepted on a prima facie perusal of facts. Further, even if there is a claim of non-competence of the court to hear the particular claim, the court may still exercise jurisdiction for cases wherein statutory bodies or tribunals have heard cases beyond their jurisdiction.

It is quite clear that Section 9 of the CPC covers “the jurisdiction of a Court to try the suit.” However, it is pertinent to note that there are two essential prerequisites that need to be fulfilled before the hearing of the suit. Firstly, there must be a “cause of action.” Without proving that there was a proper cause of action, could lead to the suit being summarily rejected. Additionally, courts have opined that suits for temporary injunctions are not maintainable.

Secondly, there needs to be an inherent right of the plaintiff to sue the defendant. It is pertinent to note that common law grants this as an inherent right upon all individuals for the filing of a suit. However, this would differ in cases of appeal as in the case of appeals there are statutory provisions that govern who may and who may not appeal, but that is not the case in the case of instituting suits. Furthermore, the principles that are to be applied have been very clearly laid down by a Constitution Bench of the Hon’ble Supreme Court wherein the object and scope of Section 9 have been discussed.

Limitations concerning the exclusion of jurisdiction

Common assumption dictates, civil courts have the jurisdiction to try any suit and the prosecution has the power to initiate a suit of civil nature in a civil court independent of any statute unless expressly or impliedly barred. However, the above-stated rule is not without exceptions. A court has the jurisdiction to adjudicate whether the provisions of the act and rules enumerated thereunder have or have not been complied with if the order is in contradiction to the law, mala fide, ultra vires, perverse, arbitrary, ‘purported’, or is in contradiction to the principles of natural justice, is based on “no evidence” rule and so forth. The Privy Council in Secretary of State v. Mask and Co., commented it is the established law that jurisdiction of civil courts is not supposed to be expressly inferred but should have been impliedly barred or explicitly expressed by any statute. The court further enunciated that civil courts have the jurisdiction to examine cases which may not have observed the fundamental principles of the judicial process.

In-State of A.P v. Majeta LaxmiKanth Rao, the Supreme Court examined the elimination of jurisdiction of the civil courts. First, the court needs to decide on the legislative intent to remove the suit either directly or impliedly. While the courts are obliged to discern the causes for the exclusion of the jurisdiction of civil courts and find an explanation for the same, the reason is not subject to judicial examination. Thereafter, the court after being convinced of the reasons needs to ponder on whether the statute prohibiting the jurisdiction allows for an alternative remedy. The civil court’s jurisdiction cannot be obliterated if no alternative remedy is stated. However, in Balawwa v. Hasanabi, it was propounded that the jurisdiction of a civil court is excluded only to such extent concerning a tribunal established by a statute when the support approbated by the tribunal is questioned.

Justice SubbaRao, J. in the leading case of Radha Kishan v. Ludhiana Municipality, enumerated the appropriate legal position concerning the jurisdiction of courts under Section 9 of the Civil Procedure Code, the court shall have jurisdiction to try all suits of civil nature except suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of civil courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of civil courts; even if there was no such specific exclusion, if it creates liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the civil court’s jurisdiction is not completely ousted. A suit in a civil court will always question the order of a tribunal created by statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the act but in violation of its provisions.”

A glance at the landmark judgments

The above discussion clarifies the jurisdiction of civil courts is all-encompassing unless expressly excluded by law or intentions arising from such law.

Dhulabhai v. State of M.P.

Justice Hidayatulla, in the case of Dhulabhai v. State of M.P,enumerated certain principles concerning the exclusion of jurisdiction of civil courts. The facts and the principles laid down in the aforementioned case are enlisted below.

Facts

The appellants, in this case, were tobacco dealers operating in Ujjain. Tobacco is bought and sold for the purposes of smoking, eating, and preparing bidis. During the same time the Madhya Bharat Sales Tax Act, 1950 was enumerated on 1st May 1950. As per Section 3 of the Act, every dealer whose business in the last year exceeded by rupees 12,000 was liable to pay a tax concerning the sales. It was explicated under Section 5 of the Act, the tax was of a single point nature, and the proviso specified the government is liable to point out the point of sales when the tax was to be paid. The Section specified the maximum and minimum level of tax, allowing the respective government to decide the actual rate i.e even though the tax rate is not prescribed the minimum and maximum level is. A plethora of notifications were issued by the government from April 1950 to January 1954 imposing taxes at different rates on tobacco as mentioned above. However, the tax was not collected at the above-stated rate. In Madhya Pradesh, the tax was not imposed on the purchase or sale of tobacco. The tax was accumulated by authorities in varying amounts for different quarters from the plaintiff. The plaintiff issued notices under Section 80 of the Civil Procedure Code explaining no suit can be instituted against the public officer/government until the completion of the two months’ notice in his official duty.

Principles laid down

Wherein a finality is attributed to orders of special tribunals, the jurisdiction of civil courts is assumed to be excluded if sufficient remedy to do what normally civil courts in a suit would do. However, cases wherein the provisions of a particular Act has not been adhered to or the fundamental principles of judicial procedure have not been complied with by a statutory tribunal is excluded by the provision.
Where an explicit bar exists to the jurisdiction of a court, finding the reasonableness and sufficiency of the provided remedies by examining the scheme of a particular Act may be deemed relevant but indecisive for preserving the jurisdiction of a civil court. However, when no definite exclusion exists, scrutiny of the remedies and scheme of a particular act to glean the intent becomes essential and the result of the probe may be decisive. It is necessary in the latter case to glean whether the statute enumerates any special rights or liabilities and provides for its determination. The statute further enumerates questions pertaining to the same right and liability as determined by the constituted tribunals and whether the remedies related to actions in civil courts are stipulated by the said statute or not.
Any suit challenging the provisions of a particular act as ultra vires cannot be brought before the tribunals created under this Act. Neither can the High courts delve into such a question on a reference or revisions from decisions of tribunals.
A suit may be filed in a case wherein the constitutionality of a provision is questioned or is deemed unconstitutional.
A suit is said to lie where a particular Act does not consist of any machinery for a refund of the tax collected illegally or over constitutional limitations.
A civil suit cannot be brought forth before the court if the directions of the authorities are deemed final and an explicit prohibition is enumerated in the Act. Concerns regarding the correctness of an assessment, barring questions concerning its constitutionality are to be decided by the requisite authorities. The Scheme of a particular Act in either case must be scrutinised considering the relevance of the enquiry.
Unless the aforementioned conditions are satisfied, questions concerning an exclusion of the jurisdiction of a civil court are not to be inferred.

The principles enumerated are essential in deciding the exactitude of the assessment of orders under axing statutes.

Premier Automobiles v. K.D. Wadke

The Supreme Court in Premier Automobiles v. K.D. Wadke, propounded certain directions concerning industrial disputes relevant to the jurisdiction of civil courts. The facts and the principles laid down are mentioned below.

Facts

The case relates to Section 18(1) of the Industrial Disputes Act concerning the dispute between employer and employee and whether such a dispute can be decided by a civil court. The jurisdiction of the civil court concerning industrial dispute principles. Section 10A of the Industrial Disputes Act of arbitration-jurisdiction of civil courts to adjudicate.

Principles laid down

If the suit is not an industrial dispute and it does not correspond to the enforcement of any rights under the Industrial Disputes Act, it shall come under the purview of civil courts.
If the dispute is an industrial conflict arising from a right or liability under the public or general law and not under the ID Act, the jurisdiction of the civil court is to be decided by the appellant (person concerned), his/her remedy for the relief capable of being granted in a particular remedy.
If the Industrial dispute concerns the enforcement of any right or obligation enumerated under the Act, the suitor can get a remedy only under the Industrial Disputes Act.

Rajasthan State Road Corporation v. Krishna Kant

The Supreme Court recapitulated the principles applicable to industrial disputes after referring to a plethora of leading decisions on the subject, in Rajasthan State Road Corporation v. Krishna Kant.

Facts

The respondents in this immediate case are employees of the appellant corporation i.e Rajasthan State Board Transport Corporation. The services of the employees were discontinued following disciplinary proceedings initiated against them on charges of misconduct. The respondents contended in the civil suits filed by them that the directive terminating their services is illegal. They further contended for a declaration by the court that they still continued working for the corporation and were therefore eligible for all consequential benefits. The suit was challenged by the corporation on the grounds of lack of jurisdiction of civil courts to entertain the suit.

Principles laid down

1. When a suit arises from a general law of contract in a civil court i.e. and reliefs are claimed on basis of the general law of contract, it cannot be deemed maintainable, even if the dispute is of an “industrial nature” within the meaning of “section 2(k)” or “section 2-A of the Industrial Disputes Act, 1947.”

2. However, wherein the conflict involves observance, recognition, or enforcement of any rights and obligations arising out of the Industrial Dispute Act, the way to approach the forum is under the auspices of the same act “Section 2(k)”, “2-A”.

3. It is incorrect to state the remedies under the “Industrial Disputes Act” are not so effective because the access to a forum is contingent on a reference made by the appropriate government.

4. Though the government may approve the power to examine, the power disbursed is not the power to suggest but decide.

5. Consistent with the aforesaid law i.e. command the parliament and state legislature to enact a provision enabling a workman to address the labour court i.e. without the government’s recommendation in a suit of Industrial Dispute under “Section 2-A” of the Act. This would help in the removal of any misgivings concerning the effectiveness of the remedies enumerated under the Industrial Disputes Act.

Lastly, the Supreme Court recently in ChandrakantTukaram v. Municipal Corporation, of Ahmedabad, reinstated the principles enumerated in previous decisions. The appeals in concern are directed against three judgments delivered by the Division Bench of Gujrat High Court by a Single Judge dated 22^ndSeptember 1990. A civil suit was filed by the workmen of Ahmedabad Municipal Corporation challenging the orders of termination/dismissal of service. Four issues were framed by the city civil court, one of which challenged the jurisdiction of the civil court to entertain the suit.

It was held that “it cannot be disputed that the procedure followed by civil courts are too lengthy and, consequently, are not an efficacious forum for resolving the industrial disputes speedily. The power of the industrial courts also is wide and such forums are empowered to grant adequate relief as they are just and appropriate. It is in the interest of the workmen that their disputes, including the dispute of illegal termination, are adjudicated upon by an industrial forum.”

Conclusion

The findings from the project thereby suggest “Section 9 of the Civil Procedure Code”concerns the jurisdiction of a civil court to entertain a cause. The section enumerates, subject to the provisions of Section 10, 11, 12, 1347, 66, 83, 84, 91, 9(115)civil courts have an “inherent” jurisdiction to entertain any suit unless its cognizance is expressly or impliedly barred by requisite implications in the respective statute. The civil court is entitled to decide on a suit concerning its jurisdiction, however, in consequence, it may turn out the court does not have any jurisdiction over the matter. Civil courts have the jurisdiction to decide on whether tribunal, quasi-judicial bodies, or statutory authorities operate within its jurisdiction. Once it has been established that such authority e.g. certificate officer has initial jurisdiction, any erroneous order by him in such circumstance would not be prone to any collateral attack concerning the suit. This is because of an essential or palpable difference between cases wherein the courts lack jurisdiction to adjudicate cases and wherein the court exercises the jurisdiction irregularly. However, the Apex Court is yet to clarify the situation with the case concerning the jurisdiction of a civil court wherein its jurisdiction is partly barred, impliedly, expressly, or where it is not.

References

A.N Saha’s, The Code of Civil Procedure (first published 1^stJanuary 2019, Premier Publishing Company)
“PMA Metropolitan V. M.M Marthoma[1995] 4 SCC 226 (318-19)”
Shankar Narayanan v. K. Sreedevi(1959) 58 (P&H).
Bharat Aluminum Co. v. Kaiser Aluminum Technical services Inc. 2012 (9) SCC 552
Ganga Bai v. Vijai Kumar, AIR 1974 SC 1126.
State v. Mask and Co. [1940] 105; 67 IA 222 (PC).
State of A.P. v. Manjeti LaxmiKanth Rao[2000] 2220 SCC (SC).
Rachit Sharma, ‘Dhulabhai v. State of Madhya Pradesh’ (Racolblegal, April 27^th2017) < https://racolblegal.com/dhulabhai-vs-state-of-madhya-pradesh-air-1969-sc-78-1968-scr-3-662/> accessed 8 November 2020.

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

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

https://t.me/lawyerscommunity

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

Section 452 IPC : overview, essentials, punishment and case laws

By

Rachit Garg

-

February 21, 2022

0

This article is written by Kanisha Goswami, a law student from Indraprastha University. This article explains Section 452 of IPC which deals with trespass to a house followed by preparation of assault, hurt or wrongful restraint.

Introduction

Trespass in layman terms means to enter into someone’s land without his consent. Whenever trespass is done with the criminal mind, it amounts to criminal trespass and is regarded as a punishable offence under the Indian Penal Code. If any act which disturbs the right of a person to enjoy his/her private property is a house-trespass. Section 452 talks about trespass with the intention to hurt, assault or restrain someone is an aggravated form of house-trespass as trespassing into the property where a person resides and stores his valuables is illegal. Therefore, it is obvious that before a person is held to be guilty of an offence punishable under this section, it must be proved that in that alleged trespass, all the elements mentioned in section 452 were present.

Section 452 IPC

Section 452 of the IPC, deals with trespass to house with the motive to hurt someone or assault any person or restrain someone wrongfully, or to put someone in fear of hurt or of assault or wrongful restraint. Here, the trespasser is punishable with a minimum sentence of 7 years and with a fine. It is a cognizable, bailable offence and triable by any magistrate. This section provides higher punishment where trespassing to a house causes harm, assault, or restraint on someone.

When trespass is committed with a criminal mind, it results in criminal trespass which is punishable under IPC. If any person’s privacy or enjoyment of property, whether it’s movable or immovable, is retrenched due to criminal activities of another person, then IPC provides a remedy for such infringement of rights.

Ingredients of Section 452 IPC

Entering the estate of another person

The entry here means that the person enters someone’s property with evil intentions. Entry doesn’t need to be made by force, it has to be unauthorised or against the will of the owner of that land.

In Savitaben vs The State Of Gujarat (2019), at about 2:30 PM complainant’s wife, Narmadaben was at her house scolding her son, and the accused, Savitaben misunderstood that which resulted in a verbal argument between them. Savitaben’s husband took a stick and chased after Narmadaben to beat her. Narmadaben went inside the room and locked the door of the house. Accused and her husband broke the door and made her lie down on the berth and Savitaben brought the jar of kerosene and gave it to her husband and he set the deceased(Narmadaben) on fire. Both of them ran away. Court held that both accused 1 and accused 2 are punishable under Section 302 and Section 452 read with Section 114 of IPC.

Property must be owned by another person

The property must be owned by another person and not by the trespasser himself. The main function of this section is to protect the interest of the owners. If the entry made by the trespasser is clear to harm or assault another person then that person is liable under this section.

In Main Pal vs State Of Haryana (2010), the complainant stated that while she and her daughter-in-law were sleeping in her house, around 11:30 PM, the appellant jumped over the wall of her house and broke all the bulbs, and ran away. There were no male members at home at that time and after one hour the appellant came again to her house and touched her daughter-in-law. The Court charged him with the offence of house-trespass with the mala fide intention to assault her daughter-in-law.

Intention to cause hurt, assault, and wrongful restraint

The intention of the accused is essential to convict the suspect under this section. Accused must commit an offence with an intention to harm, assault, or restrain any person to take possession of such property. Intention can be proved by circumstantial evidence.

Example:

When someone went into the house of any person with a fictitious warrant to arrest and took that person away without his will. Here, the culprit is punishable under this Section.

Trespass

Trespass is a legal term that means unauthorised entry onto the owner’s land without his permission or an unwarranted invasion. Trespass is mentioned in both criminal law and tort law. It is an intentional interference with one’s person or property. The word ‘intention’ here means committing the wrong by choice. Intention is an essential element as ‘mens rea’ is the main reason for an act to be criminal. Trespass to a house is an exacerbated form of criminal trespass. Thus, If any person who is permitted to sit in a drawing room enters the bedroom without any reason, that entry will be a trespass.

To throw garbage upon one’s premises is also a wrong of trespass that means trespass is not only about physical interference but could be committed by throwing some material object on another person’s land. It can be said that the person has an ulterior or mala fide motive to harass another person.

Wrongful restraint

Section 339 of the Indian Penal Code states that any person who voluntarily blocks another person from moving in any direction in which that person has a right to move freely, or obstructs that person by making the path impossible, dangerous, or difficult to cross, is meant to unlawfully restrain that person. The motive of this section is to protect the freedom of a person. The complainant must prove that there was an obstruction that prevented him from proceeding in any direction. To invoke this section, the complainant needs to prove his right over the land. Whoever obstructs any person shall be punished with imprisonment which may extend to one month, or fine up to five hundred rupees, or with both.

If obstruction happens in good faith and the accused who is obstructing someone is having a lawful right to obstruct that person, this will not amount to wrongful restraint. This offence is cognizable, bailable, and triable by any magistrate. This is a compoundable offence.

In Madala Peraiah And Ors. v Voruganti Chendriah (1954), the facts were that the complainant purchased land nearby and whenever he went there he had to pass through the planned path(Donka). The planned path passes through the land of the accused. There has been conflict between both of them. One day, when he was crossing the Donka, the accused stopped him from using the water and he obstructed him from going to his land by blocking the path for his bull, he beat them, and drove them away. The Court held that the accused committed the offence of wrongful restraint.

Wrongful confinement

Section 340 of the Indian Penal Code defines wrongful confinement as when any person unlawfully restrains another person in such a manner to prevent that person from moving beyond certain circumscribing limits. Wrongful confinement is a kind of wrongful restraint as in both of the offences a person kept within the limits out of which he has a right to go or he wishes to go. There must be a total restraint not, partial restraint of a person. Example: Locking up a person in a room amounts to wrongful confinement.

In State v. Balakrishan And Others(1992), the accused who was a police officer arrested the complainant’s relative. The complainant reached the police station and asked the officer what offence had been committed by his relative. The accused commanded the complainant to stand in the corner for the whole night. He was not allowed to move and seek legal remedies. Here, the accused committed the offence of wrongful confinement as he prevented the complainant from moving from that place.

Punishment under Section 340

Whoever confines any person unlawfully shall be punished with imprisonment which may extend to one year, or with fine up to one thousand rupees, or with both. The offence under this Section is cognizable, bailable, and triable by any magistrate. It is a compoundable offence.

Other ways of house-trespass

Section 442 IPC

Section 442 of Indian Penal Code defines house-trespass as criminal trespass when any person enters or remains in any building, tent, or vessel which is used as a house dwelling, or any building which is used as a place of worship, or as a place for the custody of estate, is said to commit house trespass. No person can be convicted of this offence if he enters into the property of another person by leave or licence.

Section 443 IPC

Section 443 of IPC defines lurking house-trespass. Any person who commits house-trespass while taking precautions to conceal such trespass from another person who has the authority to eject or exclude the trespasser from the tent, building, or vessel, is said to commit lurking house-trespass. This is an aggravated form of house-trespass.

Section 444

Section 444 of IPC talks about lurking house-trespass committed at night. When any person commits lurking trespass after sunset and before sunrise, it amounts to lurking house-trespass. This offence is punishable under Section 456 of IPC, with imprisonment not more than three years and with a fine.

Section 445 IPC

Section 445 defines the offence of housebreaking which is an aggravated form of lurking house-trespass. This section lays down different ways in which house-breaking can happen:

If someone enters through a passage which was made by him;
If any passage not used by anyone other than the trespasser;
By the opening of any passage for committing a crime of housebreaking which was not intended by the owner of the house to be open;
By opening any lock;
Use of criminal force either at the time of entry or at the time of departure.

Section 446 IPC

Section 446 defines the offence of housebreaking by night which is committed after sunset and before sunrise, this is an aggravated form of housebreaking. This offence is punishable under Section 456 of the Indian Penal Code with imprisonment which may extend to three years and with a fine.

Punishment under Section 452 IPC

When any person commits house-trespass with the intention of causing hurt to another person or assaulting another person or unlawfully restraining any person shall be liable to imprisonment which may extend to seven years, and shall also be punished with a fine. This offence is cognizable, non-bailable, and triable by any magistrate. This offence is not listed under compoundable offences.

Case laws

In Tulshiram Bhanudas Kambale v. State of Maharashtra(2007), some persons were watching a movie inside the house of the deceased person. After some time they sat on the lawn. Later, the accused came along with some people and they were armed with swords and weapons. The Court observed that the appellants had come with deadly weapons and arms to the house of the complainant with the mala fide intention and common object to kill the complainant. They have committed the offence of house-trespass intending to kill the complainant party and the deceased(owner of the house) passed away on the spot as he had incised wounds, many of them on the head and other parts of the body.

In Achhar Singh v. The State Of Himachal Pradesh (2021), the complainant and her mother attended the wedding in a nearby village. Both the ladies returned home. The accused and other villagers with the intention to kill them started pelting stones at them. The complainant and her mother rushed back to the house. However, the accused broke the door and entered the house with weapons. The complainant’s mother died on the spot and the complainant was beaten with sticks. Somehow, the complainant managed to leave the house and went to the police station. In this case, the accused and other villagers committed the offence under Section 452.

In Udham Singh v. The State Of Madhya Pradesh(2019), the complainant’s father and his brother, who were residents of Jamniya village, went to water their land at 5 o’clock. There was a dispute between the deceased and accused over land. Thereafter, the accused and his family he called, beat him with the lathi. Kashiram(deceased’s son) who was also the eye-witness, filed a case against the accused. The Court held that there was a quarrel between the parties and at that time an incident had happened, the deceased died due to injuries caused to him and stated that the accused and his family members are liable under this Section.

Conclusion

If someone, either stranger or known, enters into the property which is in your possession with an intent to cause harm or assault, then such person would be liable under the offence of house-trespass and remedy can be sought in any court. House-trespass is an aggravated form of criminal trespass and lurking house-trespass and housebreaking are more aggravated forms of house-trespass. House-trespass is something that hinders the privacy of another person which he/she has a right to enjoy. Privacy is a fundamental right of a citizen that no one has the right to hinder.Thus, it is very essential to know the difference between the situations where an offence amounts to house trespass or where it may not. Through this path only people will be able to exercise their rights and duties.

References

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

https://t.me/lawyerscommunity

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

All about the Marrakesh Agreement

By

Rachit Garg

-

February 21, 2022

0

The article is written by Ansruta Debnath, a law student of National Law University Odisha. This article talks about the Marrakesh Agreement which was responsible for establishment of the World Trade Organisation.

Introduction

On April 15, 1994, in Marrakesh, Morocco, after the Uruguay Round of Multilateral Trade Negotiations, the World Trade Organization Agreement also known as the Marrakesh Agreement was signed.

The scope, functions, and agency of the World Trade Organization are all outlined in this agreement. The annexes to the Marrakesh Agreement include agreements negotiated previously under the General Agreement on Tariffs and Trade, as well as accords reached during the Uruguay Round. These agreements have now been reclassified as World Trade Organization (WTO) agreements. The Marrakesh Agreement binds all members of the World Trade Organization, even those who joined after it was signed.

Historical background of the Marrakesh Agreement

General Agreement on Tariffs and Trade, hereinafter referred to as GATT 1947, was an agreement signed between 23 nations in 1947 in Geneva. It came into force on January 1st, 1948 and was primarily brought about to phase out imports of the import quota and reduce tariffs on merchandise trade.

GATT 1947 was the trade agreement that governed international trade from 1948 until a proper international organization for trade got established (World Trade Organization, 1995). Despite its many problems which ranged from the non-inclusivity of various nations to other institutional problems, GATT 1947 was able to conduct eight rounds of multilateral trade negotiations, the last one being the Uruguay Round (1986-1994) that led to the Marrakesh Agreement which in turn established the World Trade Organization.

The Marrakesh Agreement created a new General Agreement on Trade and Tariffs (present in Annexe 1A of the Agreement) which is referred to as GATT 1994.

Need for the Marrakesh Agreement

GATT 1947 was an agreement between certain countries but was not a binding treaty. Thus, its provisions applied to the extent of them being consistent with the country’s laws. The GATT was also signed between 23 nations and clearly, that implied that it was not inclusive at all. As more and more nations started participating in trade talks being organised through GATT, it was understood that GATT would serve better if it had an institutional organization to back it up better. Hence, during the Uruguay Rounds, the Marrakesh Agreement was signed that led to the establishment of an institutional organization, the WTO.

Discussion of the articles of the Marrakesh Agreement

The primary objectives of the Marrakesh Agreement can be understood by the first part of the agreement, which can be considered to fulfil the objectives of a standard preamble. It says that parties to the Agreement-

Recognized that their trade and economic relations should be conducted to raise living standards, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, all while allowing for the most efficient use of the world’s resources per the goal of sustainable development.
Recognized further that there is a need for positive action for the development of the developing and least-developed nation, such that even they can secure their share in the international market that will aid their home economy.
Were desirous of contributing to the above-mentioned goals by engaging in reciprocal and mutually beneficial agreements aimed at significantly lowering tariffs and other trade obstacles, as well as eliminating discriminatory treatment in international commercial relations.
Resolved to build an interconnected, economically sustainable, and long-lasting world trade system that incorporates the GATT 1947, previous trade liberalisation efforts, and all of the outcomes of the Uruguay Round Multilateral Trade Negotiations.
Were determined to preserve the basic principles and to further the objectives underlying this multilateral trading system

Article I: Establishment of the World Trade Organization

This article establishes the World Trade Organization (hereinafter referred to as WTO)

Article II: Scope

The World Trade Organization (WTO) was established to provide institutional frameworks for the conduct of trade interactions. Furthermore, the agreements in Annexes 1, 2, and 3 are “Multilateral Trade Agreements” and are binding on all current and future members of the WTO, while those in Annexe 4 are “Plurilateral Trade Agreements” and are only binding on members if they agree for them to be binding on their capacity.

Article III: Functions

This article talks about the functions of the WTO. The functions are as follows-

The WTO is responsible for supporting and taking every step to ensure the implementation, administration, and operation of the Marrakesh Agreement and Multilateral Trade Agreements, as well as provide the framework for the implementation, administration, and operation of Plurilateral Trade Agreements, to achieve their objectives.
It provides a forum for negotiation about trade issues under the various Multilateral Agreements as well as other further negotiations to all its members.
WTO is also a dispute resolution body among its members
The WTO is also responsible for administering the Trade Policy Review Mechanism (TPRM). This is the main transparency instrument of the WTO, affording opportunities for a process of a collective evaluation of the trade policies and practices of individual members.
Finally, The WTO was tasked to work with the International Monetary Fund, the International Bank for Reconstruction and Development, and its affiliated organizations to achieve more coherence in global economic policymaking.

Article IV: Structure

The Ministerial Conference is the WTO’s highest decision-making body, bringing together all of the organization’s members. It meets every two years and has the authority to make decisions under any multilateral trade agreement.

Because the Conference only meets every two years, the General Council is in charge of the WTO’s day-to-day operations and any other interim concerns. It is made up of representatives from all WTO member countries. When appropriate, the General Council meets as the Trade Policy Review Body and the Dispute Settlement Body. Three bodies are functioning directly under the General Council-

The Council for Trade in Goods (Goods Council), which deals with the trade agreements under Annexe 1A
The Council for Trade in Services (Services Council), deals with the General Agreement on Trade in Services (GATS) which is present in Annexe 1B
The Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS Council), deals with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) present in Annexe 1C.

The Ministerial Conference also established a Committee on Trade and Development, a Committee on Balance-of-Payments Restrictions, and a Committee on Budget, Finance, and Administration, each of which is responsible for carrying out the functions delegated to them by the Marrakesh Agreement and Multilateral Trade Agreements, as well as any additional functions delegated by the General Council.

Article V: Relations with Other Organizations

The General Council was tasked with putting in place suitable structures for effective cooperation with other intergovernmental organisations that have WTO-like requirements. The General Council was also given the authority to devise appropriate mechanisms for communication and cooperation with non-governmental organisations working on WTO problems.

Article VI: The Secretariat

The World Trade Organization’s Secretariat, which is now based in Geneva, is led by a Director-General who is appointed by the Ministerial Conference. Its tasks are stated as “exclusively international in character” in the Marrakesh Agreement, which means they report to and are accountable to only the WTO as a whole, and not to any individual country or member.

Article VII: Budget and Contributions

The Secretariat compiles and delivers to the Committee on Budget, Finance, and Administration the WTO’s annual budget estimate and financial statement. The General Council evaluates it and makes recommendations to the Committee on Budget, Finance, and Administration, which makes the final decision. With a two-thirds majority, the General Council approves the budget, and members are responsible for contributing their share of expenses as per the General Council’s financial norms.

Article VIII: Status of the WTO

The World Trade Organization (WTO) is a legal entity that, along with its members, enjoys several immunities and privileges that are necessary for it to carry out its activities and functions properly. This article further states that the privileges and immunities granted should be identical to those established in the Convention on the Privileges and Immunities of Specialized Agencies, which was passed by the United Nations General Assembly on November 21, 1947.

Article IX: Decision-making

All of the choices are made by consensus. When there is no consensus, decisions are made by a majority of the votes cast. Both the Ministerial Conference and the General Council follow this procedure. Each WTO member gets a single vote. In addition, the Ministerial Conference and General Council have sole authority to interpret this Agreement and the Multilateral Trade Agreements. They can utilise their authority to interpret a Multilateral Trade Agreement in Annexe 1 based on a recommendation by the Council monitoring the Agreement’s functioning. A three-fourths majority vote of the Members is required to accept an interpretation.

Article X: Amendments

This article talks about the various ways and procedures through which amendment to the Marrakesh Agreement and the other agreements of the annexures can take place.

Article XI: Original Membership

This article talks about all those who would be original members of the WTO. The contracting parties to GATT 1947, the European Communities which accept the Marrakesh and all the other agreements were considered to be the original members.

Article XII: Accession

The Marrakesh Agreement and the addition of new members to the WTO are discussed in this article. Any State or separate customs territory having total autonomy over its external commercial relations and other areas covered by this Agreement and the Multilateral Trade Agreements may accede to this Agreement on terms agreed upon by it and the WTO. Such membership will have an impact on this Agreement as well as the Multilateral Trade Agreements that are linked to it. Decisions on accession are made by the Ministerial Conference. At the Ministerial Conference, a two-thirds majority of WTO members must ratify the conditions of entry agreement.

Article XIII: Non-Application of Multilateral Trade Agreements between Particular Members

While the Marrakesh Agreement and other Multilateral Agreements apply to all the original members, it is important to note that they do not apply to the members who accede to it under Article XII if they do not consent to it before the accession takes place and the same is notified to the Ministerial Conference.

Article XIV: Acceptance, Entry into Force and Deposit

This article talks about the formal procedures to be undertaken on accession to the Marrakesh Agreement and the other ancillary agreements.

Article XV: Withdrawal

All members are allowed to withdraw from the Marrakesh Agreement and the other Multilateral Trade Agreements. The withdrawal takes effect after six months from when the notice of withdrawal is given to the Director-General of the WTO.

Other agreements within the Marrakesh Agreement

Annexe 1

ANNEX 1A: Multilateral Agreements on Trade in Goods

ANNEX 1B: General Agreement on Trade in Services and Annexes
ANNEX 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights

Annexe 2

This annexe contains “Understanding on Rules and Procedures Governing the Settlement of Disputes”.

Annexe 3

This annexe contains the “Trade Policy Review Mechanism”.

Annexe 4

This annexe contains all the Plurilateral Trade Agreements. They are as follows:

Implications of the Marrakesh Agreement

The Marrakesh Agreement established the first-ever international trade organization. This led to a much more structured approach to international trade leading to the increased inclusivity of various countries in the era of globalization. The creation of the World Trade Organization led to a rapid expansion of international trade, accelerating the individual growth of member and non-member countries.

WTO is a champion of free trade. While this has allowed for the growth of various multinational corporations and easy access to cheap goods throughout the world, it has negatively impacted the home-grown economies of various third-world countries. Through its campaign on free trade, many critics say that WTO has side-lined the needs of these countries because of lack of trade protection. Another WTO principle is the “most favoured nation” principle. This postulates that countries must trade without discrimination. While this has been beneficial in certain circumstances, in most cases, developing countries are prevented from favouring their own companies which might have helped in accelerating development. WTO also does not take adequate consideration of environmental concerns which is extremely concerning.

Conclusion

The Marrakesh Agreement was thus responsible for bridging the gap between the developed and developing nations by establishing the World Trade Organization. The WTO is one the most important international organizations in the world today and is responsible for regulating trade between almost 164 entities. The organization assumes more importance especially due to the creation of a globalized economy.

References

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

https://t.me/lawyerscommunity

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

All about 25 parts of the Indian Constitution

By

Shoronya Banerjee

-

February 21, 2022

0

This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of the 25 parts of the Indian Constitution, their subject matter, and provisions.

This article has been published by Shoronya Banerjee.

Table of Contents

Introduction

Originally, the Indian Constitution had 395 Articles, 22 Parts, and 8 Schedules. Later 3 parts, namely, 9A Municipalities, 9B Co-operative societies, and 14A tribunals, were added to it as amendments, making the tally 25. Presently, the Indian Constitution is made up of 448 Articles, 25 Parts, and 12 Schedules. Schedules consist of additional details that are absent in a particular Article or Part. It is to be remembered that whenever a new Article or a Part is introduced in the Indian Constitution, the same is carried out alphabetically (for example Article 21 A) so that the arrangement of the Constitution is not affected. The present article provides a detailed analysis of the 25 Parts of the Indian Constitution.

25 Parts of the Indian Constitution

Part I : the Union and its territory (Articles 1 to 4)

The Constitution refers to India as a Union of States, meaning that its unity is unbreakable. No part of the Indian Union may secede. The country is divided into many parts known as states or union territories and the Constitution lays down not only the structure of the Union Government but also the structure of the state government. India is a sovereign, secular, democratic republic governed by a Parliamentary system of government. The President is the Union’s constitutional executive leader. The Governor, as the President’s representative, is in charge of the executive branch in the states. State governments are quite similar to the federal government. The nation is divided into 28 states and 8 union territories (UT) as of 2021. The President appoints an administrator to oversee the UT. Each Indian state/UT has its own demographics, history, culture, attire, festivals, language, and so on. Part I of the Indian Constitution consists of the following articles:

Article 1: Name and territory of the Union.
Article 2: Admission or establishment of new States.
Article 3: Formation of new States and alteration of areas, boundaries, or names of existing States.
Article 4: Laws made under Articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental, and consequential matters.

Part II : Citizenship (Articles 5 to 11)

Citizenship under Part II of the Indian Constitution is covered by Articles 5 to 11. Articles 5 to 8 describe who was eligible for Indian citizenship at the time of commencement of the Constitution, whereas Articles 9 to 11 describe how citizenship is acquired and lost.

Person domiciled in India

The idea of residence is not consistent throughout the world, as the Supreme Court noted in Satya v. Teja Singh (1975). However, two things must be proven in order to establish a domicile:

A specific type of residence,
A certain type of intention.

Factum and animus are both necessary. A long stay does not definitely establish a domicile, while a short stay does not necessarily negate it.

Article 5 of the Indian Constitution states that any person who had his/her domicile in Indian territory at the time of the Constitution’s adoption and met one of the following three criteria would be a citizen of India:

Who was also born in the territory of India, or
Either of whose parents were born in the territory of India, or
Who had been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement.

The Supreme Court declared in D.P. Joshi v. Madhya Bharat State (1955) that citizenship and domicile are two distinct notions. Citizenship refers to a person’s political standing, whereas domicile refers to their civil rights. The Indian Constitution establishes single citizenship, that is, Indian citizenship. A state cannot have citizenship, although it can have a domicile.

Persons migrated from and to Pakistan

Articles 6 and 7 of the Indian Constitution deals with the Rights of Citizenship of certain persons who have migrated to India from Pakistan and the Rights of Citizenship of certain migrants to Pakistan respectively.

The Supreme Court concluded in Shanno Devi v. Mangal Sain (1961) that the phrase “migration” in Articles 6 and 7 meant traveling to a nation with the aim of residing there permanently. However, in Kulathil Mammu v. State of Kerala (1996), this viewpoint was rejected. In this case, the Supreme Court ruled by a majority that the term ‘migrated’ in Article 6 or 7 is used in a broader sense of moving from one place to another, whether permanently or temporarily, but that the move should be voluntary and not for a specific purpose or for a short or limited period of time.

Persons of Indian origin residing in foreign countries

Article 8 of the Indian Constitution provides that nationals (whose parents or any grandparents were born in India as defined in the Government of India Act, 1935) residing abroad are granted Indian citizenship as if they had been registered by India’s diplomatic or consular representatives in the country where they are residing.

Acquisition and termination of citizenship under the Citizenship Act

Citizenship is closely linked to the Citizenship Act, which was approved by the Indian Parliament in 1955, in addition to the aforementioned articles of the Indian Constitution. The Citizenship Act of 1955 governs India’s citizenship following the establishment of the Constitution. It’s a piece of legislation that governs the acquisition and termination of Indian citizenship as well. The legislation related to this matter is the Citizenship Act 1955 which has been amended by the Citizenship (Amendment) Act 1986, the Citizenship (Amendment) Act 1992, the Citizenship (Amendment) Act 2003, the Citizenship (Amendment) Act 2005, and the Citizenship (Amendment ) Act, 2019. The President of India is termed as the first citizen of India.

Part III : Fundamental Rights (Articles 12 to 35)

Part III of the Indian Constitution (Articles 12 to 35) guarantees a number of Fundamental Rights and remedies in the event that they are violated. The primary rationale behind including these rights in a democratic constitution is that individuals sometimes require protection against collective action by others who may not completely understand their position and demands. Fundamental Rights under the Indian Constitution have been largely drawn from and influenced by the provisions in the US Bill of Rights. Fundamental Rights guaranteed in Articles 14 to 35 have been categorised into six groups, namely,

Right to Equality (Articles 14 to 18).
Right to Freedom (Articles 19 to 22).
Right against Exploitation (Articles 23-24).
Right of Freedom of Religion (Articles 25 to 28).
Cultural and Educational Rights (Articles 29-30).
Right to Constitutional Remedies (Articles 32 to 35).

Article 12 of the Indian Constitution provides the definition of ‘State’ which includes the Parliament and state legislatures, Government of India and state governments, and all local and other authorities within the territory of India or under the control of the Government of India

Article 13 of the Indian Constitution provides laws that are inconsistent with or in derogation to the fundamental rights thereby expressly incorporating the principle of judicial review. Articles 13 (1) and (2) render existing and future legislations unenforceable to the degree that they conflict with the fundamental rights guaranteed by Part III of the Indian Constitution. While clause (1) deals with pre-constitutional laws, clause (2) covers post-constitutional laws.

Right to Equality (Articles 14 to 18)

The right to equality is addressed in Articles 14 to 18. Article 14 addresses the right to equality and equal protection under the law in general, but Articles 15, 16, 17, and 18 guarantee equality in specific areas. As envisioned in the Preamble of the Constitution, the right to equality is the most crucial right for a democratic, socialist, and secular republic nation like India. Without this basic guarantee to individual members of society, democracy will fail to function properly.

Article 14

Individuals are guaranteed the right to equality under Article 14 of the Indian Constitution. The article confers rights on all persons within the territory of India. The benefit of the Article is not limited to citizens as under Article 19. The word ‘person’ includes not only natural persons but also legal or juristic persons. As a result, Article 14 guarantees the right of equality to all firms, registered organisations, statutory corporations, and other legal entities.

Articles 15 to 18

Article 15 of the Indian Constitution deals with the prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth. The legitimacy of an act under Article 15 is to be determined by the mode of operation and effect on fundamental rights and not by the purpose or goal of the act. The act is unlawful if the impact of its operation is to discriminate against citizens on any of the grounds specified in the article.

Article 16 guarantees equality of opportunity in state-sponsored employment. This right is only conferred on the citizens of India. It is also impossible to treat everyone equally in the workplace. Equal treatment for equals is the sole definition of equality. Article 16 does not prevent the reasonable classification of employees and unequal treatment based on such categorisation. Before an action is determined to have violated Article 16, there must be a clear showing of discrimination between one government official and another in a similar position, which cannot be sensibly explained, save on the assumption or demonstration of malice in law or malice in fact. The Supreme Court of India had opined the same in the 1976 case of Regional Manager v. Pawan Kumar.

Article 17 deals with our country’s specific problem of untouchability. There are two parts to this article. The first portion proclaims that ‘untouchability’ is outlawed and that any form of it is prohibited. Article 17 denies legal recognition of any right or disability based on the ‘untouchability’ practice. The second portion, which has a positive element, stipulates that anybody who imposes any disability resulting from ‘untouchability’ would be punished. The punishment will be determined by the law.

All titles are abolished under Article 18(1) of the Indian Constitution. It makes it illegal for the government to bestow titles on anybody, whether a citizen or a non-citizen. The restriction does not apply to military or academic distinctions. As a result, a university might bestow a title or honour on a deserving individual. Clause (2) makes it illegal for an Indian citizen to accept any title from a foreign state. Clause (3) bans a person who is not a citizen of India but holds a profit or trust post in the government from taking a title from a foreign state without the President’s permission. Clause (4) states that no individual, citizen or non-citizen, holding a profit or trust post may take any present, emolument, or office of any sort from or under any foreign State without the President’s assent. Clauses (3) and (4) were inserted to guarantee that a non-citizen remains loyal to the State and does not violate the confidence placed on them. The Supreme Court confirmed the legitimacy of civilian decorations in Balaji Raghavan v. UOI (1995) but chastised the government for not exercising prudence in granting them. It was decided that national prizes were not intended to be utilised as titles and that individuals who had done so should forfeit their honour.

Right to Freedom (Articles 19 to 22)

Clause 1 of Article 19 guarantees some valued liberties that are necessary for an individual’s dignity and the functioning of a democratic society. The exercise of these rights is constrained by Clauses (2) to (6) of the same Article. Citizens are the only ones who may claim rights under Article 19 (1). Article 19 guarantees some freedoms which are not absolute, as is the case of the American Constitution. The State’s ability to restrict fundamental liberties has not been left to be inferred from the notion of ‘police authority,’ and the usage of the ambiguous term of ‘due process’ has been avoided on design. The rights are provided hereunder:

Right to freedom of speech and expression (Clause 19(1)(a)).
Right to assemble peacefully and without arms (Clause 19(1)(b)).
Right to form associations or unions or cooperative societies (Clause 19(1)(c)).
Right to move freely throughout the territory of India (Clause 19(1)(d)).
Right to reside and settle in any part of the territory of India (Clause 19(1)(e)).
Right to practice any profession or to carry on any occupation, trade, or business (Clause 19(1)(g)).

Article 20 guarantees three separate rights to an accused individual, whether citizen or non-citizen, in three clauses. Clause (1) protects rights against ex post facto legislation, Clause (2) prevents double jeopardy, and Clause (3) bans self-incrimination.

The right to life and personal liberty is guaranteed by Article 21 of the Indian Constitution. It is available to both the citizens as well as non-citizens of India. The Supreme Court declared in Francis Coralie v. Union Territory of Delhi (1981) that Article 21’s right to life cannot be limited to animal existence. It entails a lot more than simply physical survival. In Kharak Singh v. State of Uttar Pradesh (1963), it was determined that the phrase “personal liberty” in Article 21 refers to all of the rights that make up a person’s personal freedoms, not only those listed in Article 19(1).

Article 22 deals with the right to arrest and detention. The protection is available to all citizens and non-citizens alike, however, enemy aliens and those in preventive custody will not be protected by Clauses (1) and (2). Article 22’s provisions can be separated into two groups. Clauses 1 to 3 deal with general arrests, whereas clauses 4 to 7 solely deal with preventative detention.

Right against Exploitation (Articles 23 and 24)

Articles 23 and 24 provide the right to be free of exploitation. The feudalistic social framework has divided society into two factions, one for the privileged and wealthy, and the other for the oppressed working class with little or no property. The former class’s exploitation of the latter took on such proportions that, in order to exploit the latter class for their own gain, the former class treated them as if they were animals or saleable commodities. Article 23 prohibits human trafficking, beggary, and other similar forms of forced labour. Whereas, Article 24 prohibits child employment below the age of 14 years in mines, factories, or other hazardous work.

Right of Freedom of Religion (Articles 25 to 28)

A secular state is also envisioned in the Indian Constitution. Secularism was ruled to be a fundamental characteristic of the Indian Constitution in the case of S.R. Bommai v. Union of India (1994). As a result, Articles 25 to 28 provide religious freedom to all people, whether they are members of a minority or a majority group

Article 25 deals with religious activities (rituals) as well as religious beliefs (doctrines). Furthermore, these rights are applicable to all people, including citizens and non-citizens. These rights, however, are subject to public order, morality, health, and other fundamental rights.

Individual rights are protected by Article 25, whereas religious groups or divisions are protected under Article 26. In other words, Article 26 safeguards the right to freedom of religion for all people. No one shall be compelled to pay any taxes for the promotion or preservation of any specific religion or any group, according to Article 27. In other words, the government should not use public funds earned via taxes to promote or maintain any one religion.

Article 28 states that no religious teaching should be offered in any educational institution supported entirely by public funds. This rule, however, shall not apply to any educational institution controlled by the State but formed under any endowment or trust that requires the school to provide religious teaching.

Cultural and Educational Rights (Articles 29-30)

Articles 29 and 30 are meant to safeguard minorities by allowing them to preserve their own language, script, and culture while also preventing discrimination in educational institutions based solely on religion, ethnicity, caste, language, or any combination of these factors. The various provisions in the aforementioned articles have been listed hereunder:

Right of minorities to conserve language, script or culture (Article 29(1)).
Right of minorities to establish and administer educational institutions of their choice. (Article 30(1)).
Right to compensation in case of acquisition of property of minority institutions. (Article 30(1A)).
Right against discrimination in matters of granting aid to educational institutions. (Article 30(2)).
Right of citizens against discrimination in matters of admission to educational institutions. (Article 29(2)).

Right to Constitutional Remedies (Articles 32 to 35)

A right that isn’t accompanied by a remedy is only a formality. It is the remedy that brings a right to life. Article 32 of the Indian Constitution covers the right to constitutional remedy, which is termed as the ‘soul of the Constitution’ by the Chairman of the Drafting Committee, Dr. B.R. Ambedkar.

Article 33 permits Parliament to legislate the amount to which basic rights shall be reduced or changed in their application to members of the Armed Forces and certain other forces. Article 34 of the Constitution authorizes Parliament to compensate any individual serving in the Union or state, as well as any other person, for any act performed in connection with the maintenance or restoration of order in any territory where the martial rule was in effect. Article 35 grants Parliament the sole legislative authority over Articles 16 (3), 32 (3), 33, and 34. Furthermore, this article empowers the Parliament to impose penalties for violations of Fundamental Rights.

Part IV : Directive Principles of State Policy (Articles 36 to 51)

Article 36 to 51 of the Indian Constitution incorporates certain Directive Principles of State Policy (DPSP) which the State must keep in view while governing the nation, but by Article 37 these principles have been expressly made non-justiciable in a court of law. The reason for declaring these principles non-justiciable in court was because they could not be enforced through courts of law by their very nature, as the country’s economic resources may not be sufficient to satisfy them. For example, it may be admirable to guarantee the right to work, the right to education, or equal pay for equal work, but in order to accomplish these guarantees, sufficient economic resources and various social structures may be required, which may not be obtained instantly but rather over time. They have been rendered non-justiciable as a result of this discovery. The framers of the Indian Constitution were particularly influenced by the provisions of the Irish Constitution, 1937, and Lauterpacht’s International Bill of Rights in integrating Directive Principles in it.

The debated DPSP : Article 44

In topics like marriage, divorce, inheritance, and adoption, the Uniform Civil Code (UCC) argues for the creation of a single law for India that would apply to all religious sects. The law is based on Article 44 of the Constitution, which states that the state must work to ensure that citizens throughout India have access to a Uniform Civil Code. The goal of Article 44 of the Indian Constitution’s Directive Principles was to combat discrimination against vulnerable groups and to bring disparate cultural groupings together across the country.

The UCC attempts to safeguard disadvantaged groups, including women and religious minorities, as envisioned by Dr. B.R. Ambedkar, while simultaneously boosting nationalistic ardour via unity. The Code, once passed, would attempt to simplify laws that are now divided based on religious views, such as the Hindu Code Bill, Shariat legislation, and others. The Code will make the complicated regulations of marriage ceremonies, inheritance, succession, and adoptions are easier to understand and will be applicable to everyone. All citizens, regardless of their faith, shall be subject to the same civil law. For over a century, the subject has been at the forefront of political discourse and discussion, and it is a top priority for the Bharatiya Janata Party (BJP), which has been pressing for legislation in the Parliament.

Relation between Directive Principles and Fundamental Rights

In Kesavananda Bharati v. State of Kerala (1973), it was determined by the Supreme Court of India that Part IV’s guiding principles are the Constitution’s core feature and social conscience. Articles 14 and 16 are the methods to implement the policy to accomplish the purposes intended to be promoted by the Directive Principles. The relationship between Fundamental Rights and the DPSP is now cohesive in nature, and it is an important aspect of the Indian Constitution’s basic structure. Both are beneficial and complimentary to one another. The Directive Principles are, therefore, no longer just a moral duty for the government.

Part IVA : Fundamental Duties (Article 51A)

On the proposal of the Swaran Singh Committee, Part IV-A was introduced during the emergency by the Constitution (Forty-second Amendment) Act, 1976. The Amendment added a new Part IV-A to the Constitution, consisting solely of Article 51-A. There are 11 Fundamental Duties provided by the Indian Constitution.

People in a democratic society must understand that while they have certain rights, they also have obligations and duties to others and the nation. These duties have been included in order to instill a sense of responsibility in the people. There have been several occasions, both before and after the inclusion of these responsibilities, in which these rights have been flagrantly misused, including the burning of the national flag and the Constitution, as well as promoting secession. It was discovered that in a democratic setting, it is vital to educate the people in order to foster a sense of responsibility for the nation’s unity and integrity. A new basic responsibility has been included in clause(k) of Article 51 A, which addresses the right to education, by the Constitution’s Eighty-Sixth Amendment. This clause states that parents or guardians of children aged 6 to 14 who have been granted the right to free and compulsory education must offer educational opportunities for their children.

In Sachidanand Pandey v. State of West Bengal (1987), the Supreme Court stated that when the Court is asked to give effect to Directive Principles and Fundamental Duties, it cannot shrug and argue that priorities are a matter of policy and hence a subject to be considered by policymakers. The court may look into whether acceptable considerations have been taken into account and irrelevant factors have been eliminated. Inappropriate cases, it may go even further and provide crucial instructions.

Part V : The Union (Articles 52 to 151)

The Union can be discussed under three broadheads, which are provided hereunder.

The Union Executive (Articles 52-78)

The Indian Constitution establishes a parliamentary system of government with the head of the State being the President at the Union level and the governor at the state level. The principal executive functionaries of the Union are:

President,
Vice-President,
Council of Ministers,
Attorney General of India.

The executive powers of the Union extend to the following according to Article 73 of the Constitution:

To subjects over which Parliament has legislative authority,
To the exercise of any rights, power, or jurisdiction that the Government of India may exercise under any treaty or agreement.

The President under Article 52 of the Constitution, is not only the leader of the Central Government but also the guardian of state interests and keeps a check on state operations that may jeopardise the Central Government’s interests or the Indian Union’s unity and integrity. Through the Inter-State Council, he/she will also bring about collaboration between various states.

The Union Legislature (Articles 79-122)

The legislature at the federal level and in certain states is bicameral, with the head of the State as an integral part of it. The Upper House, which is similar to the English Upper House (the House of Lords) and the American Upper House (The Senate), is known as the Council of States. The Lower House is referred to as the House of the People. It is similar to the House of Commons in England and the House of Representatives in the United States. While Article 80 of the Constitution lays down that the Rajya Sabha will consist of not more than 238 representatives of the states and Union territories, Article 81 provides that the Lok Sabha should not have more than 530 members through direct elections and 20 members to represent union territories.

The Union Judiciary (Articles 124-147)

Articles 124 to 128 deal with the organisation of the union judiciary, namely the Supreme Court’s constitution, as well as the Supreme Court’s appointments, terms of service, and emoluments payable to its judges.

In SP Gupta v. Union of India (1982), the Supreme Court ruled unanimously that all constitutional functionaries participating in appointments are on the same footing when it comes to consultation while answering the question as to whether the opinion of the Chief Justice of India is binding or not. In Supreme Court Advocates on Record Association v. Union of India (1994), the Supreme Court overturned the decision, holding that the process of appointing judges to the Supreme Court and high courts is an integrated participatory consultative process for selecting the best and most suitable individuals. It should be emphasised that if the Chief Justice of India makes a suggestion without following the consultation procedure, the Government is not obligated to adopt it.

Article 141 of the Indian Constitution declares that any law which is declared by the Supreme Court of India shall be binding on all other courts within the Indian territory. The three kinds of jurisdiction vested on the Supreme Court are:

Original jurisdiction (Articles 32, 131).
Appellate jurisdiction (Articles 132-136).
Advisory jurisdiction (Article 143).

Part VI : The States (Articles 152 to 237)

The states can be discussed under three broadheads, which are provided hereunder.

The State Executive (Articles 153-167)

The executive power of the state is defined in Article 162. It states that, pursuant to the requirements of the Constitution, a State’s executive power extends to areas over which the State Legislature has legislative authority. The principal executive authorities of the State are:

The Governor,
Council of Ministers,
Advocate General.

Article 155 of the Indian Constitution lays down that governors of states are to be appointed by the President under his/her hand and seal.

The State Legislature (Articles 168-212)

Compensation for a state’s legislative assembly is provided for under Article 170. Clause (1) establishes the Assembly’s maximum and minimum membership. It states that the Legislative Assembly shall have no more than 500 members and no less than 60. Article 171 provides for the compensation of the Upper Chamber (Legislative Council) in states. Andhra Pradesh, Telangana, Bihar, Karnataka, Maharashtra, Uttar Pradesh, Jammu, and Kashmir are the seven states with two houses.

The State Judiciary (Articles 214-237)

Our Constitution designates the high courts (Articles 214-231) and the subordinate courts (Articles 233-237) as state judiciary. Each state is required to have a High Court, according to Article 214. High courts in India were founded in 1861 by the High Courts Act, 1861, and they had a reputation for independence and impartiality even before independence. High courts are also recognised as courts of record under Article 215 of the Constitution. Presently there are 25 high courts in India. Article 226 enables high courts to issue instructions, orders, or writs for the enforcement of fundamental rights or for any other purpose within their territorial jurisdiction, including writs in the form of Habeas Corpus, Mandamus, Prohibition, Quo Warranto, and Certiorari. The regulations pertaining to subordinate courts are included in Chapter VI of Part VI, which covers Articles 233 to 237.

Part VIII : The Union Territories (Articles 239 to 242)

Parliament has ultimate jurisdiction over matters pertaining to the governance of union territories. It can specify how they are to be governed, but until Parliament directs differently, the Union territories are to be administered by the President through an administrator he/she appoints. The Union Territories and the Centre have a unitary relationship. They are under the Centre’s direct management and administration. They don’t have any autonomy, and their administrative structure isn’t standard.

There are special provisions with respect to Delhi, as provided by the Indian Constitution. After Article 239-AA, two Articles, 239-AA and 239-AB, were added by the Constitution (Sixty-ninth Amendment) Act of 1991. The Union Territory of Delhi and the Administrator of Delhi were to be named as Lieutenant Governor, according to Article 239-AA.

Part IX : The Panchayats (Articles 243 to 243O)

The State shall take efforts to create village panchayats and invest them with such rights and authority as may be required to allow them to operate as units of self-government, according to Article 40 of the Constitution. The 73rd Amendment to the Constitution deals with panchayats, which are meant to strengthen local self-government at the village, town, and city levels while also allowing for rural-urban coordination. Article 243-E of the Constitution provides that every panchayat shall continue for a period of five years from the date appointed for its first meeting unless it is dissolved earlier.

Part IXA : The Municipalities (Articles 243P to 243 ZG)

The Constitution (Seventy-fourth Amendment) Act of 1992 establishes the structure, composition, powers, and functions of urban self-government entities. There are five types of urban bodies, namely,

Nagar Panchayats,
Municipal councils,
Municipal corporations,
Metropolitan areas,
Industrial township

Municipalities, whether Nagar Panchayats, Municipal Councils, or Municipal Corporations, must be formed in conformity with the requirements of Part IX A of the Constitution, which was included by the Seventy-fourth Amendment Act of 1992. Unless it is dissolved sooner by any law passed by the state legislature, every municipality must continue for 5 years from the date set for its first meeting. Before a municipality is dissolved, it must be given a reasonable opportunity to be heard. There are no clear measures in place for panchayats to take advantage of this opportunity.

Part IXB : Co-operative Societies (Articles 243H to 243 ZT)

Cooperative societies are an example of a self-help organisation. It is a vital tool for achieving the goal of social and economic justice as conceived in the Preamble to the Indian Constitution, as well as protecting people from capitalist exploitation. After Part IX-A, a new Part IX B including Articles 243 ZH to 243 ZT was incorporated in the Constitution by the Constitution (Ninety-Seventh Amendment) Act of 2011. The new section focuses on cooperative societies.

Part X : The Scheduled and Tribal Areas (Articles 244 to 244A)

Article 244 states that the Fifth Schedule applies to the administration and control of Scheduled Areas and Scheduled Tribes in all states except Assam, Meghalaya, Tripura, and Mizoram, and the Sixth Schedule applies to the administration and control of Tribal Areas in the aforementioned states.

The executive power of a state extends to Scheduled Areas within it, subject to the rules of the Vth Schedule, and the Governor of each state with Scheduled Areas is expected to submit an annual report to the President on the management of such areas. Certain Tribal Areas have been designated as autonomous Districts for better administration, for example, Khasi Hills District, Tripura Tribal Areas District. A District Council is established for each district, and a Regional Council is established for each autonomous area.

Part XI : Relations between the Union and the States (Articles 245 to 263)

The relation between the Union and the states can be understood under three broad heads which are provided hereunder.

Legislative relations (Article 245-255)

The territorial division of legislative powers between the Union and the states is addressed in Article 245 of the Constitution. The Union has the right to make laws for the entire or any part of India’s territory, while each state has the power to make laws for its own area. The current Constitution has embraced the Government of India Act, 1935’s distribution plan. Three lists appear in the Constitution’s Seventh Schedule. The List I contains 97 items over which the Union Parliament has sole authority. List II enumerates 66 items over which the states have exclusive power, whereas List III, the Concurrent List enumerates 47 items on which both the Union Parliament and the State Legislature can legislate.

Administrative relations (Article 256-263)

In a federal country, the Central Government and the states each have their own legislative and executive branches. According to Article 256, every State’s executive authority shall be used in such a way as to assure conformity with Parliament’s legislation and existing laws, and the Union’s executive power shall extend to the issuance of required orders for that purpose.

Financial relations (Articles 264-289)

Every sovereign government possesses the power of taxing. No tax must be levied or collected unless authorised by law, according to Article 265 of the Constitution. Because law here refers to legislation enacted by the legislature, the Article limits the executive power of the States of the Union. The Finance Commission’s constitution, functions, and powers are all outlined in Article 280. It states that the President shall, by order, establish a Finance Commission within two years after the Constitution’s inception, and thereafter at the end of every fifth year or sooner if he/she deems it essential.

Part XII : Finance, Property, Contracts, and Suits (Articles 264 to 300A)

Article 295 governs the succession of Indian states’ properties, assets, rights, liabilities, and duties. The executive power of the Union or states should be competent for the following functions, according to Article 298:

to engage in any type of commerce or business,
to purchase, hold, or sell the property,
to enter into contracts for any purpose.

The Union of India and states can sue or be sued as legal entities, according to Article 300.

Right to property (Article 300 A)

The Constitution (Forty-Fourth Amendment) Act of 1978 erased the right to property as a Fundamental Right, although it remains a human right in a welfare state and a constitutional right under Article 300 A of the Constitution. Article 300 A states that no one’s property may be taken away from them unless they have legal authorisation to do so.

Part XIII : Trade, Commerce and Intercourse within the Territory of India (Articles 301 to 307)

Articles 301 to 307 of Part XIII of the Indian Constitution provide freedom of trade, commerce, and intercourse. Article 301 establishes the broad principles of trade and commerce, whereas Articles 302 to 305 enumerate the trade prohibitions. These provisions have been inspired out of the Australian Constitution. Buying and selling products for profit is what trade entails. The term “trade” is defined in Article 301 as “an real, organised, and structured activity with a specific aim or objective.” While the transmission of movement through the air, water, telephone, telegraph, or any other media is referred to as commerce, the transfer of products from one location to another is referred to as intercourse.

Part XIV : Services under the Union and the States (Articles 308 to 323)

Articles 308 to 323 deal with matters relating to the Union’s and states’ services. Articles 308 to 313 deal with public servant recruitment, dismissal, service conditions, and constitutional protection, whereas Articles 315 to 323 deal with Public Service Commissions for the Union and states.

Part XIVA : Tribunals (Articles 323A and 323B )

A tribunal is a quasi-judicial body established to address issues such as settling administrative or tax-related disagreements. It has a variety of responsibilities, including adjudicating disputes, deciding rights between disputing parties, making administrative decisions, reviewing administrative decisions, and so forth. Tribunals were not included in the original Constitution but were added by the 42nd Amendment Act of 1976 to the Indian Constitution.

1. Administrative Tribunals are addressed under Article 323-A.

2. Other tribunals are dealt with in Article 323-B.

Part XV : Elections (Articles 324 to 329A)

Part XV (Articles 324 to 329) deals with election-related issues. The Election Commission has broad powers under Article 324 (1) of the Constitution, however, they cannot be utilised in contravention of the law or in violation of existing legislation.

Part XVI : Special provisions relating to certain classes (Articles 330 to 342)

Special provisions are included in Articles 330 to 342 to protect the interests of Scheduled Castes, Scheduled Tribes, Anglo-Indians, and Backward Classes. Articles 330 and 332, deal with the reservation of seats in the Lok Sabha and State Assemblies respectively. Scheduled Castes and Scheduled Tribes have seats reserved in the Lok Sabha under Article 330. The number of seats designated for such castes and tribes in any State or Union territory shall be determined by their total population. Similarly, Article 332 mandates that seats in the legislative assembly of all states be reserved for Scheduled Castes and Scheduled Tribes. Article 332 of the Constitution, which allows for the reservation of seats for “STs” in Arunachal Pradesh, Meghalaya, Mizoram, and Nagaland, was altered by the Constitution’s 58th Amendment Act of 1987.

Part XVII : Official Language (Articles 343 to 351)

Part XVII of the Indian Constitution (Articles 343 to 351) has detailed provisions concerning the official language of the Republic of India. Articles 343 and 344 of the Indian Constitution include the key regulations governing the Union’s official language. The official languages of India are specified in the 8th Schedule of the Constitution. The Constitution states that the President may, by order, permit the use of Hindi in addition to English and the Devanagari form of numbers in addition to the international form of Indian numerals for any of the Union’s official purposes for the specified term. India’s official languages are Hindi and English.

Part XVIII : Emergency Provisions (Articles 352 to 360)

In India, the Constitution’s emergency provisions allow the federal government to acquire the strength of a unitary government if the circumstances require it. According to the Indian Constitution, there are three types of emergencies:

National emergency,
State emergency,
Financial emergency.

The proclamation of emergency can be made on the following three general grounds:

War,
External aggression,
Armed rebellion.

Part XIX : Miscellaneous (Articles 361 to 367)

Part XIX of the Indian Constitution consists of provisions on the following aspects:

Protection of the President and governors.
Bar to interference by courts in disputes arising out of certain treaties, agreements, etc.
Abolition of recognition of rulers of Indian states and privy purses.
Special provisions as to major ports and aerodromes.
Effect of failure to comply with or to give effect to directions given by the Union.
Some definitions under Article 366.
Interpretation of the constitutional provisions.

Part XX : Amendment to the Constitution ( Article 368)

The framers of the Indian Constitution envisioned a procedure that is neither too stiff nor too flexible, for the purpose of amendments of the Constitution. Article 368 deals specifically with amendments, but there are other articles of the Constitution that allow for amendments through the regular legislative procedure. Thus, provisions of the Indian Constitution may be amended in the following ways:

By simple legislative process: Articles 4, 169, 239, 312, and the Fifth and Sixth Schedules grant Parliament the right to amend the Constitution by passing a law through the usual legislative procedure.
By special majority: The general procedure laid down in Article 368 is that a Bill for amendment of the Constitution may be introduced in either House of the Parliament, but it must be passed by a majority of total membership and a 2/3rd majority of members present and voting in each of the two Houses, and it must get the President’s consent.

Part XXI : Temporary, Transitional and Special Provisions (Articles 369 to 392)

Part XXI of the Indian Constitution is a collection of legislation relating to the country’s Constitution and the union of states that constitutes it. Articles on Temporary, Transitional, and Special Provisions make up this section of the Constitution. Articles 371 to 371-J of Part XXI’s purpose is to meet the aspirations of the people of backward regions of the states, to protect the cultural and economic interests of the tribal people of the states, to deal with the disturbed law and order situation in some parts of the states, and to protect the interests of the local people of the states.

Part XXII : Short title, commencement, authoritative text in Hindi and repeals (Articles 393 to 395)

Part XXII is a collection of legislation consisting of articles regarding the short title, date of commencement, authoritative text in Hindi, and repeals.

Conclusion

As we come to the end of this detailed article, it is evident to state that indeed India’s Constitution is a majestic piece that incorporates every minute aspect of the democratic nation.

References

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

https://t.me/lawyerscommunity

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