Section 6 of Trade Marks Act, 1999

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September 1, 2024

This article is written by Lavanya Gupta and covers Section 6 of the Trade Marks Act, which discusses the Register of Trade Marks and connected provisions on the subject, including the particulars to be recorded in a register as well as in electronic form, how to keep a trade mark active and file for amendments to the Register.

Table of Contents

Introduction

The Trade Marks Act (hereinafter referred to as the “Act”) was enacted in the year 1999, following the repeal of the Indian Trade and Merchandise Marks Act, 1958, the governing law on trade marks prior to the 1999 Act. It is consistent with international law and practices such as those provided under the Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994. It provides for the registration and protection of trade marks for various goods and services and the prevention of the use of false trade marks. It is a comprehensive law that regulates every aspect relating to trade marks, collective marks and certification trade marks. Section 6 of the Act which talks about the registration of trade marks is the focus of this article.

The register of trade marks is a record of registered trade marks under Section 6 of the Act. It is maintained at the head office of the Trade Marks Registry, which is discussed under Section 5 of the Act. The Registrar appointed under Section 3 of the Act is the official, responsible for maintaining the register. The central government is responsible for the appointment of a registrar to carry out the registration of trade marks, as well as specifying the head office and other branches of the Trade Marks Registry for this purpose.

Particulars to be recorded in the register of trade marks

As per Section 6(1) of the Act, the following particulars shall be recorded in the register:

Names, addresses and descriptions of the proprietors;
Notifications of assignments and transmissions;
Names, addresses and descriptions of registered users;
Conditions, limitations and any such matters relating to trade marks as may be prescribed for carrying out the objectives specified under the Act, which are the protection of trade marks and prevention of non-infringement.

Section 2 of the Act is the definition clause, which provides for a consistent interpretation of the aforementioned terms as well as other phrases used under the Act. For example, it defines a trade mark as a mark capable of graphical representation and of distinguishing the goods or services of one person from those of others. Further, it may include the shape of goods, their packaging and the combination of colours. The section also specified other conditions for defining a mark as a trade mark under the Act. It further explains the terms mentioned under Section 6 of the Act comprehensively:

Notify- notify in the Trade Mark Journal published by the Registrar;
Assignment- An assignment in writing by act of the concerned parties- it refers to the transfer of ownership of a trade mark from one party to another, thereby vesting control over the mark with the latter;
Transmission- Any mode of transfer not being an assignment, including by operation of law or devolution on the personal representatives of a deceased;
Registered user- A person registered under Section 49 of the Act;
Limitations- Any limitation of the exclusive right to use of a trade mark given by registration as a proprietor.

As per Rule 53 of the Trade Mark Rules, 2017, the entry shall specify the date of filing of the application, the date of registration, the goods or services and the class or classes in respect of which such registration is made and all particulars required by Section 6(1) of the Trade Marks Act. The Trade Mark Rules, 2017 further delineate the procedure and the particulars to be recorded for the entry of assignments under Rule 84, registered users under Rule 89 and other such matters related to the Act. Under Section 53 of the Rules, the following particulars must be specified in the entry for registration of the concerned trade mark in pursuance of Section 6(1) of the principal Act-

The address of the principal place of business in India of the proprietor/joint proprietors (as mentioned under Section 3 of the Rules);
In the absence of such a place of business, the proprietor’s address for service in India shall be the same as mentioned in the application and his address in the home country (or of the joint proprietors, in case of a jointly owned trade mark);
Particulars of the trade, business, profession, occupation or other description of the proprietor/joint proprietors as mentioned in the application;
Particulars affecting the scope of the registration or the rights conferred by it;
The convention application date, pursuant to an application under Section 154 of the Act which governs applications from citizens of convention countries;
The fact whether it is a collective or certification trade mark is to be recorded;
If it is recorded under the Section 11(4) of the Act, which allows for the registration of a similar or identical trade mark under special circumstances, that fact must also be recorded;
The office of the Trade Marks Registry where the trade mark was registered.

Storage of Register in electronic form

As per Section 6(2) of the Act, it shall be open for the Registrar to keep the records completely or partly, in computer floppies, diskettes or any other electronic form, including e-filing, subject to the prescribed safeguards. Government regulations provide for the online filing of trade marks and digital signatures. The Trade Marks Rules also prescribe a procedure for an electronic mode of filing and registering trade marks. When such records are maintained on computers, Rule 53(3) of the Trade Marks Rules specifies that references in the Act to entries in the register shall be construed as reference to an entry as maintained in such electronic form.

As per Section 53 of the Trade Marks Rules, 2017, the Registrar may, from time to time, consult computer experts to formulate guidelines for keeping official records in electronic form.

How to keep a trade mark active in the register

An active and well-protected trade mark is essential for various reasons, ranging from safeguarding of intellectual property to prevention of deceptive trade marks from being registered to increasing consumer awareness regarding a particular brand. The following steps are essential in order to keep a trade mark alive in a register, thereby affording legal protection:

Register the trade mark

It is essential to register a trade mark in the register maintained under Section 6 of the Act in compliance with its provisions as well as those under the 2017 rules. All particulars that are prescribed must be provided with and the procedure for application and registration must be duly complied with. Registration of a trade mark carries many benefits,- it affords legal protection to the trade mark, safeguards the brand, makes it easier for consumers to identify with the brand and locate the product and further prevents trade mark infringement and unnecessary litigation.

Timely Renewal of trade mark

Section 25 of the Act outlines the duration, removal, renewal and restoration of trade marks. The registration of a trade mark under the Act shall be valid for a period of 10 years but may be renewed from time to time as per the procedure outlined in the Act. The registered proprietor must file an application for renewal within the time and under the procedure provided for and must pay the prescribed fees. The Registrar may, on receipt of the application, renew the registration of the trade mark for a further period of ten years. The Section further provides for the removal of the trade mark from the register if the prescribed conditions are not duly complied with as well as delineates the conditions and procedure for its restoration thereon.

As per Section 2 of the Act, a registered trade mark is one that is actually on the register and remains in force. This means for legal purposes, a trade mark shall remain registered and protected only when it is actually on the register, that is, timely renewal of a trade mark is as important as its registration in order to ensure continued legal safeguards for the trade mark and prevent rivals from encroaching on the brand.

How to file for an amendment to the trade mark register

After the trade mark has been registered, the proprietor or user may want an alteration or amendment due to any change in market conditions, marketing tactics or any other situation in a fast changing business environment. A process for such amendment has been delineated in the Indian trade mark law regime. Section 102 of the Trade Marks Rules, 2017 deals with the alteration of trade marks as provided under Section 59 of the Principal Act. The registered proprietor may apply under Section 59 for the registrar’s permission to add or alter his registered trade mark.

The applicant shall make an application in writing in Form TM-P as provided under the Rules and shall furnish a copy of the trade mark, as it will appear when so amended. Form TM-P is the application for post-registration changes in the trade mark. It is divided into three parts. Part ‘A’ provides for application details such as name, address, contact details of the applicant, details of the trade marks, the reason for amendments and so on. Part ‘B’ provides for the purpose of request and is divided into several sub-categories that can be filled in as per the applicant’s requirement. Part ‘C’ provides for details of the applicant and a list of accompanying documents. A copy of the application and the trade mark so amended shall be served on the registered users, if any, by the applicant.

Documents open to public inspection under Section 148

Section 148 of the Act lays down the documents that shall be open to public inspection at the Trade Marks Registry. This promotes an atmosphere of transparency and accountability in the business environment and prevents trade mark infringement or other unfair business practices. As per Section 148(1), the trade mark register as well as any documents upon which any entry in the register is based must be open for public inspection. It also lists other documents such as notices of opposition, affidavits or documents filed by the parties in proceedings before the Registrar, regulations governing the use of collective marks or certification trade marks (sections 63 and 74 of the Act, respectively), as well as applications for varying such regulations. Other documents open to public inspection include the indexes mentioned in Section 147, including the names of registered users, proprietors of registered trade marks, registered trade marks and trade marks for which publications for registration are pending, as well as other documents that the central government may notify.

This shall be subject to Section 49(4), which provides that the Registrar, on request of the applicant shall take steps to ensure the security of the information provided for the application under the Act, such that the same is not disclosed to rivals, which would defeat the purpose of the Act. When a register is maintained electronically, the inspection of such a register shall be made by inspecting the computer printout of the relevant entry. Any person may, on an application to the Registrar and the payment of prescribed fees, obtain a certified copy of any of the documents mentioned herein.

Conclusion

The registration of a trade mark is essential in order to prevent rival enterprises from deceptive usage of intellectual property. It is equally important for brand-building and for customers to associate with the brand name and mark, such that they remain aware and connected with its product. A trade mark for all practical purposes, is the symbol with which the public identifies a brand. If it is not protected, infringement may occur, which not only reduces the brand value of an entity but also confuses its customer base and reduces its esteem in the market, particularly if a rival entity deceptively uses the trade mark for illegal business practices.

Registration of the same not only prevents such infringement but further reduces the chances and costs of litigation in case a trade mark does get infringed. Public inspection of documents related to the registration of trade marks further ensures transparency in the entire process. E-filing has also made the whole process accessible and convenient for both businesses and customers and has reduced the time and cost for trade mark registration, infusing various aspects of the procedure from applications for registration to alteration of trade marks with more efficiency.

Providing such a regime of legal regulation and protection by vesting appropriate powers and duties in the Registrar shows commitment to international agreements and to eradicating unfair or deceptive practices, thereby providing a level-playing field for all businesses. When businesses through registration are able to secure their intellectual property at lesser cost and labour, particularly through the mode of e-filing, it ensures that all participants in the market indulge in fair competition, one that infuses trust and accountability.

The growth of intellectual property assets is only certain with the establishment of a startup ecosystem that is constantly changing and innovating. While the importance and awareness of the trade mark regime have only grown, additional steps must be taken to strengthen the intellectual property law in India and to further the objective for which Section 6 of the Act has been formulated. While the procedure for registration and renewal of trade marks has indeed been streamlined, making the process accessible to smaller businesses, including MSME’s must be the objective of any further reforms undertaken in the trade mark regime.

Frequently Asked Questions (FAQs)

Which authority shall exercise control over the register of Trade Marks?

As per Section 6(5) of the Trade Marks Act, the Registrar shall exercise control and management over the Register. Further, as per Section 6(6), every branch office of the Trade Marks Registry shall keep a copy of the register and of the documents mentioned under Section 148 as the central government may notify.

Who shall appoint the Registrar?

According to Section 3 of the Trade Marks Act, the central government may, by notification in the Official Gazette, appoint a person to be known as the Controller-General of Patents, Designs and trade marks, known as the Registrar for the purposes of the Trade marks Act, 1999.

References

Copyright and music licensing collectives : collective management organisations explained

By

Vanshika Kapoor

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August 31, 2024

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This article has been written by Gouri Shrivastava pursuing a Diploma in International Contract Negotiation, Drafting and Enforcement from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

In the year 2023, Grammy Award winner and global popstar Ed Sheeran was in the headlines for his legal victory in a copyright infringement case over his 2017 massive hit “Shape of You.” The petitioners’ lawyer alleged that there was an ‘indisputable similarity’ between Ed Sheeran’s “Oh I, Oh I, Oh I” in the chorus of Shape of You and “Oh why, Oh why” in the track of the plaintiffs. This high-profile case underlined the significance of copyright protection in the lives of artists, especially in the music industry.

As per WIPO’s definition, “Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.” For singers, musicians and other artists, copyright serves as a safeguard against unauthorised usage of their work. Further, by way of licensing, they can earn revenue and generate income for years by giving rights to the licensee to lawfully use their creation.

In today’s digital era, where a person can easily access, use, and exploit the artistic or literary work of anyone in the world, the imperative of acquiring a proper license cannot be overstated. With the recent upsurge in online platforms like Spotify, Jio Savan, YouTube, Gaana.com, etc., it has become all the more important for the artists to navigate their path through complex digital landscapes to secure their work through licensing and must ensure that it is monetised well. Additionally, licensing is a brilliant way to get compensated for their creation and even protects them against the unbridled piracy, which has seen a steep rise in the past decade.

Collective management organisations (hereinafter referred to as CMOs) play a crucial role in this context. CMOs facilitate the administration of the copyright of a performer, producer, or any other artist to a willing licensee. It is responsible for rights clearance and ensures the economic interests of the artist, performer, or producer are catered to. Examples of CMO are the Indian Performing Rights Society (IPRS) in India and ASCAP (American Society of Composers, Authors, and Publishers) in the United States.

History and evolution of copyright in India

The modern copyright law is a result of the long struggle to balance the needs of the users with the rights of artists, publishers, and producers. The statutes governing copyright differ from country to country. Even though these laws may differ across jurisdictions, there remains one common underlying objective: to grant the original creator due credit for their work and provide them with a source of income through their creation. The rights granted to authors must be in line with public interest, this postulates that knowledge should be distributed and not concealed from anyone. It is generally agreed that the exclusive rights given to authors via copyright are a way to encourage these creators to devote their efforts and valuable time to artistic activities. Therefore, information dissemination through the work of these creators must occur for the benefit of the public at large.

Evolution of the Copyright Law in India

The roots of copyright law in India can be traced back to the times when manuscripts were copied by scribes and preserved in palm leaf manuscripts. Although the British were the ones to introduce copyright law in India, even before that, the Bombay High Court in the case of McMillan v. Khan Bahadur Shamsul Ulama Zaka (1895-ILR Bom 557) held that the Copyright Act of the United Kingdom would be applicable to India. The U.K Copyright Act of 1842 was the predecessor of the Indian Copyright Act, 1847, which was the first ever copyright law in India. The motive behind this legislation was to give protection to the work of British authors in India.

It was only after the independence of our nation that the copyright laws in India took significant strides. The Copyright Act, 1957, which serves as the primary source of legislation for the present copyright laws in India, saw prominent changes by the Government of India post-independence.

Expanding its scope further, it included not just artistic and literary works but also music, films, and sound recordings. A copyright board was constituted through the Act to govern disputes related to copyright. Subsequently, to bring our laws at par with international standards, India became a part of the international treaties and conventions on copyright, such as the Berne Convention and the Universal Copyright Convention.

India’s Copyright Act of 1957 is consistent with all international copyright conventions and treaties to which it has acceded. Among these are the Berne Convention (updated in 1971), the Universal Copyright Convention of 1952, the Geneva Phonogram Convention of 1971, the TRIPS Agreement of 1995, the WIPO Copyright Treaty of 1996, the WIPO Performances and Phonograms Treaty of 1996, and the Marrakesh Treaty of 2013. Although India does not participate in the Rome Convention of 1961 or the Beijing Audiovisual Performances Treaty of 2012, the Indian Copyright Act meets nearly all the standards of these agreements.

What is music licensing

For a plethora of people, music plays an important role in their day-to-day lives. From energetic motivational music for a gym workout to soothing and pleasant music for a tedious day, music helps a lot of people survive through the day.

However, without the artists’ ability to receive economic benefits from their work and due credit for their creations, their motivation to compose more such masterpieces would cease to exist. Here comes the concept of music licensing to protect the copyright of the composers and musicians.

As per the Indian Copyright Act, “musical work means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken, or performed with the music.” Hence, a license is required to authorise, play, or perform music in public places. This license is called a music license.

Types of music license in India

Mechanical license: With the help of mechanical license, general public can enjoy the artists’ creations in the form of CDs, online published music, or any other form of distribution. Generally, this type of license is used by recording companies.

Copyrighted artists are given monetary compensation for the redistribution and usage of their original work and its re-creation. A mechanical license must be obtained even if there is a slight modification in the original work, such as adding extra lyrics, changing the original tune, or altering anything in the original piece.

Public performance license: This is the most common type of music license and is obtained to play music in public places such as malls, airports, shops, restaurants, and even in concerts. The Public Performance License is also crucial for venues and event organisers as it ensures fair compensation to the artists for public use of their work.
Synchronisation License (Sync): A synchronisation license, also referred to as a sync license, authorises the use of music along with visual media. This is crucial for filmmakers, TV producers, and advertisers who wish to incorporate music into their films, TV series, advertisements, or video games. For example, a filmmaker who wishes to utilise a specific song as background music for a scene in a film must secure a sync license from the music’s copyright holder.
Master license: A master use license is required when a pre-existing recording of a song is used in a new project, such as in a film, TV show, or commercial. This license is obtained from the owner of the recording, which is often the record label. For example, a commercial that wants to use a specific recording of a song in its advertisement must obtain a master use license to legally include the recording.
Print rights license: A print license allows you to produce the music in printed form, such as sheet music or songbooks. Publishers need this license in order to effectively print and sell music notation. For example, a company that produces and sells sheet music for popular songs has to get a print license from the copyright holders. This ensures that composers and lyricists receive compensation for the distribution of their written music.
Theatrical license: Theatrical licenses are a type of written permission that is widely used in the theatre industry. The license is required at any time a copyrighted work is performed on stage in front of the audience.

While it is nearly impossible for every copyright holder to manually handle hundreds of license approvals for their work and equally tedious for licensees to approach each creator individually, there is a concept called Collective Management Organizations (CMOs) to streamline this process. You may not come across this term very often in your daily life. But, let’s simplify this: Collective Management Organisations are basically entities that manage the rights of multiple copyright holders, ensuring that artists receive fair compensation for the use of their works. They play a crucial role in the music industry by administering and issuing various types of music licenses and serve as a link between the creators and users of copyrighted work. CMOs manage the crucial rights of a copyright holder, some of them are enumerated below:

Licensing: The members grant CMOs the right to issue licenses for the use of their copyrighted work, such as music, art performances, etc. This includes distribution of performance licenses for live music, mechanical licenses for reproduction and synchronisation licenses for audiovisual works.

Royalty collection and distribution: CMOs routinely collect royalties from users of copyrighted work, such as broadcasters and restaurants playing an artist’s copyrighted music on their premises. Depending upon the usage of their work, the economic benefit is then transferred to the rights holder.

Rights management: CMOs ensure that the rights of their members are duly protected and properly licensed. They are authorised to take legal action against unauthorised usage of the work of their copyrighted members.

What kind of rights are managed by collective management organisations

Collective management organisations play a pivotal role in safeguarding and administering various rights associated with creative works. Here’s an expanded elaboration on the rights they typically handle:

1. Public performance rights:

Public performance rights encompass the use of music in public spaces, such as clubs, restaurants, shopping malls, hotels, and community halls.
These rights extend to live performances by musicians, DJs, and bands, as well as background music played in retail stores, offices, and other commercial establishments.

2. Broadcasting rights:

Broadcasting rights cover the transmission of live and recorded performances on radio and television.
This includes music played during news broadcasts, talk shows, documentaries, and advertisements.
Webcasting and streaming services also fall under this category.

3. Mechanical reproduction rights:

Mechanical reproduction rights involve the making of copies of music in physical formats such as CDs, vinyl records, and cassettes.
They also extend to digital reproductions, including downloads, streaming, and the creation of digital music files.
Each copy made requires the permission of the copyright holder or their representative.

4. Performance rights for dramatic works:

Performance rights for dramatic works pertain to live performances of plays, musicals, and other theatrical works.
These rights ensure that playwrights, composers, and lyricists receive compensation when their works are performed in theatres, auditoriums, and other venues.

5. Reprographic reproduction rights:

Reproduction rights cover the photocopying of literary and musical works.
This includes the reproduction of sheet music, textbooks, articles, and other written materials.
Educational institutions, libraries, and businesses must obtain permission or pay royalties for making copies of copyrighted works.

6. Related rights:

Related rights protect the interests of performers and record producers.
They include the right to receive compensation for the public broadcast or communication of their recordings.
This ensures that artists and record labels are fairly compensated for the use of their work on radio, television, and online platforms.

Collective management organisations play a crucial role in ensuring that creators and rights holders receive fair compensation for the use of their works. They work closely with copyright holders to license and monitor the use of creative content, ensuring that all parties involved are properly remunerated.

Membership of collective management organisations

The opportunity to join a collective management organisation (CMO) extends to a wide range of copyright holders. Authors, composers, publishers, writers, photographers, musicians, and performers all have the ability to become members of a CMO. These organisations serve as central entities that administer and protect the intellectual property rights of their members, ensuring that creators receive fair compensation for the use of their works.

While broadcasting organisations play a crucial role in disseminating creative content to the public, they are generally considered users of copyrighted works and are not included in the membership of CMOs. However, it’s worth noting that broadcasting organisations do hold certain rights in their broadcasts, such as the exclusive right to communicate their broadcasts to the public. These rights are distinct from the copyright held by the creators of the underlying works being broadcast.

The exclusion of broadcasting organisations from CMO membership reflects the complex interplay between copyright law and the rights of users. Copyright law aims to strike a balance between the interests of creators and the need for public access to creative works. Broadcasting organisations, as intermediaries between creators and audiences, have a significant role in making creative content available to the public.

Despite their exclusion from CMO membership, broadcasting organisations are still subject to copyright law and must obtain the necessary licenses and permissions from copyright holders before using their works. This ensures that creators are compensated for the use of their works, while broadcasting organisations can continue to provide valuable services to the public by disseminating creative content.

The relationship between CMOs and broadcasting organisations is one aspect of a broader ecosystem of copyright management. Various other entities, such as rights societies, licensing agencies, and government regulatory bodies, play important roles in ensuring that copyright holders receive fair compensation for the use of their works.

When you join a collective management organisation, you share some personal details and list the works you’ve created. This helps the organisation keep track of your works so that when they’re used, you get paid correctly. The works listed by members form a “national” or “local” collection, as opposed to the “international repertoire,” which includes foreign works managed by similar organisations worldwide.

How does a collective management organisation work

There are different kinds of collective management organisations, each dealing with specific types of works, like music, dramatic pieces, or multimedia productions. These organisations handle various rights on behalf of their members. Traditional collective management organisations negotiate rates and terms of use with users, issue licenses, and collect and distribute royalties. The individual rights owners don’t have to get involved in these steps.

Rights clearance centres work a bit differently. They issue licenses based on the conditions set by each rights holder. For example, authors of books and magazines use these centers to manage the reproduction of their works. Here, the centre acts as an agent, but the rights holders set the terms themselves.

Then, there are “one-stop shops,” which are coalitions of different collective management organizations. They make it easier for users to get the permissions they need from one place. These are becoming more popular due to the rise of multimedia productions, which involve various types of works and need multiple permissions.

Conclusion

In today’s digital world, where it is very easy to copy and reproduce the work of others by unethical means, obtaining a proper license plays a crucial role. The emergence of streaming platforms and websites allowing free music downloads has made it easier than ever to listen to our favourite songs just by one click, but it has also underscored the importance of ensuring fair compensation for artists and creators of copyrighted works. Copyright laws in India have evolved significantly over the years, leading to the enhancement of music licensing that protects the creators’ rights while ensuring its enjoyment for users.

Even though obtaining a music license may be tedious at times, it is critical to obtain permission for the use of copyrighted music as it ensures that creators of these works receive due credit and royalties for their creation. Collective management organisations (CMO) play a pivotal role in this ecosystem. They serve as a link between the copyright holders and the users of their work while ensuring that the creators get fair economic benefit from their work.

Bangalore Development Authority vs. Air Craft Employees Coop. Society (2012)

By

Rachit Garg

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August 31, 2024

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This article is written by Arya Senapati. It attempts to analyse the case of Bangalore Development Authority vs. Air Craft Employees Coop. Society through its factual background, legal issues, arguments of both sides and the judgement delivered by the court. It shall also cover all related case laws and legal provisions discussed in the case. Through a critical analysis of the judgement, this article attempts to highlight the significance of this case for the Indian legal system.

Introduction

In the realm of governance of a nation, separation of power is inevitable for smooth functioning. In the Indian context, the legislature, executive, and judiciary are entrusted with their own spheres of functions and operations. This work division ensures efficiency in the meticulous governance of the state and its instrumentalities. While the legislature creates laws, the executive implements them, and the judiciary interprets them. The functions through which state machinery implements laws are often known as administrative functions, wherein the state administers particular legislation to fulfil the purpose for which it was created. The executive is largely responsible for the execution of administrative functions. Most times, by creating such laws, the legislature also clears certain executive or administrative authorities through it who are responsible for manifesting the interests of the law and fulfilling its purpose. They are also given the power to create rules and regulations for the implementation of the law. This conferment of power, in the sphere of administrative law, is referred to as the delegation of power. In essence, the legislature’s expertise is limited to certain matters and it’s unreasonable to expect the legislature to go into the details of every subject matter in legislation. Therefore, delegation of rule-making power is necessary to preserve the purpose of the legislation and create efficient machinery. While the importance of delegation is well-established, there are checks and balances in place to ensure that delegation is not excessive in nature. Cases like Bangalore Development Authority vs. Air Craft Employees Coop. Society (2012) are landmarks in nature and significant to a large extent as they expand the ambits of this theory of excessive delegation and help courts ascertain whether a particular delegation of power is reasonable or not.

Details of the case

Appellant: Bangalore Development Authority

Respondent: Aircraft Employees Coop. Society

Court: Supreme Court of India

Bench: Asok Kumar Ganguly, G.S. Singhvi

Date decided on: 24.1.2012

Provisions involved: Article 14, 265, 300A of the Indian Constitution

Factual background

The case arises as an appeal against the order given by the Division Bench of the Karnataka High Court. The order was made on writ petitions filed by the respondents and the main contention of the petition was that Section 32(5A) of the Bangalore Development Authority Act, 1976 (hereinafter referred to as the ‘1976 Act’) was violative of Article 14 of the Indian Constitution (Right to Equality).
The order declared the 1976 Act to be violative of Article 14 and held that it was void and inoperative. As a consequence of the order, the High Court held that all the conditions incorporated under the orders passed by the Bangalore Development Authority by virtue of this provision sanctioning residential layout plans or work orders through which the respondents were required to pay multiple amounts in form of charges must be quashed and the refund must be issued immediately.

Developments leading to the case

Due to an imperceptible increase in the population of Bangalore from the year 1970 to 1980, the available public amenities like roads, water, and electricity were stretched beyond a limit to meet the additional requirements of such necessities as well as to address the traffic problems. New development schemes were drafted and approved in 1984 for Bangalore city. The plan included the augmentation of the supply of water and the creation of a ring road. The Bangalore Water Supply and Sewerage Board sought to take up the Cauvery Water Supply Scheme for the necessity of an additional 270 MLD of water at a cost of Rs. 240 crores. After analysing the situation and meeting the demand for additional water, the government approved this proposal.
The state government issued an order and directed the BDA to make a grant of 30 crores to BWSSB as the most amount of water is required for BDA activities. The grant was to be paid in installments from 1987-88 to 1989-90 by adding an additional amount of water supply component at the rate of Rs. 10,000 on average per site for all the layouts formed by BDA.
As per the directions, BDA started collecting the amount per site and later on, the levy was increased to Rs. 1 lakh per acre. By 1992, it was found that BDA had not been able to develop and distribute the sites as it was expected to do. A proposal was submitted by the Commissioner of BDA to the State Government to state that the contribution towards the Cauvery Scheme must be distributed among those applying for change of land use and the private layouts developed by house building societies and major housing projects. The state government agreed to the suggestion and passed the order for levying the tax at the rate of Rs. 2 lakh per acre.
In the year 1992, BDA planned to construct 63 kilometres long Outer Ring Road and a 3.5 kilometres long Intermediate Ring Road, which assumed a cost of Rs. 115 crores and a possible enhancement of up to Rs. 130 crores. Almost 37 km of the Outer Ring Road was supposed to go through the BDA layouts and the rest through land outside the BDA layouts. The cost of construction of the area within the BDA layout was covered by charging the allottees of the site and for the rest, financial assistance was sought from the World Bank. Later, it was decided that the partial burden of the cost could be taken by the beneficiaries of the private layouts and just like the Cauver Scheme, a surcharge for the Ring Road was to be levied on sites formed by BDA and private housing societies at the cost of Rs. 1 lakh per acre. BDA passed a resolution laying such charges at different rates based on changes in land use in different areas and at Rs 1 lakh per acre on housing societies and private lands.
The AirCraft Employees Cooperative Society Ltd. sought permission for a layout in respect of 324 acres and 30 guntas of land situated in Singasandra and Kudlu villages, Surjapur Hobli, and Begur Hobli. The proposal was reviewed and approved on the condition that Rs 2 lakh per acre was to be paid for the Cauvery Scheme and Rs lakh per acre was to be paid for Ring Road Surcharge. It also imposed the condition that for whatever civil part of the work is done by the respondents, it shall be done as per the supervision of the BDA and this decision of the BDA was communicated to the respondent through a letter dated 12.1.1993.
The decision taken by the BDA was considered unfavourable by the AirCraft Employees Cooperative Society Ltd., as the conditions imposed by them were not fair as per the respondents. The respondents challenged the said decision through a writ petition and demanded the quashing of the condition, which imposed Rs. 2 lakhs per acre towards the Cauvery Scheme and Rs. 1 lakh per acre as the Ring Road Surcharge.

Grounds of challenge by the respondent

The respondent challenged the order on various grounds. They are:

The order that was passed by the state government was only applicable to the sites that were formed by the BDA and it was not equally imposed on the private house building societies, as the Chairman of the BWSSB believed that it won’t be practical to assume the responsibility of providing water supply and underground drainage systems to those particular layouts. Due to this order, the societies had to handle their own water demands through other arrangements.
The Cauvery Scheme, as it had been planned, will only be able to meet the requirements of those residing within the municipal area and some new layouts close to the city.
There exists no provision in the Bangalore Water Supply and Sewerage Act, 1964, which deals with the burden of capital necessary for executing schemes that could be passed on to private house-building societies. The provisions of the law do not even mention anything regarding BWSSB recovering costs from private house-building societies.
The 1976 Act does not empower the BDA to transfer the burden of costs from the Cauvery Schemes to any private layouts.
Considering the fact that 20,000 acres of land have been acquired by the BDA to form layouts in proximity to Bangalore and 10,000 acres have been acquired by the government for House Building Cooperative Societies, in a situation where Rs. 1 lakh or 2 lakh per acre is charged, the government gets up to Rs. 600 crores from BDA only, even though the contribution of BDA was initially fixed to be Rs. 30 crores.
The condition for demanding Rs 1 lakh and 2 lakh per acre towards the Cauvery Scheme is against the provisions of Article 265 of the Constitution of India (no tax can be imposed without the authority of law).
The sanction of Rs 1 lakh per acre as ring road surcharge is not provided by any law and therefore the state and the BDA cannot impose such a burden on any private layout without ascertaining whether the ring road would be of any use to the members of the house building societies.

Post-challenge situation

While the writ petition was pending, the State Legislative Assembly amended the 1976 Act and added Section 32(5A), which authorised the BDA to demand any amount of money in addition to those mentioned in the section to fulfil the requirements of executing any scheme for augmenting water supply, electricity, roads, transportation and other amenities within the Bangalore metropolitan area.
Based on the amendment of the law, the respondents amended the writ petition and challenged the constitutional validity of the newly added provision on the ground that it is discriminatory and therefore violates Article 14 of the Indian Constitution. The provision provided uncontrolled and unchecked power to the BDA to demand money for various schemes. The respondents stated that the new provision was inserted only to legitimise the imposition of charges for the cauvery scheme and the ring road.
During the pendency of the litigation, the respondent sought approval from the BDA for starting civil work and it was permitted with certain charges: a supervision charge at the rate of 9% on civil work, an improvement charge, an examination charge, a slum clearance development charge, an MRTS tax, and other miscellaneous charges.
The respondent further challenged the conditional approval of the civil work through a writ petition The challenge was based on the ground that the 1976 Act doesn’t provide BDA with the authority to impose such taxes and even the legislature has not laid down any guidelines for such demands from private housebuilding societies. They also contended that the BDA was under the mistaken impression that the layout fell under its jurisdiction.
As per the respondents, no notification was issued by the state government to include the villages of north and south talukas within the Bangalore metropolitan area. The respondents also pleaded that the state government had already collected conversion fines and BDA has no jurisdiction to levy any betterment fee on the same. A similar plea was raised in respect of the mass rapid transport system cess and slum clearance charges.
Many other house-building cooperative societies had also filed several writ petitions between the years of 1994 and 1998 to strike down Section 32 (5A). The general contentions of such housing societies were that the BDA has no jurisdiction over making demands for payment of certain amounts under various heads for sanction of residential layout plans in areas that do not fall within Bangalore metropolitan area.

High Court division bench decision

The Division Bench of the High Court primarily considered the legal issue i.e. whether the notification declaring certain villages to be under the jurisdiction of BDA is invalid as the names of the villages and other specified areas were not published in the official gazette and if in the absence of such notifications, the villages in which house societies have formed layout can be treated as part of Bangalore metropolitan area or not.
By referring to the definition of “Bangalore metropolitan area” mentioned under Section 2(c) of the 1976 Act, as well as the contents of the notification, the High Court held that the description of the area mentioned in the notification was in consonance with the definition of Bangalore metropolitan area as reference had been made to the villages in Schedule I. By reading the notifications passed on 13.3.1984 and 1.3.1988, it is clear that the particular villages form part of Bangalore metropolitan area.
The division bench made no decision on the plea of the respondents that some of the villages were not included in the schedules, as the decision of this question requires investigation into a question of fact and can be considered during the approval of a plan for the layout of a particular society.
By referring to Article 265 and 300A of the Indian Constitution, the division bench held that the BDA has no authority to levy and recover sums specified in the demand notice. It was held that the approval of a layout plan or work order could not be made while having conditions of deposit of the sums demanded by BDA.
By analysing the provisions of Section 32 of the 1976 Act, the Division Bench held that there is no principle regarding the determination of expenditure to be incurred while executing any scheme or work. There is no doubt that the developmental schemes for augmenting water supply and other amenities only provide for the benefit of the Bangalore Metropolitan Area but the real question is what rate of expenditures the Bangalore metropolitan area bears for such expenses has to be paid by the applicant seeking approval for a layout plan.
As per the Division Bench, there is no provision or guideline regarding the same and there are no rules framed under the provisions of the Act to determine the amount.
By relying on the decision of Ram Krishna Dalmia vs. Shri Justice S.R. Tendolkar and Ors. (1958) as well as the decision of Jyoti Pershad vs. The Administrator for the Union Territory of Delhi (1967), the division bench observed that in the current case, Section 32 (5A) doesn’t provide any guidelines to determine the portion of expenditure to be borne by the applicants. The entire expenditure cannot be imposed on the applicant, either. The section is vague in its language and doesn’t answer any important questions regarding the imposition of the burden of expenditure and therefore, it can be said that it confers unbridled powers without providing any guidelines. The section also doesn’t provide any remedy against the order of the authority.
While there is a remedy mentioned under Section 63 of the 1976 Act to allow for revision by the government where it shall consider the legality of the order, it truly lacks substance. The non-obstante clause of Section 32 (5A) confers unbridled power on the authority, which paves the way for unequal and discriminatory treatment of the applicants. The division bench ultimately held that the demand of BDA under Section 32 (5A) is illegal and has no jurisdiction.

Creation of Town Planning Act, 1961

As the new State of Mysore was formed, a necessity for a standardised law for growth planning, use of land, and development of town planning schemes was felt to be needed. In lieu of such a necessity, the State Legislative Assembly legislated the Mysore Town and Country Planning Act, 1961.
The primary object behind the creation of this law was to plan or replan urban and rural regions of the Mysore state and provide all sorts of civic and social amenities to the people through efficient planning. It also intended to prevent unsupervised land development through land speculation and profiteering, to safeguard and enhance various recreational amenities and work towards the sustainable use of land resources, and to manage the growth prospects of populated regions of the state to maintain a good standard of environmental health and hygiene, create facilities for the growth of trade and commerce and promote the general living standards of the people of the state.
In the year 1973, the State of Mysore was renamed Karnataka, and the nomenclature of the Town Planning Act was also changed accordingly. Section 4 of the Town Planning Act talks about the creation of a State Town Planning Board by the state government. The state government shall have the power to issue a notification and declare any region in the state a “local planning area,” and constitute a “Planning Authority” for the development of the region.
The Planning Authority will have jurisdiction over the said area and by virtue of Section 9(1) of the Act, it shall have a duty to conduct a survey of all the areas under its jurisdiction and, henceforth, prepare and publish a blueprint development plan for the said area. The blueprint should then be submitted to the state government for preliminary approval. As per Section 12(1), the blueprint development plan must mention the manner in which the planning is to be supervised, implemented, executed, and regulated. Section 19(1) states that a detailed development plan must be created in the next stage and submitted to the state government for final approval. Section 21 dealt with factors that must be considered while drafting the development plan and Section 26 imposed a duty on all of the Planning Authorities to develop town planning schemes.
The contents of the blueprint or initial development plan must consist of the general use of land resources and the creation of zones for residential, commercial, industrial, agricultural, recreational, and educational purposes. It shall create proposals for the construction of roads and highways, reservation of land for union and state authorities and their functioning, the declaration of special control over certain lands for developments of building lines, and other such proposals for public amenities.
The comprehensive or detailed development plan as engaged under Section 19 must consist of detailed zone declarations and zone-based regulations, detailed street patterns highlighting all the major and minor roads, national and state highways, traffic circulations, and all other areas reserved for farming, parks, and playgrounds. It shall notify housing areas, road developments, plans for future expansions, stages of implementation, need for land acquisitions, financial responsibilities, and source of funding or finances.
The Town Planning Scheme as envisaged under Section 26 dealt with various aspects such as laying out or relaying out of the land, filling the low-lying swampy and unhealthy areas and levelling those lands, laying out new streets, constructions, extensions, diversions, etc, construction or removal of buildings, bridges, and other structures, reserving land for public facilities, drainage, sewerage, lighting, water supply, preservation of historical and natural objects, imposition of construction conditions, etc.

Creation of Bangalore Development Authority

The 1976 Act was created against the backdrop of a national plan to create a single authority for the development of metropolitan areas. Earlier, before the creation of the Bangalore Development Authority (BDA), there were many authorities like the City of Bangalore Municipal Corporation, The City Improvement Trust Board, etc., which led to confusion as the jurisdictions of various authorities and their functions overlapped with each other. Owing to this, the State of Karnataka came to realise that a unified authority would be more feasible for developing the metropolitan area of Bangalore and therefore Section 81-B was introduced to the Town Planning Act, which sought a deemed dissolution of the City Planning Authority in relation to all the areas falling under the jurisdiction of the Bangalore Development Authority.
Section 14 of the 1976 Act tasked the BDA to promote and conserve the development of the Bangalore Metropolitan Area and as a consequence of this object, it shall have the power to acquire, hold, maintain, and do away with moveable as well as immovable property, within or outside its jurisdiction. These land areas shall be used for construction, building, engineering, and other necessary implementations necessary for the development of the area.
Section 15 of the 1976 Act describes the power of the BDA and states that the authority can chart out detailed developmental schemes for developing the Bangalore Metropolitan Area and, with the permission of the government, undertake certain work for developing the area while bearing expenditures for those works. It can also undertake additional development schemes on its own if it feels it has enough resources to implement them.
The development scheme formed under Section 15 shall mention the acquisition of any land required for executing the plan, laying and relaying of all necessary lands for construction and reconstruction of buildings, drainage, water supply, electricity, reservation for public spaces, sanitary arrangements, construction of houses, etc.
The Authority shall also have a duty to maintain the streets adequately and manage the drainage and sanitation of the streets. It shall also have the power to levy taxes on lands and buildings within its jurisdiction. It can impose various cess like education cess, health cess, library cess and beggary cess. It can form new extensions and layouts and make new private streets within its jurisdiction from time to time.
With the passage of time, Section 81-B was inserted, which stated that from the date of the constitution of the Bangalore Development Authority under the 1976 Act, the BDA shall be the local planning authority for local planning of the city of Bangalore. It shall exercise the same powers, and functions and have the same duties as the Local Planning Authorities envisaged under the 1976 Act.
On 1.3.1988, the state government issued a notification under Section 2(c) of the 1976 Act, which specified the villages that are mentioned under the First Schedule and within the boundaries indicated within the Second Schedule to Notification dated 13.3.1984.

Contentions of the appellants

The appellants contended that the lands mentioned as the respondents’ residential layout fall well within the boundaries of the local planning area of the authorities and hence, they are liable to pay layout charges with respect to the cauvery scheme, ring road surcharge, slum clearance charge, betterment charges, supervision fees, etc.
The charges have been levied through the power and directions given by the state government and on the decision of the BDA.
It is essential that the societies carry out civil work under the able supervision of the BDA and hence they are liable to pay supervision charges.
Regarding Section 32(5A), it does not suffer from any kind of constitutional infirmity and the guidance for levying such charges can be found in the scheme of the Act.

Legal issues raised

There are many legal issues and questions of law that the bench had to deal with in this case. They are:

Whether Section 32(5A) of the 1976 Act violative of Article 14, Right to Equality mentioned in the Constitution of India?
Whether Section 32(5A) prone to excessive delegation of legislative power?
If the demands of the charges made under cauvery scheme amount to tax and are hence violative of Article 265 of the Constitution of India?
Has the BDA collected charges in excess of its contribution towards the cauvery scheme from the house building societies and allottees of sites for the layouts prepared by it?

Supreme Court’s decision

The Apex Court first dealt with the question of whether the area in which the respondents had formed layouts fell within the ambit of the Bangalore metropolitan area or not. In the challenged order of the division bench, the judges recorded their grounds for negating the challenge of the respondents to this question. By referring to the decision made in Bondu Ramaswamy vs. Bangalore Development Authority (2010), the Supreme Court held that the villages mentioned in the schedules that were added to the notifications of 1.11.1965 and 13.3.1984 were parts of the Bangalore metropolitan area. The question of whether the Bangalore development authority had lost its territorial jurisdiction over the regions in which the house building societies had formed layouts couldn’t be decided by the Apex Court as it was not challenged by the respondents while observations were made by the High Court Division.
There were a few more important legal issues or questions that the Supreme Court dealt with next. They were:

Is Section 32(5A) of the 1976 Act violative of Article 14, Right to Equality mentioned in the Constitution of India?
If Section 32(5A) is prone to excessive delegation of legislative power.
If the demands of the charges made under the cauvery scheme amount to tax and hence violative of Article 265 of the Constitution of India?
Has the BDA collected charges in excess of its contribution towards the Cauvery Scheme from the House Building Societies and allottees of sites of the layouts prepared by it?

The argument made by Shri Altaf Ahmed, the senior counsel representing BDA, and Shri Sanjay Hegde, the senior counsel representing the State of Karnataka, that Section 32(5A) was not violative of Article 14 as it didn’t discriminate between the allottees of the layout sites made by the house building societies and the BDA layouts but rather treated them equally with the burden of charges for the cauvery scheme as well as the ring road surcharge, was not sustained in the High Court. Similarly, as per the Supreme Court, the High Court division bench committed a severe error while deciding the constitutionality of Section 32(5A) and stating that it is violative of Article 14.
The High Court ignored the principle that a statutory provision is presumed to be constitutionally valid unless it is proved to be unconstitutional. The burden of proof to establish discrimination lies on the person alleging such discriminatory behaviour. Unless a strong factual foundation is provided to prove that the provision violates Article 14, it shall be presumed to be constitutional.
Referring to the principle of presumption of constitutionality, the Apex Court referred to its previous judgement in the case of Charanjit Lal Cowdhuri vs. Union of India (1950) wherein the court stated that a law could be constitutional even if it relates to a single person and in cases where, under special circumstances, a law is only applicable to a single person and not others, the single person can be treated as a class on his own for the purposes of reasonable classification. Secondly, the well-established doctrine of the American Courts was well-formed and stated that presumption is always in support of the constitutionality of a law and therefore, the burden of proof of unconstitutionality falls on the one who is attacking the law. The person attacking the law has to prove a clear transgression of constitutional principles. It is always presumed that the legislature understands and appreciates the needs of its own people and therefore laws are made to meet those requirements and whatever discrimination arises is based on adequate grounds.
Referring to its own decision in the case of M.H. Qureshi vs. State of Bihar (1959), the court held that: courts, while deciding upon the constitutionality of a law, must presume that the legislative authority had correctly acknowledged and understood the needs of the people that it represents and were directed towards the problems of the general populace. Whatever discrimination was manifested by the law was presumed to be done on valid grounds. In order to preserve the constitutionality of a law, the court must take into consideration subjects of common knowledge, common report, and the history of the time in which the legislature drafted the legislation in question
Referring to Ram Krishna Dalmia vs. Justice S.R. Tendolkar (1958), upon which the impugned order of the High Court relied, the Apex Court had stated in the case that there is forever a presumption in support of the constitutionality of a law and the burden to prove unconstitutionality falls on the party attacking it. The party attacking must show a clear violation of constitutional principles to effectively challenge the law. It also reiterated the fact that while determining the constitutionality of a provision, to sustain the presumption, the court must consider the situation at the time in which the law was made. All the facts which can be conceived at the time of the creation of the legislation must be considered by the court to presume the constitutionality of the law.
Referring to the case of R.K. Garg vs. Union of India (1981), the Apex Court reiterated the observations of the case, which were: While determining the constitutionality of a law and if it is violative of Article 14 or not, it is important to consider certain well-established principles developed by the courts that act as guidelines for other courts to discharge their constitutional function of judicial review. The primary rule is that there shall always be a presumption of constitutionality unless it is challenged and the burden to prove unconstitutionality falls on the alleged party.
Keeping the decisions of all the cases mentioned in mind, it was held that even if the writ petitions filed by the respondents challenged Section 32(5A) as discriminatory, they did not mention any valid grounds or basic foundations for supporting their claim of unconstitutionality. Therefore, the High Court division bench was not right to reach the conclusion that the provision is discriminatory and violative of Article 14 of the Indian Constitution.
While talking about the problem of hostile discrimination in relation to Section 32(5A), the court must not ignore the facts of unexpected growth in the population of the city of Bangalore. The policy decision was taken to encourage house-building societies to form private layouts, and the BDA was obligated to take effective steps to enhance the civic facilities within Bangalore metropolitan area. Therefore, it became necessary for the BDA to augment necessary resources through itself and other state agencies by making adequate contributions. Therefore, the observation of the High Court that by restricting the scope of loading the burden of expenses on the allottees of the sites in the layouts developed after 1987, the legislature violated Article 14 was absolutely wrong and inconceivable. This observation made by the High Court cannot be sustained in law. The imposition of such burdens was held not to be a violation of Article 14.
Coming to the next question, the High Court had observed that Section 32 (5A) is a piece of excessive delegation, as the sums mentioned in the provision were supposed to be paid by those who intended to form an extension or layout so as to meet the expenditures required for roads, drains, water supply, lighting, etc. The respondents had argued that the provision suffers from excessive delegation as the legislature mentioned no policy for recovering the cost of infrastructure necessary for augmenting water, electricity, roads, etc.
On the question of excessive delegation, the Supreme Court first referred to the case of Devi Das Gopal Krishnan vs. State of Punjab (1967), wherein the Apex Court went against the idea of liberal application of the concept of delegation of legislative power but while referring to other judgements like Jyoti Pershad vs. The Administrator for Union Territory of Delhi or Ajoy Kumar Banerjee vs. Union of India (1984), the Court had recognised that it is impossible for the legislature to draft laws with small details to deal with the increasing complications of governance in political democracy and therefore, the legislature can lay down broad policies and guidelines and let the executives manage the details through State agencies and instrumentalities. The delegation of power on such authorities cannot be claimed as an excessive delegation of legislative power.
In the case of Jyoti Pershad vs. The Administrator for the Union Territory of Delhi, it was argued that the power vested in the state authority to withhold eviction under orders passed through the Slum Areas (Improvement and Clearance) Act, 1956 is ultra vires to the constitution as it is a matter of excessive delegation. Based on this argument, the court observed that in modern situations, a wide range of complications arise seeking possible solutions, and therefore it is impossible for the legislature to foresee every detail and possibility while drafting legislation; therefore, the legislature finds it necessary to leave the details to the authorities. The authorities created by the legislature thus have ample discretion, limited by the guidelines provided by the Act. This is the primary principle behind delegated legislation. As long as the legislature creates a piece of legislation with enough substance to guide the authorities and make the objects and purposes of the legislation clear, it is immaterial if discretion is left to the authorities and the legislation is skeletal. The skeletal nature of legislation, which has enough substance to guide the authorities created by it, cannot be a ground for claiming excessive delegation or unrealised discretion being vested in the authorities. If discretion is conferred in a legal manner, the fact that the legislature could have gone into the details while drafting the legislation cannot be a ground for invalidating the enactment.
By referring to the case of Maharashtra State Board of SHSE vs. Paritosh Bhupeshkumar Sheth (1984), the Apex Court emphasised upon its observation that as long as the body tasked with drafting rules and regulations function within the scope of the authority bestowed upon it and as long as the rules and regulations have a rational nexus or connection with the object and the purpose of the legislation, the court need not deal with the wisdom or efficaciousness of the rules and regulations. It is within the powers of the legislature and its authorities to decide the way in which they seek to implement particular legislation and what measures they can take, either substantial or procedural, to fulfil the objectives of the legislation. The court cannot examine the merits of the policy as its supervision is only limited to the question of the right use of rule-making power conferred by the law on the delegates of the statute.
In the case of Ajoy Kumar Banerjee vs. Union of India (1984), the Apex Court held that the growth of the legislative power of the executive was a mark of evolution and progress. The theory of laissez-faire has become ancient and currently, the large powers are being yielded by the State to improve the social and economic well-being of people. The legislatures, due to their own limitations, cannot go into the details of all the matters while dealing with the creation of legislation. Therefore, the practice of bestowing the power of creating subordinate legislation to the executive is a necessary practice for a welfare state in modern times.
On the topic of delegated legislation, the Apex Court observed that the legislature should lay down the guidelines and policy principles and then the authority tasked with implementation can be entrusted with the task of creating subordinate legislation. The courts simply cannot interfere with the extent of delegation that is provided by the legislature to its authority in any particular case. The simple existence of guidelines is enough.
Moving ahead, the Supreme Court referred to the case of Kishan Prakash Sharma vs. Union of India (2001), wherein the entire principle of delegated legislation was summarised as follows: In the Indian context, legislatures have excessive law-making subjects and due to their own limitations, they cannot delegate essential legislative functions like determining or choosing a legislative policy or formally enacting a policy. The legislature also cannot delegate canalised and uncontrolled power. Therefore, it is important for the legislature to set its own limits and set limits on the power it confers upon the delegates by stating the policy and object of the law clearly and by creating standards of guidance for the execution of the law. The delegation of such power is only valid when there is adequate legislative policy and guidelines to guide the delegates on the true purpose and object of the legislation so that it is implemented in the way it was intended and the power conferred doesn’t go beyond the limits of the permissible extent. When the law-making power is entrusted to the Parliament and State Legislature through the Constitution, it implicitly prevents them from doing away with the responsibilities and imposing them on some other authority. Therefore, a compromise that is struck between the Parliament and the legislature is that the Parliament cannot work out the details of various requirements of legislation and therefore that area is left to be filled by the delegatee. Therefore, the question of whether any legislation suffers from excessive delegation must be ascertained by taking into consideration the scheme, the provisions of the preamble, the facts and circumstances of the time in which it was enacted, the historical background of the legislation, and the complexity of the problems it seeks to address. This allows for a liberal construction of the statute and reiterates the opinion that even if a statute is skeletal, it simply needs to have essential guidelines, objects, and policy measures to guide the authorities upon whom the delegated power is vested. This liberal approach is a testament to the balance of power and the compromise between the constitution and the parliament, essential for the smooth functioning of society and the well-being of the people.
Referring to the case Union of India vs. Azadi Bachao Andolan (2003), the Supreme Court reiterated its own decision on the case, which stated that: while ascertaining whether a particular delegated legislation is made in excess of the power supplied to it, it has to be ascertained through the purpose and object of the Act conferring such power and not only through the assessment of the impugned provision.
By referring to all these previously decided cases and precedents, the Supreme Court reached the observation that when the constitutionality of a legislative provision is challenged on the ground of excessive delegation, it is important for the courts to look into the policy which forms the legislation. To examine the policy, the court must look into the preamble of the legislation and the statements of object. It is not the duty of the court to sit over the wisdom of the legislature and nullify a provision that has been enacted through the rule-making power delegated to an authority
Based on this reasoning, it was concluded that the policy which laid out under the 1976 Act could be ascertained from its preamble. The policy behind the Act was the development of the city of Bangalore and the adjacent areas. The Town Planning Act, 1976, was enacted with the view of regulating the planning of growth, land use, and execution of town planning schemes in the whole of the state, including the city of Bangalore. Through Section 67 of the Act and the insertion of Section 81-B, the BDA was made the local authority for the city of Bangalore and was provided adequate jurisdiction over the area. It was empowered to exercise all powers and perform its functions and duties as a Local Planning Authority defined under the Town Planning Act.
The object that guided the formation of the legislation was the creation of favourable conditions for the planning and replanning of the urban and rural regions of the state so as to make all the civic and public amenities accessible to the propeller and to counter the uncontrolled land development. It also dealt with the creation of town planning schemes and the execution of them. Based on the brief reading of all the provisions of the Act, it is clear that the object of the Act is to ensure the planned development of the Bangalore Metropolitan Area through BDA. BDA has the power to make developmental schemes and incur the burden of the expenditures from the beneficiaries of the scheme.
Based on the notifications, it is clear that hundreds of villages in the vicinity of the Bangalore Metropolitan Area were merged into it and BDA therefore was bound to take care of the civic amenities for those areas too. It is impossible for BDA to alone handle the task and therefore the state government, BDA, and other instrumentalities like the BWSSB had to augment their resources to manage the supply of water, electricity, and roads. BDA had to contribute to the funds and that was clear from the state directions. With the addition of Section 32(5A), BDA received the power of calling upon applicants who wished to form new extensions or layouts or private streets to pay a certain amount so as to meet the portion of expenditure incurred in providing civic amenities.
The preamble, object, and provision of the legislation provided enough guidance to the BDA to exercise its power under Section 32(5A) therefore it is not a matter of excessive delegation.
The next question that the Supreme Court dealt with is whether the demand for charges under the Cauvery Scheme amounts to tax and, therefore, is ultra vires of Article 265. In this regard, the debate is whether a specific levy can be treated as a “fee” or “tax” and in the absence of any direct evidence, quid pro quo can the levy be called a tax?
The court first referred to the case of Kewal Krishan Puri vs. State of Punjab (1980), wherein, the constitutional bench of the Apex Court had dealt with the question and had given certain principles for determination. The amount of fee realised must be given for the purpose of services rendered to the licensees. The services must be in relation to transactions. While rendering services, it is not necessary to confer the entire benefit on the licensees but simply certain special benefits are enough to levy an amount of contribution. The essence of this judgement was diluted by the decision of Southern Pharmaceuticals and Chemicals vs. State of Kerala (1981), wherein the Apex Court dealt with the distinction between tax and fees and stated that fees are amounts paid for a certain privilege and they are not an obligation. The payment of fees is voluntary. The primary object of tax is to raise funds for supporting the government or for any public purpose while a fee is charged for any privilege or benefit or service rendered.
Under the 1976 Act, the BDA was obligated to provide various types of amenities to the people of Bangalore metropolitan area, which included the allottees of the sites in the layouts prepared by the house-building societies. Even though they did not directly benefit from it, some indirect benefits still arose from the work of BDA for the allottees. They also benefited from the cauvery scheme. Therefore, the charges levied by the BDA under Section 32(5A) couldn’t be termed taxes and were therefore held to be constitutional.
On the final question of whether the burden imposed is in excess of the actual expenditure incurred, the Apex Court stated that the High Court had not assigned any grounds for declaring the levy as unconstitutional, and therefore, the Apex Court didn’t feel it necessary for them to take a decision on this issue. In the views of the Apex Court, the ends of justice were secured by asking the state government to take appropriate action on this matter.
Ultimately, as the end result, the appeals were allowed and the impugned order of the High Court was set aside through the analysis of the legal issues involved, the principles laid down and the precedent set in the previous cases.

Legal aspects involved

This case deals with the following legal principles and doctrines:

Doctrine of Excessive Delegation under Administrative Law

In the sphere of administrative function, excessive delegation refers to the phenomenon of a legislative authority conferring broad decision-making powers to any administrative agency or state instrumentalities without providing any clear guidelines as to the use of such power. The lack of necessary checks and balances on the use of such delegated power is also termed excessive delegation. Vague legislative mandates that fail to provide detailed guidance or objective policy of the law to an administrative agency while delegating power is an important form of excessive delegation. In the absence of clear directives, the agencies often interpret and apply the law in ways that seem counterproductive to the original intent of the legislation. This leads to various ambiguities and uncertainty in the exercise of the power so conferred. Most times this also leads to the administrative authority making unreasonable and arbitrary decisions that fall outside the intended scope of their authority. At times, the legislature may fail to provide clear policy directions to administrative agencies while delegating power and that leads to deviation from the original legislative intent. The administrative agencies in such situations form their own interpretations of the legislative policy, which contradicts the original intended policy and leads to many ambiguities. While such situations exist, the legislature can prevent them by providing a clear policy directive, statements and objects, purpose and intent behind creating the legislation to provide a sufficient guideline to the administrative authorities.

Test for excessive delegation

If any form of delegation of power to an administrative authority is challenged to be excessive, the court must look into the following factors:

If the legislature provides adequate policy directive, guidance, and statement of object and purpose of the legislation to the administrative authority.
Even if the legislation is skeletal and lacks a lot of detail, can the purpose and policy of the legislation be derived from its provisions, preamble, and guidelines?
The court must always presume the validity of the legislation unless proven otherwise. The court must take into consideration the time and circumstances in which the law was created and which problems it sought to address while deciding on the nature of delegation.

Critical analysis of the judgement

The judgement is landmark in its own right as it is one of the primary pieces of analysis provided by the Apex Court on the validity of delegated legislation and the concept of delegation of power. Excessive delegation is a defence which has been taken multiple times through writ petitions to avoid executive action but there wasn’t a standardised test to ascertain whether a piece of legislation delegated excessive authority to an administrative agency or not.

Through a series of cases, including the instant matter, the Apex Court laid down important measures to guide the courts to deal with cases of such nature. The acknowledgement of the fact that the legislature is not an all knowing body and that delegation of power is necessary to fulfil the true intent of the policy behind the legislation is what makes the judgement of the case significant towards the discourse of delegation of power. The test of excessive delegation is truly an efficient check and balance system to prevent arbitrariness in executive and administrative action.

Conclusion

The instant case is a reflection of the separation of power based on skills and expertise and how such power must be controlled through efficient checks and balances to prevent arbitrariness in governance. Arbitrariness is the death of democracy and governance, and therefore essential rulings and precedents on the doctrine of excessive delegation are important to ensure that the functioning of governance mechanisms is smooth, free from arbitrariness, and reasonable.

Frequently asked questions

What is the presumption regarding the validity of the legislation?

Legislation is always presumed to be valid unless proven otherwise. This doctrine stems from the assumption that the legislature that created the legislation is wise enough to understand the specific problems of a class and create laws to counter such problems.

Can an individual be treated as a class for the application of a law?

Yes. If such a special situation arises and a law is created that treats an individual as a separate class due to special circumstances attached to him, he can be treated as a separate class, and the differentiation would be reasonable.

What is delegated legislation?

Since the legislature cannot be expected to legislate on all subject matters due to a lack of expertise in each and every matter, the legislature at times provides law-making power to agencies under it. The legislation created by the agencies using such law-making power is termed delegated legislation. They are often in the nature of regulations and by-laws.

What happens when rule-making power is delegated in excess?

This situation is referred to as excessive delegation and it is held to be unconstitutional. Any form of delegation that provides inauthentic and uncontrolled power to an agency is unconstitutional in nature and therefore ultra vires to the Constitution.

Which powers cannot be delegated?

The legislature cannot delegate its essential legislative functions to an agency under it. These core functions of the legislature must be performed by its own wisdom. These functions are the enactment of laws, establishing legislative policies, drafting important and significant laws, declaring policies, and setting standards.

References

Section 57 of Trade Marks Act, 1999

By

Rachit Garg

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August 31, 2024

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The article was written by Satyanshu Kumari. This article deals with Section 57 of the Trade mark Act, 1999, which provides the provision for the rectification of the trade mark in India. This article also highlights the importance of preventing trade mark cancellation and provides precautions for rectification. Further in this article, the interplay between Sections 47, 57 and 124 has also been discussed in detail.

Table of Contents

Introduction

A trade mark is a brand or name associated with a service or product of an individual or company. It is a unique mark through which a consumer identifies a product or service of the company or an individual. It differentiates the product or service provided by the individual or a company. In India, trade marks are regulated under the Trade marks Act, 1999 (hereinafter referred to as the “Act”) and Trade mark Rules, 2017 (hereinafter referred to as the “Rules”). Trade mark as defined under Section 2(1)(m) of the Act means a mark that includes a brand, device, heading, ticket, label, name, word, signal, letter, the shape of goods, numeral, packaging or combination of colour or any such combination.

A trade mark can be a visual symbol or logo used to indicate the source of the products or goods. The symbol or logo can be a word, signature, number, geometrical figure, monogram, a combination of words and numerals, a combination of colours with a logo, or it can even be a sound mark.

With trade marks, companies can set themselves apart from their rivals and differentiate their goods and services. In the eyes of the law, trade marks also protect a company’s identity from trade mark violation and stop unauthorised use by outside parties.

Section 47 and Section 57 of the Trade marks Act, 1999, provide for the cancellation or removal of trade mark from the Registrar of Trade marks. Once a trade mark is registered, the trade mark receives protection for 10 years, after which it must be renewed. This period begins from the date of application or the last renewal of registration, whichever is applicable.

In this article, we will discuss and learn more about Section 57 of the Act and its interplay with Section 47 and Section 124 of the Act with relevant case laws to support the same.

Meaning of trade mark rectification

Trade mark rectification can be defined as ‘rectifying the error or omission made in the register after registration of trade marks’. A trade mark could still be on the trade mark register even after its expiration or after it was wrongly registered. In such cases, correction may be necessary and that is why the Trade mark Act contains provisions for correcting registered trade marks.

Chapter 7 speaks about the provision for rectification. According to Section 57 of this Act, ‘any individual who is connected with the Trade mark Registration or aggrieved by it can apply for rectification.’ Though the provisions related to rectification do not support every situation, but sometimes it leads to the cancellation of the trade mark registration. Thus, it should be done with caution.

Grounds for rectification of trade mark registration

Section 57 of the Act provides grounds under which the rectification of the register is being made:

Clause (1) and clause (2) of Section 57 of the Act provide that the ‘tribunal may take such actions for cancellation or variation of the trade mark registration on the grounds of any contravention or failure to observe a condition when any person aggrieved by any entry in the register of trade marks makes an application to the Appellant Board or the Registrar’. A party who feels wronged by an entry recorded in the register has a statutory right to request correction under Section 57. The said right is circumscribed by certain requirements, such as:

Contravention or failure to observe the requirement listed in the register pertaining to the trade mark registration. [Section 57(1)].
The register has to suffer in such cases where there is the absence or omission of an entry like a disclaimer, a condition or an imitation of the registered mark; [Section 57(2)].
The registration was gained by fraud or false representation of facts; the registered mark was identical to an existing registered mark; or there is another reason why the inclusion in the register is made without sufficient justification. [Section 57(2)].
Error or defect in any entry made in the register [Section 57(2)].
The entered mark was wrongly remaining on the register, i.e., it is contrary to some of the provisions of the Act or is likely to confuse the public and trade; for example, the mark is in contravention of Section 9 and Section 11 of the Act. [Section 57(2)].
The renewal fee has yet to be paid.

Clause (4) of Section 57 states that following notification and an opportunity for the parties involved to be heard, the tribunal, or the registrar or the Appellant Board, may either cancel, vary, make, or remove the entry in the question.
Section 31(1) of the Act provides that the original registration of the trade mark shall be prime facie evidence of the validity of the mark in all the legal proceedings relating to a trade mark, including in an application under Section 57.
An application for rectification of a registered trade mark is required to be filed before the same Trade Mark Registry where the application for its registration was filed. The procedure before the Registrar is prescribed under Rules 97 to 100 of the Trade Mark Rules, 2002. In the event of a collective mark or certificate mark, an application pursuant to Section 57 must be submitted in duplicate on Form TM-O. A statement of the case outlining the facts supporting the application, the relief sought, and the nature of the applicant’s interest must be submitted with the application.
Although the Registrar of Trade marks has the authority to hear rectification petitions against registered trade marks, the Intellectual Property Appellate Board (hereinafter referred to as the “IPAB”) alone has the authority to hear applications for rectification of such trade marks in cases where an infringement suit is pending before the civil court and the defendants in the suit are contesting the validity of the plaintiff’s trade mark.

Note: The Intellectual Property Appellant Board has been abolished under the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance 2021 (hereinafter referred to as “Ordinance”) issued by the Government of India on 4th April 2021. Now the functions of the IPAB and various other tribunals that have been abolished under the Ordinance have been assigned to the country’s commercial courts and high courts.

Preventing the trade mark rectification or cancellation in India

The following steps should be followed in order to prevent the rectification or cancellation of trade marks in India:

Renew the marks from time to time.
Preserve the distinctive character of the mark and avoid it from becoming deceptive.
Not keeping the mark unused for a period exceeding five years or three months from the date of registration of the mark.

Precautions for rectification

To avoid the need for rectification of the trade mark register, some precautions can be taken, the steps of which are given as follows:

The trade mark must not be kept unused for a period exceeding five years and three months from the date of registration of the mark.
The proprietor of the trade mark must take immediate legal action if he finds any kind of infringement or unauthorised usage of his trade mark or any mark similar to his trade mark.
The trade mark must be renewed on time and in a prescribed manner.
The proprietor of the trade mark should prevent their mark from losing its distinctive nature or becoming generic as a household name.

Clause-wise explanation of Section 57 of Trade Marks Act, 1999

Section 57(1)

Under this sub-section on the application, if made in the prescribed manner either to the high court or the registrar by any aggrieved person, the registrar or the high court as the case may be may make such order as it thinks fit for cancelling or varying the registration of the trade mark on the ground of any contraventions, failure to observe a condition entered on the register in relation thereto.

Section 57(2)

Under this subsection, if any person who is aggrieved by the absence or omission from the register during any entry of their trade mark, or by any entry made in the register without having sufficient cause, or by any entry wrongly remaining on the register, or by any error or defect in any entry in the registry, may apply in the prescribed manner to the Appellant Board or the registrar, and the tribunal may make such order for making, expunging or varying the entry as it may think fit.

Section 57(3)

Under this sub-section, the registrar or the high court may, as the case may be, decide any question that may be important in connection with the rectification of the register.

Section 57(4)

Under this sub-section, the registrar or the high court may give notice in the prescribed manner to the parties involved after giving them an opportunity to be heard and may make the order according to sub-sections (1) or (2).

Section 57(5)

Under this sub-section, any high court order that follows the register’s correction will specify how notification of the correction should be delivered to the Registrar, who will then correct the register under the instructions after receiving them.

Procedure of rectification

Given below is the step-wise detailed procedure for rectification of the trade mark register that one may need to follow to do the same:

Drafting of an application

The first step for rectification is that the applicant must draft an application and put all the necessary information correctly and accordingly. The document should be properly drafted since any mistake in it may lead to rejection of the application.

Form filling

The relevant applicant must prepare the application and then submit it to the trade mark registrar along with the fees required. The applicant cannot proceed further before applying for rectification of the relevant trade mark without completing this step.

Documents submission

The necessary supporting documents need to be submitted to either the registrar or IPAB in proper form with all supporting documents after all the requisition information is provided on the form. For rectification, address, PAN or identity verifications must be certified alongside relevant documents.

Documents verification

All of the documents will be checked during this phase once the applicant has submitted them. The applicant can proceed to the next stage if the verification is completed and the relevant authorities, such as the registrar or IPAB, are satisfied. The application will be rejected if the registrar or IPAB are not satisfied with the supporting documentation that the applicant submitted.

Final order

Finally, the Registrar or the Appellant Court issues an order as they see fit, i.e., to amend, add, change or substitute the trade mark register, following a hearing from both parties and correcting the evidence.

Consequences of trade mark rectification on the trade mark

Even though due procedure and all relevant evidence are taken into account when concluding the trade mark, a registered trade mark may be revoked by an application filed by the party that feels wrong. Assume that a trade mark has not been used in the past five years or has not been honestly used in the market for at least three years; in that case, the trade mark register may remove it. It is also noted that any trade mark that is registered must be used appropriately to preserve its reputation in the marketplace. In the event that none of the aforementioned requirements are met, the trade mark will be cancelled or become inactive.

Interplay between Sections 47, 57 and 124 of Trade Marks Act, 1999

Section 47, Section 57 and Section 124 of the Act are intertwined and deal with the cancellation or removal of a trade mark from the trade mark registry.

Section 47 of the Act deals with the grounds for cancellation of a registered trade mark. According to this Section, any interested person can file a petition to cancel a registered trade mark because the trade mark was registered without sufficient cause; it is not distinctive, it has become generic, or it is likely to confuse, among other grounds.

In the case of Eurobond Industries Pvt. Limited vs. Euro Panel Products Private Limited (2018), it was held that the non-use of any trade mark by the proprietor after its registration does not by itself render the mark incorrect but gives a right to the aggrieved person to file an application for rectification of the register by removal of the mark.

Subsequently, Section 57 of the Act deals with the ‘rectifying the register’. This section empowers the Registrar of Trade mark to make corrections or amendments to the trade mark register if it appears to him that there has been an error or omission in the register or if it is necessary to rectify the register for any other reasons.

Section 124 of the Act deals with the effect of removal or cancellation of a trade mark from the register. According to this section, if the trade mark is removed or cancelled from the register, it shall be deemed never to have been registered. The cancellation or removal of a trade mark from the register shall be effective from the date of the application for the cancellation or removal.

Consequently, a trade mark that is withdrawn or revoked from the register will be considered to have never been registered because of the intriguing interaction between the aforementioned clauses. The primary objective of Section 47 and Section 57 to Section 124 is to avoid the multiplicity of the proceeding, which we will find out subsequently with the help of different case laws.

Reciprocity between these sections

In the recent judgment by the Delhi High Court in the case of Anubhav Jain vs. Satish Kumar Jain (2023), the Court held that “the rights under Section 57 of the Act to seek rectification of the register are independent of the rights under Section 124 that allows seeking a stay over the infringement proceedings when the validity of the trade mark is raised as a defence.”

This interplay was ‘the point of a previous controversy that the Supreme Court addressed in the case of Patel Field Marshal Agencies vs. P.M. Diesels Ltd. (2017). In addressing the petition under Section 57 and Section 124 of the Act, the Supreme Court resolved the dispute concerning the relationship between Section 47 and Section 57, which mentions about right to request the cancellation of a registered mark or rectification of the register in relation to the subject mark’s invalidity as a defence in a Section 124 infringement suit. But neither the plain language of the Patel Field Marshal case nor the precedent set by the Delhi High Court’s earlier ruling aligned with the interpretation offered in the Anubhav Jain case.

The right to request rectification of a mark under Section 47 or Section 57 is subject to Section 124 of the Act, while infringement litigation pertaining to such a mark is pending adjudication, as the Supreme Court has made quite clear.

The Supreme Court made it mandatory for the party to not only raise a plea of invalidity in the suit but also ensure that the civil courts frame the issue before filing the rectification petition. Furthermore, upon abandoning such a plea, Section 124(3) shall apply, and the ‘right to seek rectification shall be lost forever.

Though this judgement, the Supreme Court has overruled the dictum of the judgment on this point, i.e., B. Mohamed Yousuff vs. Prabha Singh Jaswant Singh (2006) and Data Infosys Ltd. vs. Infosys Technologies Ltd. (2012), which held that the right to seek rectification under Section 47 and Section 57 of the Act does not stand extinguished if, in an infringement petition under Section 47 or Section 57, it is filed after the expiry of the period given under Section 124(2) or (3) of the Act.

Furthermore, both Section 47 and Section 57 of the Act list the circumstances that may permit an ‘aggrieved person’ to file a rectification petition against a trade mark recorded on the register, although the underlying connotation that the phrase carries with it in each of the two provisions differ, as affirmed by the Supreme Court in Hardie Trading Ltd. & Anr. vs. Addisons Paint & Chemicals Ltd. (1993).

Relevant and important judgements

Patel Field Marshal Agencies vs. PM Diesels Ltd. (2017)

Facts of the case

In this case, the respondent was the actual proprietor of the three registered trade marks, which included and had the common phrase “Field Marshal” in the trade marks. The respondent filed an appeal in 1989 for the infringement of the trade mark and the issue came up before the Delhi High Court. The appeal mostly constituted three claims:

The respondent company claimed an injunction order from the Delhi High Court permanently regarding the prevention of the usage of the phrase “Field Marshal” by P.M. Diesels Ltd.
The appeal also claimed the account of profits that P.M. Diesels Ltd. incurred while using their trade mark.
The last claim that was put forward by the Patel Field Marshal Agencies was to order an interlocutory injunction.

The arguments put forward by the respondents scrutinise the legislative validity of the trade mark laws that were questioned in the present case. When the appeal was pending before the Delhi High Court, it was also appealed before the Gujarat High Court for the proceedings.

Issued raised in the case

Whether the appeal filed an infringement suit?
Whether there is an available remedy under Section 111 read with Section 107 of the Trade and Merchandise Marks Act, 1958 for the validity of the trade mark addressed in this suit?
Whether under Section 46 and Section 56 of the Trade and Merchandise Marks Act, 1958, the party will be entitled to seek redressal.

Verdict of the Court

The court held in the present case that ‘all questions regarding the validity of a trade mark must be resolved by the registrar or the High Court, not the Civil Court. Their decisions will be binding on the Civil Court. If the issue of invalidity arises outside of a lawsuit, the statutory authority alone has the power to address it. However, if a suit is ongoing, the statutory authority can only step in if the Civil Court finds the plea of invalidity to be prima facie valid.

The Supreme Court has made it clear that the ‘right to seek rectification of a mark under Section 47 and Section 57 is subject to Section 124 of the Act while an infringement suit relevant to that mark is pending adjudication’. The Civil Court must frame an issue before the party files a rectification petition, in addition to raising a plea of invalidity in the litigation, as mandated by the Court.

Additionally, if a party abandons a plea of this kind and does not pursue it further, even after the court grants an extension of time in accordance with the Act, Section 124(3) of the Act will effect, and the ability to request correction will be permanently deleted.

Anubhav Jain vs. Satish Kumar & Anr. (2023)

Facts of the case

In this case, the plaintiff instituted a petition under Section 57 of the Act for the cancellation or rectification of the register. Nevertheless, the current petition does not adhere to the procedure outlined in Section 124 of the Act; the defendant disputed its maintainability. It should be mentioned that the defendants in this instance did not bring up the issue of invalidity in the trial court.

Issued raised in this case

Whether Section 47 and Section 57 will comply with Section 123 of the Act and whether the rights under Section 124 in derogation of the rights available under Section 57?
Whether the party can go for recourse under Section 47 and Section 57 of the Act when Section 124 is not raised in a suit?

Verdict of the court

The Delhi High Court held in this case that the right under Section 57 for ‘cancellation of a mark and rectification of the register remains available’. However, ‘if an infringement suit that has been filed by either of the parties and one of them against it pleads invalidity of the mark as a ground of defence to the suit, then the party filing the infringement suit would acquire an independent right under Section 124(2) of the Act to move the IPAB for rectification of the register’.

Thus, in derogation of Section 57, Section 124 must be seen as an ‘additional relief’ rather than as an exclusive remedy. Consequently, if an action raises the defence of invalidity, recourse may be sought under Section 47 and Section 57, as well as Section 124 of the Act.

Conclusion

The Trade mark Act, 1999, emphasies that “granting and registering trade marks should be done with fairness, equity, and bona fide intention.” The Registrar may take necessary measures, such as revoking such trade marks, if they discover any genuine attempts to deny others their legitimate trade mark registrations.

It is vital to take reasonable care to abide by trade mark procedures and file all required paperwork on time and precisely to avoid a great deal of litigation in the trade mark domain. It is also crucial for a trade mark to be renewed on time to prevent being removed from the registry. Businesses may protect their intellectual property rights and confidently negotiate the trade mark landscape by following the laws pertaining to trade marks.

Frequently Asked Questions (FAQs)

What is the validity period of the trade mark?

The term of validity for all registered trade marks is 10 years from the date of application. A trade mark can be simply renewed at the end of its validity by paying the government registration cost.

Is it possible to renew a trade mark registration in India after three years?

In India, a trade mark registration had to be renewed every 10 years, or else it risked being struck from the register. A request for renewal may be submitted at any time during the year before the expiration date, and there is a grace period of one year following the expiration date, subject to the registrar’s discretion upon the presentation of a good-faith reason for the request’s late filing.

References

https://www.livelaw.in/law-firms/law-firm-articles-/anubhav-jain-case-trade marks-act-1999-ipr-field-marshal-case-infringement-delhi-high-court-230879
https://cleartax.in/s/trade mark
https://www.indiafilings.com/learn/grounds-for-rectification-of-trade mark/
B.L. Wadehra, “Law Related to Intellectual Property” (5th Edition, 2016)

Plaint format under CPC

By

Ayush Verma

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August 31, 2024

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This article was written by Rohit Raj and has been further updated by Gauri Gupta. It provides for a detailed analysis of the various provisions under the Code of Civil Procedure, 1908, dealing with plaint. It further highlights the necessary contents of the plaint and provides for a widely followed format for the plaint. Furthermore, it dives into the institution of a suit, the particular elements of a plaint, the documents that are to be attached to the plaint, and the grounds for rejection of the plaint. The discussion further provides for the latest legal developments on the topic by analysing the landmark judgements. The sample format of the plaint is provided at the end of the article.

Table of Contents

Introduction

The Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has served as the foundation of civil litigation in India and has been a guiding light for how civil suits are filed, managed and adjudicated. One of the key elements of the CPC is the concept of a plaint, which is a legal document that initiates a suit. It is the first step that helps the aggrieved party bring an action before the court seeking justice. It is the plaint that outlines the case of the plaintiff and provides for the remedies sought by the aggrieved party. Have you ever wondered what the significance of a plaint is and why it is an essential element of legal proceedings? The article dives into the concept of plaint as outlined and elaborated in the CPC and deals with the essential elements of the same one by one. Furthermore, it highlights the common errors that are made while drafting a plaint, thus offering invaluable insights that must be kept in mind while drafting a plaint.

A well drafted plaint is extremely important, as it forms the backbone of a civil proceeding. Therefore, it is crucial that it complies with the formal requirements and is devoid of any errors that can have adverse effects.

The article provides for the historical development of the CPC along with its amendment to ensure that the objectives of the legislation are upheld. Furthermore, the article explores several key components of a civil suit, thus laying down the rules of drafting, admitting, and rejecting the plaint.

Furthermore, it offers a detailed analysis of the relevant laws and procedures, along with an analysis of the relevant landmark judgements, thus ensuring that the article serves as a valuable guide to the critical role played by plaint in litigation.

Brief background of the Code of Civil Procedure

The CPC is a procedural law and one of the few pre-constitutional laws in India. It was originally drafted by Sir Henry Erle Richard and is based on the Judicature Acts. Before the CPC of 1908 was enacted, the CPC of 1882 was widely prevalent in the Indian subcontinent. It consisted of 652 sections and 49 chapters. However, the current legislation follows a different model, consisting of several orders and sections that are divided into 11 parts, 158 sections and 51 orders.

CPC is an adjective law that provides not only for the definition and amendments related to civil law but also consolidates the law of the procedure that is to be followed in a civil suit. The main objective of the legislation is to facilitate justice and deal with the administration of civil proceedings in India.

The CPC was revamped by the 1976 amendment, which had the following objectives:

The litigants have the right to a fair trial, and such trials must be conducted in accordance with the principles of natural justice.
There should not be any undue delay in the proceedings.
The procedure must be simplified to ensure that the poor and vulnerable sections of society can engage in advocates for the protection of their rights.

Following this, another major amendment to the CPC took place in 2002, wherein the time for filing the written statement was restricted to ninety days and certain restrictions were imposed on the number of adjournments.

In simpler terms, the CPC was enacted with the purpose of regulating civil suits and the parties appearing in those proceedings until the decree is executed. Furthermore, the legislation is crucial for implementing and enforcing the substantive law.

Plaint

Plaint is a legal document consisting of the pleadings of the plaintiff. It is a document that initiates civil proceedings in a civil court. The term ‘plaint’ is often used synonymously with the term ‘suit’, and it is crucial to note that both terms have significant differences. The term ‘plaint’ is the document that initiates the proceedings in court, and the term ‘suit’ refers to all the proceedings that take place from the day of submission of plaint till the judgement is rendered by the court.

It is through the plaint that the plaintiff narrates or describes the cause of action and related information, which is considered essential from the viewpoint of the suit.

A plaint consists of the following elements:

Cause of action refers to the legal right of the plaintiff and the violation of that legal right by the defendant.
Important facts of the case that describe the cause of action.
Pleadings with respect to the jurisdiction of the court, the value of the suit, whether the suit is barred by limitation, and whether a suit on the same cause of action is pending before any other court.
The prayer seeking relief from the court.

Order VII of the CPC deals with Plaint. Order 7 Rule 1 provides for the particulars of the plaint. Rule 9 of the CPC deals with admission of plaint. Furthermore, Rules 10 to 10B are important for understanding the return of plaint, and Rule 11 is important for understanding the rejection of plaint. Furthermore, there are certain documents that are to be attached to the plaint and Order VII Rule 14 provides for the same.

How is a suit instituted

Section 26 of the CPC deals with the institution of the suit. It clearly stipulates that “every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.” Herein, the law clearly provides that a civil suit can be instituted by the presentation of a plaint. The term “in such other manner” means that a suit can also be instituted through an application or a petition before the appropriate court.

Particulars of a plaint

Many times, it is difficult to comprehend the specific components of a plaint. Therefore, it is important to refer to Order VII Rule 1 of the CPC, which provides for the necessary elements or the various particulars of the plaint. These are as follows:

The name of the court wherein the suit is to be instituted,
The name, description, and residence of the plaintiff,
The name, description, and residence of the defendant (as much as the plaintiff can ascertain),
A statement in case the plaintiff or defendant is a minor or a person of unsound mind,
The facts explaining the cause of action and the explanation of when it arose,
The facts that highlight the jurisdiction of the court where the suit is to be instituted,
The reliefs that the plaintiff is seeking,
When the plaintiff is ready to set off a portion of his claim, the plaint should contain the amount that has been allowed.
A statement with respect to the valuation of the subject matter of the suit in order to determine the appropriate jurisdiction of the court and the required court fee. Order VII Rule 2 provides that in a suit for the recovery of money, the plaint must specify the exact amount that is being claimed by the plaintiff.

Furthermore, it is crucial to note that, as per Order VI Rule 15, the plaint shall consist of a verification and an affidavit.

Documents to be attached with a plaint

Order VII Rule 14 of the CPC provides for the documents that are to be attached to the plaint. It clearly provides that all the documents that are relied upon by the plaintiff in his plaint are to be filed in original, along with the duplicates. Furthermore, the plaintiff is required to submit photocopies of all the documents relied upon by him to the defendant. It is important to note that this rule is not applicable to documents that are produced for cross- examining the plaintiff’s witness or documents that are used to refresh the memory of the witness as provided under Order VII Rule 14(4) of the CPC.

Rejection of plaint

Order VII Rule 11 of the CPC deals with the rejection of the plaint and the grounds on which a plaint may be rejected. The object behind the provision is to ensure that there is no unnecessary litigation.

The order provides for six grounds on which a plaint can be rejected. However, the caveat here is that the list is not exhaustive in nature, which implies that there are other grounds on which the court can reject the plaint of a plaintiff. The grounds stipulated under the rule are as follows:

Rule 11(a): The plaintiff has not disclosed the cause of action in the plaint. The fundamental requirement of any civil suit is the violation of a legal right, which establishes the cause of action of the plaintiff. If the same is missing in the plaint, such a plaint stands rejected. In the case of Snp Shipping Service Pvt. Ltd. vs. World Tanker Carrier Corporation (1999), the High Court of Bombay rejected the plaint of the plaintiff due to the non-disclosure of the cause of action in the plaint.
Rule 11(b): The suit is undervalued. It is important to ensure that the value of the suit is determined correctly for the purposes of attaching the court fees. If the plaintiff undervalues the suit, there is a reduction in court fees, which eventually leads to the rejection of the plaint.
Rule 11(c): The plaint is not sufficiently stamped. Court stamps play an important role in determining the value of the suit, and thus, an improperly stamped plaint can be rejected. Thus, it is crucial to ensure that, with the correct valuation of the suit, the plaint is stamped properly for the court to receive the appropriate value for processing the plaint and carrying on with the proceedings of the suit.
Rule 11(d): The plaint is barred by law. In simpler terms, a plaint can be rejected if the statements contained in it are prohibited by law. An example of the same is the bar of limitation.
Rule 11(e): The plaint is not filed in duplicate. As per Order IV Rule 1, a duplicate of the plaint is to be submitted when it is filed at the filing centre. If a duplicate of the plaint is not filed, it shall be rejected.
Rule 11(f): The plaintiff does not comply with Order VII Rule 9. If the plaintiff does not comply with Rule 9, which provides for the procedure of admitting plaint. It provides that the processing fee and copies of the plaint are to be filed within seven days of the day the summons were issued to the defendant. If the same is not done, the plaint shall be dismissed.

Rule 12 of Order VII provides that the court is to issue an order stating the grounds on which the plaint is rejected. It is crucial to note that the powers conferred under Order VII Rule 11 of the CPC can be exercised at any stage before the trial is concluded. Furthermore, an order under this provision can be challenged by way of an appeal under Section 96 of the CPC.

Landmark cases on rejection of plaint

Order VII Rule 11 of the CPC was enacted to defeat excessive litigation, defeat justice and cause unwarranted prejudice to the disputing parties. The provision provides the disputing parties with the option of pursuing a special remedy wherein the courts have the power to dismiss a suit without recording evidence and conducting a trial if they are satisfied that the plaint must be rejected in accordance with the grounds stipulated in the provision.

Dahiben vs. Arvindbhai Kalyanji Bhanusali (2019)

The Supreme Court in this case dealt with the issue revolving around an appeal that was filed against an order that allowed the rejection of the plaint. The Apex Court herein discussed the intent and purpose of Order VII Rule 11 and set forth certain principles relating to the same. These are as follows:

Object and Purpose of Order VII, Rule 11

While discussing the object and purpose of the provision, the Supreme Court relied on various precedents set forth by the court in this regard. It explained that if the cause of action of the plaintiff is not disclosed in the plaint or the suit is barred by limitation, the court would not go forward with the proceedings in the suit. In such cases, the court would put an end to litigation to ensure that the time of the court is not wasted. The court also relied on the landmark judgement of Azhar Hussain vs. Rajiv Gandhi (1986), wherein the Supreme Court of India explained that the sole purpose of conferring powers to the court under the provision is to ensure that meaningless and sham litigation is not permitted.

Determining test of rejection of plaint

The Supreme Court in this case explained that while courts are dealing with applications seeking the rejection of the plaint, it is crucial to determine whether the plaint discloses the cause of action by taking into consideration the averments in the plaint, which must be read along with the documents that are relied upon by the plaintiff. Furthermore, while the court is determining the same, it should disregard the pleadings that are relied upon by the defendant in his written statement. In simpler words, while determining the application for rejection of a plaint, the court must restrict itself to the plaint and should not dive into the facts as provided by the defendant in his written statement or application filed for the rejection of the plaint.

The same test was reiterated by the Supreme Court in the case of Liverpool and London S.P. and Association Ltd vs. M.V. Sea Success (2003), wherein the court explained that whether the plaint discloses the cause of action or not is essentially a question of fact. Whether the plaint contains the cause of action or not is determined by reading the plaint. In other words, the plaint must be construed as it is without adding or subtracting any words from it.

When the suit is barred by limitation

The Supreme Court relied on the case of Khatri Hotels Private Limited vs. Union of India (2011) while interpreting Articles 58 and 59 of the Limitation Act, 1963. The Supreme Court explained here that the period of limitation begins from the date when the right to sue accrues for the first time. In this case, the Supreme Court observed that the legislature, while enacting Article 58 of the Limitation Act, consciously made an effort to depart from the language provided under Article 120 of the Limitation Act. The latter is a residuary article for suits and provides for the omission of any kind of suit. As already explained, while dealing with the same, it was held that if a suit is based on multiple causes of action, the period of limitation will commence from the date when the right to sue accrues first under Article 58 of the Limitation Act.

Plaint manifestly without merit and vexatious

The Supreme Court observed that the courts are justified in exercising their power under Order VII Rule 11 of the CPC if a meaningful and careful reading of the plaint suggests that the plaint is manifestly vexatious and without any merit and thus does not disclose a cause of action.

Meenakshi Sundaram Chettiar vs. Venkatachalam Chettiar (1979)

The Supreme Court in this case held that Order VII Rule 11(b) provides that the court can dismiss the plaint if the relief requested by the plaintiff is not adequate in nature. In other words, the Supreme Court observed that when the relief requested in the plaint is undervalued, the court can reject the plaint. Thus, it is crucial for the plaintiff to ensure that the relief is properly valued and reasonable as per the facts and circumstances of the case.

Midnapore Zamindary Co. vs. Secretary of State (1938)

In this case, the plaintiff was supposed to submit his modified plaint along with stamped paper. However, the plaintiff failed to do so. In response to the same, the court observed that the plaintiff was not permitted to alter his plaint, and was thus subsequently dismissed by the court.

R.K. Roja vs. U.S. Rayudu & Anr (2016)

The Supreme Court in this case observed that an application under Order VII Rule 11 can be made at any time, but once the application is filed before the court, the same is to be disposed of before the commencement of the proceedings of the trial.

Sopan Sukhdeo Sable & Ors. vs. Assistant Charity Commissioner & Ors. (2004)

The Supreme Court of India in this case observed that when the suit is at the stage of recording evidence and an application under Order VII Rule 11 of the CPC is filed to delay the proceedings of the suit, such application shall be rejected. The court highlighted the real object behind Order VII Rule 11, which is to ensure that the courts are kept out of irresponsible lawsuits and do not waste their resources on litigating such frivolous cases. Rule 11 provides for an independent remedy that is made available to the defendant to challenge whether the suit is maintainable or not, irrespective of whether he has the right to contest it or not. The court further observed that the use of the word “shall” clearly implies that there is a duty on the court to perform its obligation of rejecting the plaint when the same is hit by infirmities as provided under Rule 11 of Order VII of the CPC.

Return of plaint

Order VII Rule 10, 10A and 10B of the CPC deal with the return of the plaint. The procedure for returning the plaint depends on the following two circumstances:

CIRCUMSTANCE 1: In this case, the defendant has appeared before the court, following which the court believes that the plaint should be returned due to the lack of jurisdiction of the court to try the suit. Herein, Order VII Rule 10A of the CPC mandates the procedure that needs to be followed while the plaint is to be returned:

The court has to inform the plaintiff through a registered post that the plaint is being returned due to the lack of jurisdiction of the court to try the proceeding.
The plaintiff is required to appear before the court either personally or through his counsel.
The plaintiff is required to inform the court where the plaintiff proposes to file the new plaint after the same is returned by the trial court.
The trial court may fix a date for the appearance of the plaintiff and the defendant before the competent court, wherein the new plaint is being filed.
At the request of the plaintiff, the court may serve notice to the defendant, thus requiring both the plaintiff and the defendant to appear before the competent court and informing them regarding the return of plaint.

CIRCUMSTANCE 2: In this case, the court conducts the initial hearing and identifies that the court has no jurisdiction to try the case, thus wanting to return the plaint. Order VII Rule 10(2) of the CPC in this case mandates the court to endorse the following particulars with the plaint while returning the same:

The date on which the plaint was initially presented.
The date on which the plaint is being returned.
The name of the party that presented the suit.
The reasons for returning the plaint.

The order passed by the concerned court under Order VII Rule 10 can be appealed against by the plaintiff, and such an appeal is maintainable under Order XLIII Rule 1(a) of the CPC. The provision deals with appeals against certain orders, particularly those under Section 104 of the CPC.

Landmark cases on return of plaint

Joginder Tuli vs. S. L. Bhatia (1996)

The Supreme Court of India in this case observed that once the plaint is returned under Order VII Rules 10, 10A and 10B, the suit must proceed in the proper court from the same stage from which it was transferred.

ONGC Ltd. vs. Modern Construction and Co. (2013)

In this case, the Supreme Court observed that if the trial court is of the opinion that it has no jurisdiction to try the suit, the same is to be returned in accordance with Order VII Rule 10 of the CPC. In such cases, the plaintiff is entitled to exclude the period during which the case was proceeding before the trial court and can also seek an adjustment of the court fees. However, after the plaint is presented before the court of competent jurisdiction, it is to be considered a fresh plaint, and the trial is to be conducted from the beginning, that is, de novo, even if it was concluded before the court that had no jurisdiction to try it.

M/S Meyer Apparel Ltd. vs. M/S Panchanan International Pvt. Ltd. (2020)

In this case, the Delhi High Court observed that an application made under Order VII Rule 10 of the CPC is disposed of after taking into consideration the plaint only. The written statement has no relevance in such cases. In other words, the defence of the defendant is not to be taken into consideration when returning the plaint under the said provision.

What are pleadings

Pleadings under the CPC refer to the formal written statements that are submitted by the parties involved in the civil suit. These documents provide for the claims of the plaintiff and the defendants, thus laying down the grounds for the legal proceedings. The primary objective of the pleadings is to ensure that the issues are clearly outlined, thus enabling the court to hold a fair and efficient trial.

The plaint and written statement together refer to the pleadings as provided under Order VI Rule 1 of the CPC. It is necessary for the pleadings to adhere to the specific rules to ensure that the judicial process is streamlined with minimal misunderstandings and to ensure that both parties have a fair opportunity to present their cases.

Rules of pleadings

The fundamental rules of pleadings are:

a) The facts are to be pleaded, not the law.

b) Only material facts must be included in the pleadings.

c) Pleadings should not consist of evidence, and

d) Facts should be concise with important details.

While drafting a plaint, it is necessary to keep in mind the following rules of pleadings, which are stipulated under Order VI Rule 2 of the CPC:

The pleadings must state material facts and not evidence. It shall consist of the statement on the basis of which the plaintiff is seeking a remedy in concise form but not the evidence on which the plaintiff is relying for his case to be proved as per Order VI Rule 2 of the CPC.
Every pleading must be divided into paragraphs, numbered accordingly, and contained in different and separate paragraphs as per Order VI Rule 2 of the CPC.
Dates, sums and numbers that are provided in the pleadings must be in figures as well as in words, as per Order VI Rule 2 of the CPC.
If there is any condition precedent that the plaintiff or defendant wants to contest, it must be distinctly specified in the pleading as per Rule 6 of Order VI of the CPC.
Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it is sufficient to allege the facts without putting forth the circumstances from which the same can be inferred as per Order VI Rule 10 of the CPC.
Whenever any contract or any relationship between any persons is implied from a series of letters or conversations or otherwise, it is sufficient to allege such a contract or fact, and there is no need to state the particular details as per Order VI Rule 12 of the CPC.
Every pleading must mandatorily be signed by the party and his counsel and verified at the foot by the party or parties. Furthermore, it should provide the date on which and the place at which it was signed as per Order VI Rules 14 and 15, respectively.

Amendment of pleadings

Rules 17 and 18 of Order VI of the CPC provide for the amendment of the pleadings. These provisions play a crucial role in achieving justice as they enable the parties to make necessary changes that highlight the issues in the dispute.

Amendment of Pleadings under Rule 17

As per Rule 17 of Order VI, either of the parties can amend their pleadings at any stage of the proceedings in a manner that is fair and just. The objective of the same is to determine the exact controversial questions between the parties in order to ensure that the pleadings reflect the issues at hand efficiently.

Failure to amend the pleadings under Rule 18

The consequences of the failure to amend the pleadings as ordered by the court are provided under Rule 18 of Order VI. It stipulates that if the parties fail to amend the pleadings within a specified time limit or within 14 days from the day the amendment was ordered, they will not be permitted to amend the pleadings after the expiration of the said period unless the period is extended by the court.

Common errors in drafting a plaint

A plaint is the foundation of a civil suit and requires precision, clarity, and adherence to the legal standards set by the courts. A well drafted plaint plays a crucial role in helping the court frame the issues and proceed with the case in an efficient manner. However, there are several common errors that are committed while drafting the plaint. It is important to identify and avoid these mistakes in order to strengthen the legal document and enhance the chances of a favourable outcome. These errors include:

Incomplete or incorrect cause of action:

Cause of action is the most crucial element of any plaint, and in case the plaintiff fails to state it or provide an incorrect or incomplete version of it, his plaint stands rejected. Therefore, it is essential to draft the cause of action in such a manner that it demonstrates the violation of the legal rights of the plaintiff by the defendant.

Improper Jurisdiction:

There are three types of jurisdiction: subject matter jurisdiction, territorial jurisdiction, and pecuniary jurisdiction. It is important that the correct jurisdiction is addressed in the plaint and the failure to do so can lead to the dismissal of the case.

Incorrect party information:

Another common error committed while drafting a plaint is incomplete or incorrect information about the parties involved. The descriptions of both the plaintiff and the defendant must be provided accurately, and if the information is missing or wrong, it can cause undue delay in the dispensation of justice and, in many cases, lead to the rejection of the plaint. Therefore, it is necessary that the details of the parties are correctly added as per the requirements of the CPC.

Vague or inconsistent facts:

It is essential that the plaint must present the facts of the case in a clear, concise, and coherent manner. However, most of the time, the facts presented in the plaint are either vague or inconsistent. The same has an adverse effect on the plaintiff’s case and can confuse the court. Therefore, it is important to ensure that the consistency and clarity of facts are maintained throughout the plaint, wherein every fact is precise and supported by necessary evidence, if any.

Failure to properly value the suit and pay the requisite court fee:

In civil suits, it is crucial to ensure that the suit is correctly valued, as it helps in determining the pecuniary jurisdiction of the court and the amount of fees that are payable. A mistake in calculating the court fees can cause unnecessary delays and the rejection of the plaint. Therefore, it is important to ensure that the value of the suit is determined properly and a sufficient court fee is paid.

Non-compliance with legal format

It is important for the plaint to conform to the legal standards, including the verification statement, affidavit, etc. Deviation from the format can result in objections from the court and cause unnecessary delay in the dispensation of justice.

To summarise, it is crucial to pay attention to these details to ensure clarity, correction and compliance with the legal procedure. This helps in avoiding common errors, thus ensuring smooth legal proceedings.

Format of a plaint under CPC

The pleadings of a plaintiff are contained in a plaint. Every plaint shall have an index page, which shall consist of the memo of the parties, the plaint and its accompanying affidavit, the list of documents, and a vakalatnama. These sets of documents are to be filed at the filing counter along with the duplicate.

The specimen of a plaint is as follows:

IN THE COURT OF CIVIL JUDGE, SAKET, DELHI

Suit No. __/2024

Date of institution of the suit:

IN THE MATTER OF:
A, s/o ___, r/o___ ……. Plaintiff

vs.

B, s/o____, r/o____ ………..Defendant

SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT

The above named plaintiff respectfully showeth:

That the plaintiff is a government servant in Delhi and that the defendant is a property dealer with his office in Saket, Delhi.
That the details of the property are as follows: It is situated to the east of the road, facing the wall of the colony in the south, and is number 125.
That the total value of the plot to be paid by the plaintiff to the defendant is Rs. 50,00,000 (fifty lakh rupees only), as agreed upon by both parties under the contract.
That the defendant has accepted a payment of Rs. 20,00,000 (twenty lakh rupees only) through cheque number ____ of the State Bank of India, Saket Branch. The payment was made at the time of the contract. Further, the plaintiff promised to pay the remaining amount of Rs. 30,00,000 (thirty lakhs only) to the defendant upon the completion of the registry of the plot.
That the defendant is refusing to accept the remaining payment. Subsequently, the plaintiff sent a legal notice to the defendant with respect to the same, and the defendant replied with an excuse to transfer the plot.
That the cause of action arose when the defendant refused to convey the said plot to the plaintiff as per the terms of the contract.
That the contract between the disputing parties was entered into in Delhi and the suit property is situated in Delhi. Hence, this court has the jurisdiction to try this matter.
That the value of the subject matter of the suit is Rs. 30,00,000 (thirty lakhs only), and the same has been attached as a court fee for the purpose of the jurisdiction of the court.
That the suit is well within the period of limitation.
That no suit on the same cause of action is instituted or pending before any other court.

PRAYER

The plaintiff therefore humbly prays for the following:

The court is pleased to order the defendant to perform his part of the contract by accepting the remaining payment and conveying the property to the plaintiff.
That the plaintiff be allowed to dispose of the balance consideration in court.
That the defendant be ordered to pay costs to the plaintiff.
That the defendant be ordered to pay to the plaintiff any other relief as the court may deem fit and proper.

Signature Signature

(Advocate) (Plaintiff)

Place:

Date:

VERIFICATION

I, “A”, the above named Plaintiff do solemnly declare that what is stated in Paras 1, 2, 3, 4, and 5 are true to my knowledge and the contents of remaining Paras 5,6,7,8,9 and 10 are stated on the basis of my information and belief and are according to legal advice from my advocate which I believe to be true.

Place: Signature

Date: (Plaintiff)

AFFIDAVIT

IN THE COURT OF CIVIL JUDGE, SAKET, DELHI

Suit No. __/ 2024

Date of institution of the suit:

IN THE MATTER OF:

A, s/o ___, r/o___ …….Plaintiff

vs.

B, s/o____, r/o____ ………..Defendant

AFFIDAVIT

I, “A”, do hereby solemnly affirm and declare as under:

That I am the deponent in the above mentioned suit, and I am well conversant with the facts of the case and thus, swear the contents of the affidavit.
That the contents of the plaint are true and correct and to the best of my knowledge. They are not repeated here for the sake of brevity.

Place: Signature

Date: (Deponent)

VERIFICATION

I, “A”, the above named plaintiff, do solemnly declare that what is stated in Paras 1, 2, 3, 4, and 5 are true to my knowledge and the contents of remaining Paras 5,6,7,8,9 and 10 are stated on the basis of my information and belief and are according to legal advice from my advocate which I believe to be true.

Place: Signature

Date: (Deponent)

Conclusion

A plaint is the foundation of a civil lawsuit and plays a crucial role in determining whether the suit is admissible before the court or not. The format of the plaint must be meticulously followed to provide the pleadings in a structured format. A well drafted plaint leaves a positive difference since it aids in understanding the cause of action, thus preventing the dismissal of the case.

In contemporary times where time and efficiency are of essence, understanding and adhering to the prescribed format is crucial, as a well drafted plaint is the first step towards achieving justice and protecting the rights of the disputing parties.

A well drafted plaint plays a crucial role in providing clear knowledge of the facts of the case and issues between the disputing parties. However, simplifying the regulations under the provisions of C.P.C. will make it easier for a layman to file the suit. Otherwise, filing a plaint with a lot of regulations is quite difficult. So, instead of scrapping the concept of plaints itself, the regulation under several provisions of the law should be reduced.

References

Ethical, legal, and social implications of genetic testing

By

Vanshika Kapoor

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August 30, 2024

0

This article has been written by Sarita Sah pursuing a Startup Generalist & Virtual Assistant Training Program from Skill Arbitrage.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

Genetic testing has revolutionised modern medical diagnostics with unrivalled accuracy in the determination and control of genetic pathologies. This ranges from diagnostic measures through advanced techniques like Next Generation Sequencing (NGS) and Polymerase Chain Reaction (PCR), determined for particular allelic variations and pathogenic mutations to bring about early diagnosis of conditions, personalisation of medicine, and risk stratification guided by genotyping. However, integrating genetic testing into clinical practice poses new ethical problems related to genetic privacy, informed consent, and possible psychosocial consequences. In addition, legal challenges dealing with the protection of genetic data and anti-discrimination laws, coupled with sociocultural issues related to stigmatisation and access equity, make the scenario around its implementation complex. The article addresses these subtler dimensions in the Indian context. Specifically, it highlights the need to ensure an ethically sensitive approach for the optimal utility of clinical benefits and societal dividends from genetic testing.

Ethical issues

Informed consent

Ethical duty in informed consent remains as one of the important requirements, especially in a genetic test. The patients are supposed to know the possible implications, risks, and consequences of these tests. Patients hardly understand genetic information because it is complex. Special genetic counseling will be necessary for effective informed consent to explain the impact on the health status of the patient and the future health status of his family. Informed consent procedures are yet to evolve in India, more so in rural, less educated populations requiring extensive education. Further complicated by language barriers and cultural differences, the proper process of obtaining truly informed consent remains far from perfection.

Privacy and confidentiality

As it concerns genetic information, which may be sensitive in nature and hence compromising if there is the potential for discrimination and stigmatisation, great care should be taken to protect privacy and data confidentiality. Some protection is provided in the US by the Health Insurance Portability and Accountability Act but there are gaps. Strong security measures, such as encryption and access controls, must be coordinated. Policies will have to be enacted to grant access to genetic information only to correctly authorised individuals. The 2019 Personal Data Protection Bill is an ambiguously reiterated bill in India that is supposed to deal with the question of privacy and certainly provides for genetic data, which is in dire need of much clearer legislation.

Psychological effects

Genetic testing can be psychologically burdensome and may result in anxiety, depression, or change in self-image. Hence, genetic counselling helps to a great extent in mitigating these effects. It enables the patients to accept the genetic information and helps them balance the benefits against the risk of knowing one’s genetic status. In India, genetic counselling services are few and are normally localised in urban areas; hence, its expansion into rural and semi-urban areas needs attention.

Legal Implications

Legal framework

The genetic test regulation system is divided at a global level, which results in the diverse quality of the respective services and practices. As for the United States, the Food and Drug Administration (FDA) safeguards the trustworthiness and accuracy of genetic tests, even though the Genetic Information Nondiscrimination Act (GINA) liberalises the discrimination on genetic bases but keeps the insurance and employment sectors not fully covered.

India, on the other hand, devised a genetic screening compass, which is controlled by the Indian Council of Medical Research (ICMR). The centre has released perusal guidelines for genetic testing and counseling. Nonetheless, there is no enforcement of these guidelines legally, and hence there are differences in the standards and efficiency of the testing instruments in different centers. The most important laws related are:

Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act): This law is a prohibition of prenatal testing that may be the vehicle of sex-selective abortion because of the genetic selection indirectly derived from prenatal testing.
Full compliance with the DNA Technology (Use and Application) Regulation Bill of 2019: This bill seeks to inject a DNA testing and profiling facility in the national database, which should comply with the accuracy of the ethical use of genetic information.

Unification of genetic testing standards and practices is an urgent requirement for the global health scenario. The OECD’s (Organisation for Economic Co-operation and Development) guidelines in molecular genetics testing for quality assurance and the Council of Europe’s recommendations on genetic testing, among others, are international undertakings that aspire to offer a coherent centre for genetic testing and shield individual rights. Alternatively, the ultimate version of the harmonisation of law is still unfinished.

Discrimination

Genetic discrimination, or treating individuals differently on the basis of their genetic information, is a continuing cause for concern. Much of this discrimination in the US is protected under GINA, in processes relating to employment and health insurance, but not life, disability, or long-term care insurance. These legal frameworks that have been devised need to be more comprehensive in nature, protecting all aspects of insurance and employment globally. No legislation exists in India that safeguards against genetic discrimination, so there is an urgent requirement for legislation for workplace discrimination and discrimination pertaining to insurance.

Intellectual property

The patenting of genetic discoveries is a very emotive issue. While patents provide incentives for research and development, they not only often result in inaccessible genetic tests as a result of their cost but also gene therapies. The Association for Molecular Pathology v Myriad Genetics case was decided in the US Supreme Court; it agreed that naturally occurring genes cannot be patented while synthetic DNA can be. This clearly balances innovation and accessibility. While the Patents Act of 1970 in India and subsequent amendments govern the discovery of genes, there are hostile questions about the degree to which genes are patentable, representing the global concerns about issues of balancing access while rewarding innovation.

Social implications

Access and equity

Social access to genetic testing is unequal; this is powerfully influenced by socioeconomic status, geography, and race. Genetic testing is usually more accessible in high-income countries, where facilities for its practice are available and accommodated into their health systems. For that reason, it highly contributes to health disparities between high- and low-income countries or low- and middle-income countries. The access can be improved by increasing funding for genetic services, implementing genetic testing into public health programs, and training health workers in genetics. In India, costs are too high; it requires knowledge that is not always available; infrastructure is too poor in rural areas. Genetic testing should be available and affordable through public health policy.

Public perception and stigma

Cultural, social, and educational milieus form the backdrop for public perception about genetic testing. Misconceptions and fears concerning genetic information may lead to stigmatisation and discrimination. This should be addressed by public education campaigns and community outreach that convey truthful information about genetic testing. Portrayal in the media should be checked for misinformation and undue expectations. Genetics-related stigmatising myths and beliefs can come from cultural sources in India. Community-based education programs, in conjunction with local leaders, provide education for the dispelling of these issues and allow a better understanding of the public with regard to genetic testing.

Family dynamics

Inherent in genetic information are familial implications, potential causes for tension, guilt, and conflict amongst the members of a family. Genetic counselling should take into consideration the perspective of the family; concerns about genetic findings should be duly addressed. Ethical guidelines need to be such that they help in balancing rights of the individual with familial responsibilities. In India’s common joint family system, culturally sensitive approaches to genetic information dissemination lay emphasis on family-centred counselling so that the impact on relatives can be properly managed.

Discussion

The integration of genetic testing in health care requires a multidisciplinary approach to overcome the ethical, legal, and social implications of its use. Ethicists, legal experts, clinical workers, and policymakers should work harmoniously to help subdue the problems. Policies should be available that protect the individuals and have access, equity, and public understanding. Recommendations presumed to play a vital role are:

Education and communication strategies on informed consent.
Improved genetic education programs of HCWs, including policymakers.
Expanding strategies for notification of carriers.
Improved data protection regulations and steps to protect genetic data.
Increase in anti-discriminatory laws to all insurance and employment.
Community involvement and awareness toward reducing stigma and misconceptions.
Unbiased access to genetic testing around the world, and in India in particular, to reduce the variance between different parts of the country.

Conclusion

Genetic testing is an essential tool to be used in the context of medical innovation, potentially transformative in the diagnosis and management of genetic conditions. However, extensive application will bring a complex web of ethical, legal, and social implications to be managed most prudently. At a moral level, the requirements are for informed consent, preservation of genetic privacy, and handling the psychological impact of test results. Yet another vital issue regarding this context is safeguarding individuals from genetic discrimination in jobs and insurance, e.g., GINA in the US. Intellectual property rights versus the access of genetic testing technologies is the other debated issue. Currently, social inequalities in access to testing still exist concerning LMICs. These disparities result from the varied dimensions of socioeconomic status, geographical location, and healthcare infrastructure. Significant role in the acceptance and utilisation of genetic services is cultural beliefs and practices; hence, genetic counselling and public education need culturally sensitive delivery. In India, the problems are more compound. Various ethical issues involved include informed consent and maintenance of privacy about genetic information in a heterogeneous population. Many more legal actions are required in India, and being unequipped with a comprehensive law like GINA, can only resolve the problem.

References

1. McEwen, J. E., Boyer, J. T., & Sun, K. Y. (2014). Evolving approaches to the ethical management of genomic data. *Nature Reviews Genetics, 15*(1), 7-14. 10.1016/j.tig.2013.02.001.

2. Hudson, K. L., Holohan, M. K., & Collins, F. S. (2008). Keeping pace with the times — The Genetic Information Nondiscrimination Act of 2008. *New England Journal of Medicine, 358*(25), 2661-2663. DOI: 10.1056/NEJMp0803964.

3. Knoppers, B. M., & Joly, Y. (2006). The emergence of an ethical duty to disclose genetic research results: international perspectives. *European Journal of Human Genetics, 14*(11), 1170-1178. doi:10.1038/sj.ejhg.5201747.

4. Ravitsky, V., & Wilfond, B. S. (2006). Disclosing individual genetic results to research participants. *American Journal of Bioethics, 6*(6), 8-17. https://doi.org/10.1080/15265160600934772.

5. Indian Council of Medical Research (ICMR). (2018). Ethical guidelines for biomedical research on human participants. Retrieved from https://icmr.nic.in/sites/default/files/guidelines/ICMR_Ethical_Guidelines_2017.pdf.

6. Ministry of Electronics and Information Technology, Government of India. (2019). The Personal Data Protection Bill. Retrieved from https://meity.gov.in/writereaddata/files/Personal_Data_Protection_Bill,2019.pdf.

Navigating complexity : balancing conservation and climate change goals

By

Vanshika Kapoor

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August 30, 2024

0

This article has been written by Gouri Shrivastava pursuing a Diploma in International Contract Negotiation, Drafting and Enforcement from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

“We don’t own the planet Earth. We belong to it. And we must share it with our wildlife.”

-Steve Irwin

The above quote aptly fits in the context of the latest Supreme Court judgement, which holds a great deal of significance for climate action litigation in India. The Apex Court finds itself at a critical juncture as it grapples between reconciling the country’s climate change objectives with the conservation of wildlife. In 2011, the Great Indian Bustard (GIB) was designated as “Critically Endangered” by the International Union for Conservation of Nature (IUCN). Overhead power lines provide the greatest threat to the GIB, as many collisions result in fatalities. In response, on March 21, 2024, the Supreme Court established a seven-member committee whose job it is to reconcile efforts to produce renewable energy in the same areas with conservation measures for the GIB. This development came to light during the ongoing hearing of the case M.K. Ranjitsinh and Ors. vs. Union of India and Ors. in 2019.

Even though the Supreme Court had previously rendered a judgement in this case in 2021, it has kept an eye on how the decision is being carried out to make sure that conservation measures are successful. Furthermore, the Apex Court has upheld that the right to be immune from the negative consequences of climate change is protected by fundamental rights, as stated in Articles 14 and Article 21 of the Indian Constitution. The right to equality and the right to life and personal liberty are guaranteed under these articles, which are the basic tenets of our Constitution. The Court has affirmed the right to a clean environment in a plethora of judgements, widening the ambit of the right to life. M.K. Ranjith Sinh and Ors. Vs. UOI and Ors. demonstrates the Supreme Court’s commitment to protecting wildlife and recognises the urgent need to combat climate change.

Key law provisions invoked in the case

Facts of the case

In this case, the Hon’ble Supreme Court’s jurisdiction has been invoked by filing a writ petition to protect the GIB and Lesser Florican, the two ‘Critically Endangered’ avian species as per the International Union for Conservation of Nature (IUCN). Ardeotis Nigriceps which is the scientific name of the GIB, is native to the southern and western parts of India. The GIB ‘arc’ envelops the habitats between the Pokhran Field Firing Range and the northern region of Desert National Park situated near Jaisalmer.

Initially, the environmentalist petitioners had approached the Apex Court invoking its constitutional jurisdiction under Article 32 via a writ petition in 2019 to issue directions to protect these rare bird species, which are tapering off in number, especially to prohibit the use of overhead transmission lines due to which these birds were killed in large numbers by collision. Back then, the Supreme Court had imposed restrictions on the installation of overhead transmission lines in a large swath of land and ordered the conversion of these lines into underground power lines in one year. Bearing in mind that the laying of high-voltage power lines would require expert advice, a committee was constituted by the court to check the feasibility of the same. Additionally, bird diverters were to be installed for overhead power lines while the expediency of underground power lines was being checked by the committee. Sanctions were granted on a case-by-case basis by the committee when undergrounding of such high-voltage power lines was impossible. Nonetheless, the Ministry of Environment, Forests and Climate Change, the Ministry of Power and Ministry of New and Renewable Energy sought modification in the 2021 directions as per the judgement.

Issues involved in the case

Striking a balance between India’s clean energy goals, which depend on overhead power lines for transmission, and the need to conserve GIB and Lesser Florican.
Is it feasible to replace the existing overhead power lines with underground transmission lines in the habitat area of the birds in question?

Observations of the court

The court’s observation can be broadly divided into two categories, namely, the climate change approach and the conservationist approach. Let us first look at the climate change approach that centred the court’s findings in this case:

Here, the court drew attention to India’s unwavering commitment towards attaining its climate action objectives, such as the clean energy mission, by deploying green hydrogen technology and reducing carbon emissions by 2030. Further, the court went on to observe India’s active participation in international efforts to combat climate change. The Kyoto Protocol which is an agreement under the UNFCCC puts a binding obligation on the member countries for achieving its carbon reduction targets. In order to meet the target, this protocol provides flexibility to countries in gaining their objectives through national measures and also offers additional mechanisms such as international emissions trading, clean development mechanisms, and joint implementation.

What’s more to add on to this is the court’s emphasis on the right to a healthy environment and the right to be free from the adverse effects of climate change. Article 48A of the Constitution states that “the state shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51A (g) makes the citizens responsible to safeguard and enhance the natural environment and treat all living creatures with empathy. While not directly actionable in the court of law, these provisions signify that the Constitution of India recognises the significance of a natural world.

The court placed reliance on the case of M.C. Mehta vs. Kamal Nath, wherein it was held that Article 48A and 51A(g) of the Constitution must be understood within the meaning of Article 21. Even though the Indian Constitution does not directly have any right to a clean environment, Article 21 (right to life and personal liberty) and Article 14 (right to equality) can be attributed to supporting the right to be protected from climate change impacts and the right to a clean environment.

In another case of Virender Gaur vs. State of Haryana, the court emphasised that it is the duty of the state to shed its extravagant sovereign power and forge in its policy to maintain a hygienic environment and keep up with ecological balance. The protection of life and personal liberty under Article 21 has a wide scope. It entails all other rights necessary to enjoy a dignified life and protection of a clean environment. This means any pollution caused in the environment, be it air pollution, water pollution, or noise pollution, hinders enjoyment of a dignified life and therefore violates Article 21 of the Constitution. It can be thus said that a hygienic environment is an indispensable element of the right to a healthy life, and it is not possible to lead a life with dignity without a clean environment.

The court pressed upon the importance of solar power as a source of renewable energy and that air pollution, particularly vehicular pollution, has left many Indian cities with the lowest air quality index. Therefore, when we talk about climate change, the imperative of shifting to solar power cannot be overstated. The roots of this lie in drastically reducing the reliance on fossil fuels, which would in turn mitigate greenhouse gas emissions and combat climate change.

Now, looking at the conservationist approach, the court opined that mere adherence to international conventions for achieving climate change goals would not suffice. There is a dire need to responsibly balance two equally essential objectives—the conservation of GIB on the one hand and the protection of the environment on the other. It is imperative to take up a holistic approach that does not sacrifice either of the two objectives. The court explained this with the help of an example that if it were to direct that all the power lines of transmission be made into underground power lines, many other parts of the environment would be adversely impacted. The importance of domain experts was highlighted as the decision of converting overhead transmission lines into underground power lines is a matter of environmental policy, which would require judicial review alongside expert opinion. In the absence of evidence for sweeping directions, the court cannot put a blanket prohibition on the installation of overhead power lines. The expert committee constituted by the court must strive for preservation of GIB on one hand, which must be non-negotiable with the need for sustainable development for meeting India’s international commitments.

Judgement of the court

In its endeavour to strike a balance between wildlife conservation and achieving India’s clean energy goals, the court recalled its earlier injunction order on the installation of overhead power lines. The court granted the Expert Committee the liberty to lay suitable parameters covering both the priority and potential areas. Further, the court issued the following directions:

Considering the impact on GIB population, the committee shall figure out the scope, feasibility, and extent to which overhead transmission lines can be laid in priority areas.
Promote protection and conservation measures for GIB and other such endangered species.
Recognise and implement measures like anti-poaching regulations and community awareness programs in priority areas.
Consult the relevant stakeholders, such as government agencies, wildlife biologists, representatives of the energy industry, and the local community, for gathering more information.
Identify potential harms of climate change on the GIB population while bearing in mind the effect of rising global temperatures, habitat degradation, and shifting precipitation patterns to formulate adaptive measures to enhance the resilience of GIBs.
Evaluate the world’s best practices in bird conservation for implementing innovative approaches such as the Houbara Bustard in the Middle East or the Black Stilt in New Zealand.
Put in place a sturdy monitoring and research program to track the number of GIBs over time and check the efficacy of conservation measures. This can be achieved through satellite tracking, camera tapping, and ecological surveys to collate essential data.
Prescribe any additional measures, both in priority and potential areas. For this, the effectiveness of bird diverters may be studied for future power lines if it can be backed by scientific study.

Comment

The Great Indian Bustard (GIB), which was once a commonly seen bird in and around the state of Rajasthan, has now fallen to the place of a ‘critically endangered’ bird with only about 150 in number as per the 2018 study. This ostrich-like avian species is one of the heaviest birds in the world, and the dwindling population of it calls for more proactive conservation measures. In my opinion, the Supreme Court has struck a commendable balance between conservation of wildlife and developmental goals of the country. It took a pragmatic approach in prioritising the conservation of the critically endangered species while also recognising the existing challenges in making overhead transmission lines into underground power lines. Further, appointing a committee of experts to look into the potential threats, feasibility, and scope of replacing all the overhead transmission lines with underground power lines is a welcome move. The skills and experience possessed by the domain experts would be helpful in reaching an appropriate solution. The court also directed that a National Bustard Day be celebrated to underscore the need for conservation of these species. The emphasis that the court put on capacity-building programs and collaboration with scientific organisations is to be applauded as it showcases the court’s commitment towards achieving long-term goals and immediate action.

As humankind progresses, we should strive towards attaining harmony between conservation and development. The case of M.K. Ranjit Sinh and Ors. sets forth a positive precedent for future environmental law cases as it spotlights the importance of finding expedient solutions that cater to both economic and ecological problems.

References

Fake news, mob lynching, cow vigilantism : Tehseen S. Poonawalla case

By

Rachit Garg

-

August 30, 2024

0

This article is written by Saswata Tewari and further updated by Pujari Dharani. This article provides a detailed case analysis of Tehseen S. Poonawalla vs. Union of India (2018), including the Supreme Court’s observations on cow vigilantism, intolerance and lynching activities and also the court’s guidelines to the government, pertaining to the incidents of mob violence. This article further explains new provisions on mob lynching inserted in the Bharatiya Nyaya Sanhitha, 2023.

Table of Contents

Introduction

According to Reuters, a minimum of 44 people died due to cow vigilante attacks in India between May 2015 and December 2018. Mob lynching cases are rising where the self-proclaimed cow vigilante groups in the name of cow protection, lynches innocent individuals and in most of these lynching cases, it has been found that the accusations which led to the lynching of the victims had no truth in it and it was all because of hate propaganda and fake news.

We know that the law is supreme in a civilised society, and its purpose is to guide the people in conducting themselves. The law also confers certain rights to people. The law, thus, provides both rights and duties to the people of a society. The onus of the protection of the former is upon the State, and the obligation not to break the duties imposed on oneself is cast upon the subjects of such law. No individual or any group should take laws into their own hands and deal with a person according to their own will in the name of enforcement of the law. This questions the existence of our prevailing law system in the country, and such incidents should not be tolerated in a civilised society that respects the fundamental principles of the law.

Huge protests were held against such activities of lynching and people from all over the country raised their voices condemning mob lynching activities and the cow vigilante groups behind these incidents. Initiatives were taken by a lot of individuals to create cognisance among people about such incidents and to stop the misuse of social media to spread rumours by planting fake stories and news which eventually brought about such activities.

Tehseen Poonawalla, a social activist, filed a writ petition in the Supreme Court questioning the validity of the animal protection laws in 6 states which had provided loopholes to these cow vigilante groups to take the law into their hands. The Supreme Court, in the case of Tehseen S. Poonawalla vs. Union of India & Ors. (2018), made important observations on various aspects of this case such as the obligation of the state to control such criminal activities, the negative effects of vigilantism and lynching, and many more, and also gave directions to the central and state governments to take the specified measures immediately.

Details of Tehseen S. Poonawalla vs. Union of India & Ors. (2018)

Name of the case – Tehseen S. Poonawalla vs. Union of India & Ors. (2018)
Date of the judgement – July 17th 2018
Parties of the case –
1. Petitioner: Tehseen S. Poonawalla
2. Respondent: Union of India & Ors.
Equivalent citations – AIR 2018 SC 3354, (2018) 9 SCC 501, [2018] 9 SCR 291, 2018 4 AWC 4307 SC, 2018 INSC 617, 2018 (9) SCALE 4, 2019 (3) SCJ 117.
Type of the case – Writ petition
Court – The Hon’ble Supreme Court of India
Provisions and Statutes involved – Sections 153A and 295A of the Indian Penal Code, 1860, and Sections 129 and 357A of the Code of Criminal Procedure, 1973
Bench – The then Chief Justice of India Dipak Misra, Justice A.M. Khanwilkar and Justice Dr. D.Y. Chandrachud.

Facts of the case

Several incidents of mob lynching had happened in India in the name of cow vigilantism and disturbed by these events, Tehseen S. Poonawalla, a social activist, filed a writ petition under Article 32 of the Indian Constitution.
Mob lynching incidents which were highlighted in the writ petition are:
- The hanging of two men in Balumath forests in Latehar District in Jharkhand.
- The flogging of Dalits in Una, Gujarat.
- Mob lynching of Pehlu Khan in Alwar district in Rajasthan.
- Mob lynching of Mohammed Akhlaq in the town of Dadri in Uttar Pradesh.

The cow protection laws of 6 states- Gujarat, Jharkhand, Karnataka, Maharashtra, Rajasthan, and Uttar Pradesh, were challenged by the petitioner. A few provisions which were challenged were given below.
- Section 12 of the Gujarat Animal Prevention Act, 1954 confers protection against a few individuals from being tried in any proceedings, whether civil or criminal, provided such a person acted in good faith or promised such an act with the intention that he is doing the same in conformation with the said Act or the Rules made thereunder.
- Similar protection is provided under Section 13 of the Maharashtra Animal Prevention Act, 1976 and Section 15 of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964
The petitioner sought the Hon’ble Supreme Court of India, under this writ petition, to issue a writ of mandamus by commanding the respondent, i.e., the State, to do the following measures;
- To take necessary and instant actions against all those cow protection groups who were involved in violence;
- To remove any violent content posted on social media by the said groups; and
- To declare a few statutory provisions, which absolve a few cow vigilante activities from legal liability, as constitutionally invalid.
In 2017, the Supreme Court ordered the state governments in India to appoint a senior police officer as a ‘designated Nodal Officer’ in every district in their respective state. The duties of such Nodal Officers are to ensure that the vigilante groups do not commit any violent activities by taking the law into their own hands for the sake of cow protection and taking immediate and effective steps to prevent such anti-social elements in their jurisdiction, including highways. In spite of taking such preventive measures, if such violent activities have occurred, the said Nodal Officer must take prompt police action by filing a First Information Report (hereinafter mentioned as FIR) against such offenders.

Provisions involved

Article 48 of the Indian Constitution

Article 48 of the Constitution of India provides a directive principle for the State to keep in mind while formulating policies. This constitutional provision says that the State should strive hard to develop the agriculture and animal husbandry sector as per the latest technological advancement, as well as protect and improve the animal breeds. In specific, the Constitution also directs the State to ban the slaughter of cows and calves.

Section 153A of the Indian Penal Code

Section 153A of the Indian Penal Code, 1860 (hereinafter mentioned as IPC), which has now been replaced with Section 196 of the Bharatiya Nyay Sanhita, 2023 (with effect from 1st July 2024) (hereinafter mentioned as BNS), stringently punishes the following acts.

An act that promotes enmity, disharmony, or feelings of ill will between two groups or classes on the following grounds.
- Religion;
- Race;
- Place of birth;
- Residence;
- Language;
- Case;
- Community; or
- Any other ground
An act which disturbs the maintenance of harmony between two different regional groups.
If the above acts are committed in a place of worship, there will be an enhanced punishment.

To know more about Section 153A of IPC, click here.

Section 295A of the Indian Penal Code

Section 295A of the IPC, which was replaced with Section 299 of the BNS, stringently punishes the offence of a malicious act intended to outrage the religious feelings of any class. The essential ingredients of this offence are given below.

The accused person has made a statement or representation by speaking, writing, gestures, or visible representation;
Such a statement is made with the intention to outrage the religious feelings of any class of Indian citizen; and
Such intention must be deliberate and malicious.

Section 129 of the Code of Criminal Procedure

Section 129 of the Code of Criminal Procedure, 1973 (hereinafter mentioned as CrPC), which has now been replaced with Section 148 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (with effect from 1st July 2024) (hereinafter mentioned as BNSS), empowers certain authorities, namely the executive magistrate or officer in charge of a police station, to disperse the unlawful assembly. If such an assembly does not abide by the warning given by such authorities, the said authorities can use force to disperse them and can also arrest and confine them, if needed.

Section 357A of the Code of Criminal Procedure

Section 357A of the CrPC, which was replaced with Section 396 of the BNSS, deals with the victim compensation scheme. Every State government shall draft such a scheme to provide relief to the victim or his/her dependants who sustained injury due to the offence. By this provision, any competent court may fix the amount of the compensation which will be provided by the legal service authority of that district or state under the said scheme.

Issues raised in Tehseen S. Poonawalla vs. Union of India & Ors. (2018)

Can immediate and necessary actions be taken by the states and Centre against the cow protection groups for indulging in violence?
Should the court order the Centre and states to issue orders to the television and social media service providers to remove all the violent content posted on their respective platforms by these cow protection groups?

Arguments advanced by both parties in Tehseen S. Poonawalla vs. Union of India & Ors. (2018)

On behalf of the petitioner

It was argued by Mr. Sanjay R. Hedge that no person or cow protection group can involve himself or themselves in the activity of lynching a person on the mere perception that a crime has been committed and that lynching or any kind of mob violence has to be suppressed by the executive. The law and its supremacy must prevail. The law provides for the substantive provisions, where it designates a few acts as crimes, defines them and prescribes punishment, and procedural provisions, which have to be followed and no one should take laws in their hand. The counsel strongly prayed to the Court that mob lynching activities have to be prevented by law enforcement agencies and that any kind of defence should be tolerated by the courts. By relying on the case of Shakti Vahini vs. Union of India and Ors. (2018), the counsel emphasised the need for preventive, remedial and punitive measures to curb mob violence in India.
It was argued by Ms. Indira Jaising that it is the duty of the law enforcement authorities of the states concerned to not only register an FIR on receiving information about such commission of mob lynching by the victims’ family members but also be quick in taking immediate measures to stop such violent activities and if these activities of lynching are not stopped, individuals will indulge in vigilantism, start taking the law into their own and enforce the law according to their judgement. Ms. Indira Jaising also noted that mob lynching cases are constantly increasing in the states of Delhi, Gujarat, Haryana, Jammu and Kashmir, Karnataka, Madhya Pradesh, Maharashtra, Rajasthan and Uttar Pradesh due to which minorities belonging to certain communities are prone to be targeted. Sometimes, they become victims due to the suspicion that is raised from fake news. It was further argued that the Central Government has the authority to intervene in the practice of powers by the States and issue commands, as conferred by Articles 256 and 257 of the Indian Constitution, in order to uphold the concept of cooperative federalism. She also highlighted the need for patrolling on national highways as one of the preventive measures to stop such violent activities by potential offenders.

On behalf of the respondent

It was argued by Ms. Hemantika Wahi, standing counsel for the Gujarat state, that in the state of Gujarat, all those persons who were involved in the said lynching activities have been arrested and also were charged for relevant offences and necessary action is taken against the police personnel. Similarly, Mr. Tapesh Kumar Singh, counsel for the Jharkhand state, stated that in the state of Jharkhand, legal actions have been taken against and criminal cases have been filed against the persons who had been involved in mob lynching cases.

Mr. Ranjit Kumar, Solicitor General, appearing for the Union of India, said that these incidents of lynching relate to the states concerned, where such incidents had taken place, as law and order is a state subject and that the Union of India does not support such lynching activities by the vigilante groups.
Mr. Tushar Mehta, Additional Solicitor General appearing for the states, namely Haryana, Rajasthan, Gujarat and Maharashtra, made a submission to the Hon’ble Court that these states will select a senior police officer from their respective police departments and designate as the Nodal Officer in each district, who will be under a duty to ensure that these vigilante groups will never take the law into their hands. If they disobey the rules and enforce the law as if they are the enforcing agencies, the said Nodal Officer shall take action against such vigilantes and promptly file cases against them under relevant penal provisions.

Judgement in Tehseen S. Poonawalla vs. Union of India & Ors. (2018)

The bench of the Supreme Court comprising Chief Justice Dipak Misra, Justice A.M. Khanwilkar, and Justice Dr. D.Y. Chandrachud gave the judgement, in this case, addressing all the issues with enormous sensitivity and issued certain guidelines covering the area of preventive, remedial, and punitive measures to suppress the activities of lynching as the situation has arisen in the country to take prompt action.

The Supreme Court observed the following while dealing with such sensitive issues in the present case.

The State, including the law enforcement agencies, have a greater responsibility to look after the proper administration of law and no private individual shall be allowed to take the law in their hands or to behave in a fashion that they are the law themselves for the sake of protecting the law or punishing the criminals.
Any citizen of this country has a right to approach the police station freely and inform the authorities there regarding the commission of any lynching or mob violence activities, but he has no right to take the place of adjudicating authorities and become the guardian of the law.
The accused, who has allegations of commission of such criminal acts, must be entitled to a fair and speedy trial in a criminal court as per the constitutional and statutory rights he has.
The judiciary, i.e., the competent criminal court, is the rightful authority to adjudicate such matters and decide upon the issues of whether such an offence is committed and what shall be the appropriate punishment after hearing both sides of arguments and examining the evidence placed before it.

Different guidelines put forth by the Supreme Court in the case of Tehseen S. Poonawalla vs. Union of India & Ors. (2018)

The duty of the State to promote fraternity

The Supreme Court, in the present case, by referring to precedents set by the Supreme Court emphasised the role and responsibility of the State in controlling communal violence and related criminal activities. In this regard, the observations of the Court are given below.

Besides the proper administration of law by the State, the Court also mentioned the Supreme Court’s observations in the case of Nandini Sundar and Ors. vs. State of Chhattisgarh (2011) that the State is under the duty to promote fraternity, i.e., brotherhood, among all citizens of our country, as provided in the Preamble of the Constitution of India. The Court also mentioned that the State’s duty is to take the help of intelligence bodies of both state and centre to stop communal violence from happening again and, in this process, if any public servant is found negligent, they will punished as per law accordingly.
Additionally, the Court cited Archbishop Raphael Cheenath S.V.D. vs. State of Orissa and Anr. (2016), which dealt with the issue of communal violence, the Supreme Court held that the State Government must investigate and find out the root cause for the communal disharmony within their state and accordingly take steps to strengthen the brotherhood by adopting peace-building measures in the society among its citizens. Further, the Court also suggested having a sophisticated and effective police infrastructure so as to help the government in controlling communal violence and its reoccurrence.

The duty of the State to stop vigilantism and lynching activities

The Supreme Court, in the present case, held that the state governments have the primary duty to stop vigilantism, whether cow vigilantism or any other kind, irrespective of its cause and purpose. It does not matter if the purpose of vigilantism is good as the motive is not considered in criminal law. Moreover, taking the law into one’s own hands is something which is not acceptable and the state will interfere and punish them accordingly. Stating this, the Court have following guidelines to the State.

The state is under a duty to protect the people of this country from such offenders without considering race, caste, class or religion because crime and victims have no class or community and, if they start taking the law into their own hands, society eventually turns violent and chaotic. It will also result in violation of constitutional values and undermining the institutional framework of the country.
The Court firmly noted, when the issue of lack of cattle protection, incidents of cattle smuggling and practice of cruelty towards animals were brought to the notice of the Court, that it is the competent authorities like law enforcement authorities and courts that have the power to take steps, to find out the criminals, initiate criminal proceedings against him and punish him upon conviction. The Court also observed that, in a country where the rule of law is prevailing, no person shall presume himself to be the competent authority, take extra-judicial steps and be a punisher to such accused people.
Furthermore, the other thing which threatens the rule of law and constitutional values of that country is lynching activities and hate crimes, as highlighted by the Court. In this regard, the Court observed that “We may say without any fear of contradiction that lynching by unruly mobs and barbaric violence arising out of incitement and instigation cannot be allowed to become the order of the day… Unless these incidents are controlled, the day is not far when such monstrosity in the name of self-professed morality is likely to assume the shape of a huge cataclysm. It is in direct violation of the quintessential spirit of the Rule of law and of the exalted faiths of tolerance and humanity.”

The duty of citizens to protect the constitutional values of tolerance, unity and harmony

The Supreme Court also observed that the freedom of speech and expression, one of the important freedoms in a free and democratic society, is grossly affected by such mob violence and hate crimes. In this regard, the Court highlighted the importance of virtues like pluralism, tolerance and unity. The Court noted that pluralism in thought and practice will lead to unity among the people. Here, it is also pertinent to note that the concept of “unity in diversity” is embedded in the Preamble of our constitution. Further, the Court while opining about the aforesaid principle relied on Emile Durkheim’s view, a French sociologist, stating that, if unity among fellow citizens in a society is based upon diversity and heterogeneity, such society can be termed as an organic solidarity. By this, India, where there are geographical, religious, linguistic and cultural variations, can also be named as a complete organic social solidarity. The Supreme Court referred to the case of Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi & Ors. vs. State of Uttar Pradesh & Ors. (1997), where the Court held that religious tolerance, which makes the people in society respect each other’s religious faith and belief, is an important element of the concept of “unity in diversity”. Also, in State of Karnataka & Anr. vs. Dr. Praveen Bhai Thogadia (2004), the Court decided that adopting and embracing the attitude of unity in diversity is the best way of life in the world’s most heterogeneous society like ours and going against the communal harmony would destroy the constitutional values. In the Praveen Bhai case, the Court also observed that “It is inconceivable that there can be social well being without communal harmony, love for each other and hatred for none.”

Whereas, intolerance will make society imbalanced and negatively affect others’ rights, especially free speech. To prevent the same, the Court suggested adopting a tolerant attitude and embracing diversity by stating “The State has the primary responsibility to foster a secular, pluralistic and multi-culturalistic social order so as to allow free play of ideas and beliefs and coexistence of mutually contradictory perspectives.”

Compliance with fair laws and procedures for arrest, investigations and conviction

The laws, which provide a procedure for the arrest, investigation and conviction, are already in place such as the CrPC, which is now replaced with the Bharatiya Nagarik Suraksha Sanhita, 2023 and will take effect from July 1st, 2024. In case of a lack of proper procedure, the judiciary took an active role in giving guidelines to be followed by the law-enforcing governmental authorities. In this regard, the Supreme Court cited a few cases where the judiciary procedural guidelines were to be abided by in case of arrest and detention, namely D.K. Basu vs. State of West Bengal (1997), Arnesh Kumar vs. State of Bihar & Anr. (2014), among other cases. Not only do the governmental authorities have to follow the guidelines and act in such a way as not to violate the rights of the citizens, but also the citizens must respect the existing laws and procedures and be loyal to the same. If there is any commission of offence, the authorities will intervene and take necessary actions and no person, in any case, should step into the shoes of the authorities and take action on their behalf. The vigilante groups, upon knowing any criminal activity, have the right to immediately inform the authorities nearby, who will take prompt actions as per law accordingly.

Creation of penal provisions for the offence of lynching by the legislature

The Supreme Court, with an object to instil fear in the minds of potential lynchers, recommended the Parliament make new penal provisions for the offence of lynching, besides the existing penal provisions, and fix suitable punishment. The Court also observed that “There can be no trace of doubt that fear of law and veneration for the command of law constitute the foundation of a civilized society.”

American cases referred by the Supreme Court in the case of Tehseen S. Poonawalla vs. Union of India & Ors. (2018)

In American society too, there was a time when lynching was widely being committed by lynchers and courts in the United States of America (USA) took effective steps to prevent the same. Some prominent relevant cases were referred by the Supreme Court in the present case, which are given below.

Riggins vs. United States (1904)

In this case, an accused was convicted for committing the murder of a negro citizen and was undergoing imprisonment period, during which he was attacked by a mob, who took him away from custody and killed him. A few people involved in such mob attacks were charged for which a habeas corpus petition was filed. Justice Thomas Goode Jones, while disposing of this petition, stated that this is not the case of normal kidnapping and murder, it is more than that. The mob, in this case, unauthorisedly performed the duties of punishing him, which is a sovereign function, and violated the rights of the accused as well as the purpose of the Constitution of the U.S.A.

Wilson vs. Garcia (1985)

In this case, the US Supreme Court referred to the debates in Congress on the passage of the Civil Rights Act, 1871. The Supreme Court of India took a relevant passage from such debates. That passage conveys that the authorities in America are not taking any sufficient steps in spite of incidents of murders, lynching and whipping increasing. It further states the sad state of affairs that the offenders are walking free while the law-abiding citizens search the public documents to prove the offence by producing evidence.

Measures laid down by the Supreme Court in Tehseen S. Poonawalla vs. Union of India & Ors. (2018)

The Supreme Court referred to the suggestions made by the learned Senior Counsel Sanjay R. Hedge in which the petitioner wanted the court to prescribe immediate and necessary measures against the self-proclaimed cow vigilante groups who were indulging in violence and mob lynching in the name of cow protection. The Court noted Sanjay R. Hedge’s submission and stated that no person or vigilante group can involve themselves in an act of violence on the underlying perception of an idea that a crime has been committed and any kind of lynching or mob violence has to be restrained and disabled by the Central Government.

The Supreme Court after listening to all the arguments came up with some guidelines to curb the rising cases of mob lynching. The guidelines were made under three categories i.e. preventive, remedial, and punitive measures. It was believed that when the preventive measures faced failure, the crimes would be controlled by the remedial and punitive measures.

The Supreme Court also mandated the Central and State governments to start implementing the below measures and compliance reports shall be submitted to the registry of the Supreme Court.

Preventive measures

The State’s primary duty is to ensure that the crime does not occur in the first place. For this duty to be fulfilled, the Court recommended the following preventive measures to ensure that the law and order in every district are maintained and peace and harmony prevail among the citizens of this country.

The state governments would appoint a senior police officer, not below the rank of Deputy Superintendent of Police (DSP) as a Nodal Officer in each district. The Nodal Officer shall be helped by one of the DSP rank officers in the district to take action in order to stop the incidents of mob violence and lynching. A special task force shall be made to get intelligence reports about such individuals who are likely to indulge in such crimes of violence or who are engaged in spreading hate speeches, provocative statements, and fake news.
Districts, subdivisions, and villages will be pinpointed by the state governments where cases of mob lynching have been reported recently i.e., in the last five years. This task must be done within the period of three weeks from the date of this judgement.
It will be the duty of the Nodal Officer to make sure that the officer-in-charge of the police station of the pinpointed areas is always a little extra cautious if any case of mob lynching within their jurisdiction comes to their notice. In this regard, the secretary of the respective home departments of the state concerned will issue guidelines and directions for the proper functioning and administration.
Regular meetings, i.e., at least once every month, were to be held by the Nodal Officer with intelligence bodies and all Station House Officers (SHO) of that particular district to identify any chances of vigilantism, mob lynching and violence in their jurisdiction and take necessary steps to stop any spread of violent content, which incites the commission of the said offences, on different social media platforms. Besides this, the Nodal Officer is also under a duty to reduce the communal disharmony in that district.
Review meetings once in six months must be conducted by either the Director General of Police (DGP) or the secretary of the respective home department of that state with all the Nodal Officers of every district as well as the heads or chairmen of the State Police Intelligence body. If there is any issue of coordination of two or more districts, the Nodal Officer must bring notice about such issue in the meeting.
Police officers should use their power under Section 129 of the CrPC to disperse while dealing with cases of mob lynching and under circumstances where he or she thinks that a similar crime may be committed in the name of vigilantism.
The Home Ministry of the Government of India should work with the state governments to train the officers concerned and to provide other necessary infrastructure and facilities.
If there are any past incidents of mob lynching and violence or if there is any information given by the intelligence authorities, the Director General of Police directs the Superintendents of Police to do frequent patrolling in the suspective areas and highways. The object behind the patrolling is to instil fear in the minds of the potential lynchers or criminals so that they will stop themselves from implementing their conspiracies.
A warning should be given by the union and state governments on radio, television and other media platforms including the official website of the law enforcement agencies that lynching and mob violence will invite serious legal consequences.
Steps should be taken by the union and state governments to curb and stop the dissemination of violent posts on social media platforms which tend to provoke mob violence and lynching.
Police are to register FIR under Section 153A of the IPC and/or relevant provisions of law against individuals who spread hateful messages on social media platforms which is likely to provoke mob violence and lynching cases
The state government shall be directed by the advisories of the union government which shall show the seriousness of the situation and the actions to be taken by the state government.

Remedial measures

In spite of adopting the previously discussed preventive measures by the governmental authorities, still, if such incidents of mob lynching and violence occur, the Court suggested the following remedial measures to be followed by the authorities.

If any case of mob lynching comes to the notice of the local police station, which has the jurisdiction, an FIR should be immediately lodged under appropriate penal provisions without any delay.
The Station House Officer of that police station, where the FIR is lodged, shall inform about the same to the Nodal Officer in the district, who will take steps to protect the family members of the victim from further assaults and criminal force.
The Nodal Officer shall personally monitor the investigation in such cases to ensure an effective investigation, including the arrest of the accused persons, and that the charge sheet is filed within the statutorily specified period.
A compensation scheme shall be prepared by the state government in light of the provisions of Section 357A of the CrPC within one month from the date of judgement to help the families of the victims of the offence of mob lynching or violence. In the said scheme, there must be a provision providing interim monetary relief to the victims or to the family members of the victim within 30 days from such occurrence of such violence. The amount of compensation varies from victim to victim based upon factors like the nature of the injury, whether bodily or psychological and financial loss, including loss of educational and employment opportunities and legal and medical expenses.
Fast-track courts should be established in every district specifically adjudicating the cases of lynching and mob violence to ensure speedy trials. A six-month time period from the date of cognizance of the said offence is preferably specified by the court for disposal of the case so that the designated courts function on a day-to-day basis and do not cause any delays in concluding the matters. This rule shall apply to both new matters as well as the pending matters. The duty of assignment of cases to competent courts is imposed upon the District Judge.
The trial courts should award the maximum sentence as prescribed in the penal provisions to the convict for the offence of mob lynching or violence in order to set stern examples so that it instils the potential offenders from attempting their conspiracies.
Appropriate steps may be taken by the designated courts that are dealing with mob lynching or violence cases to conceal the identity of a witness, who is at threat or risk from the offenders or persons at the behest of such offenders. Even the address of the witness needed to be concealed for their protection. This remedial measure will be taken at the discretion of the designated courts. If it feels such measures are not necessary in the instant case, no such measures shall be taken mandatorily.
A timely notice regarding the court hearings will be issued to the victim or, in the case of the deceased victim, to his/her family members. Especially, in hearing when the accused persons request for bail, discharge, release or parole, the right to be present and be heard is conferred on the victim or his/her family members. They are even entitled to submit their written submissions after an order for conviction or acquittal is passed.
The victim or the next of kin of the deceased victim, if he/she so chooses, shall receive free legal aid services from the advocate of his/her choice from the legal aid panel members under the Legal Services Authorities Act, 1987.

Punitive measures

The Court also specified punitive measures if the official concerned did not abide by the said guidelines and did not take any preventive and remedial measures.

If a police officer or an officer of the district administration is found to have failed to follow the above-mentioned directions of the court to stop and/or to investigate and/or to facilitate the speedy trial of any crime of lynching and mob violence, then it shall be deemed to be an act of deliberate negligence and misconduct on the part of such officer.

Such an act of deliberate negligence and misconduct must be punished by the government, apart from the departmental inquiries initiated against the individual under the service rules.
The state government are to take disciplinary actions against the officers concerned if it finds that:
- The officer did not take any actions to stop the incident of lynching or mob violence despite having prior knowledge that the said incident was about to take place; or
- Where the offence had already been committed, the officer did not instantly arrest and start the criminal proceedings against the culprits involved in the violence.

Aftermath of the case

On the date of 20th August 2018, the Supreme Court started observing the enforcement of the guidelines issued in the judgement of the case. In the first hearing after giving the judgement, the court formally rebuked the states who had not given the compliance report, gave the states a deadline to submit the report and warned them that they were to face strict consequences for non-submission of such reports. Complying with this order, a few states, namely Assam, Bihar, Gujarat, Haryana, Jharkhand, Madhya Pradesh, Rajasthan, Tamil Nadu, Tripura, Uttar Pradesh and UT of Lakshadweep, submitted their compliance report.

In January 2020, the Ministry of Information and Broadcasting informed it had issued orders to private television, besides Doordarshan as it is already following them, and radio channels to follow the 2018 guidelines given by the Supreme Court in the Tehseen Poonwala case. Apart from this, the ministry also directed them to scroll the following two informational messages on their screens in order to spread awareness about the same.

Mob violence and lynching are heinous crimes and invite serious consequences under the law.
Mob violence and lynching are serious criminal offences and invite stringent punishment under the law.

The case of Shaheen Abdullah vs. Union of India & Ors. (2023) dealt with the petitions where the petitioners requested the Court to direct the government to take action to decrease hate crimes. On 25th August 2023, the Supreme Court, while hearing the Shaheen Abdullah case, asked the state governments to respond whether they complied with the guidelines given in the Tehseen Poonwala case. In November 2023, the central government responded and informed the Court that the 28 states, namely Andhra Pradesh, Arunachal Pradesh, Assam, Chhattisgarh, Goa, Haryana, Himachal Pradesh, Jharkhand, Karnataka, Madhya Pradesh, Maharashtra, Manipur, Meghalaya, Mizoram, Odisha, Punjab, Rajasthan, Sikkim, Telangana, Tripura, Uttarakhand and Uttar Pradesh, and union territories, namely Andaman and Nicobar Islands, Delhi, Jammu & Kashmir, UT of Ladakh, Lakshadweep and Puducherry, appointed Nodal Officers in each district in their respective states following the 2018 guidelines.

Provisions relating to mob violence in Bharatiya Nyay Sanhita (BNS)

By complying with the direction given by the Supreme Court to make separate provisions in the Penal Code to punish acts of mob violence, the Parliament of India included the following provisions in the Bharatiya Nyaya Sanhita, 2023.

Section 103(2) of the BNS

Section 103 of the BNS prescribes punishment for the offence of murder which was defined under Section 101. Clause (2) of Section 103 prescribes punishment for murder if done by five or more persons on the grounds of race, caste or community, gender, place of birth, language, personal belief or any other similar group.

However, there are a few concerns as to the clarity of the language in the above provision. A few concerns are-

The provision did not mention whether the intention to murder on the basis of the victim’s social profile is necessary to be liable for punishment.
The expression “any other similar ground” seems to be wide enough and, hence, creates an ambiguity regarding the scope and ambit of the provision.
It does not specifically mention that this clause relates to mob lynching. Also, it seems as if the provision only provides punishment for murder involving a special fact situation which is an aggravated circumstance and does not specially create a separate offence.

The punishment prescribed is either death penalty or life imprisonment.

Section 117(4) of the BNS

Section 117 prescribes punishment for the offence of voluntarily causing grievous hurt. Clause (4) of Section 117 provides an aggravated circumstance, whose ingredients are-

Accused persons involved in the offence are five or more persons;
All those acted or performed their respective tasks in concert;
Anyone or more persons cause grievous hurt to the victim;
Such offending act is committed on the grounds of race, caste or community, gender, place of birth, language, personal belief or any other similar ground.

The punishment prescribed is either simple or rigorous imprisonment upto seven years and a penalty which will be fixed by the court at its discretion. Here, it is pertinent to note that the punishment for voluntarily causing grievous hurt is the same as the punishment for causing grievous hurt by a mob. This raises doubt on the reason and intention of the legislature behind introducing this separate category of offence.

Conclusion

Mob lynching questions the functioning of the law enforcement agencies in the country. There cannot be a judgement and punishment of a crime by individuals on the street. People do not have the authority to become the guardians of the law and enforce the law according to their will. Everybody has a right to a fair trial and to be considered innocent until proven guilty by the court and, if convicted, shall be awarded punishment as per the judgement of the court based on the aggravating and mitigating circumstances. But killing a person barely on the perception that the individual might have committed a crime is a barbarous act in itself and should be avoided at all times. No individual shall think that he has the power to behave like he is the law and the punisher in himself and this kind of thinking shall not be entertained in a country where the rule of law prevails.

India is facing the problem of mob attacks and lynching and such incidents are increasing year by year. Conscious of this fact, the Supreme Court directed the legislature to insert separate penal provisions to deal with such criminal acts by mobs and prescribe appropriate punishments for the same. The current government, complying with this direction, inserted new sections in the Bharatiya Nyaya Sanhita, 2023. However, proper implementation of preventive measures is vital in a balanced society and for the safety and security of the public. As per the preventive measures, one important measure is that the State and its instrumentalities have to look into the factors causing such incidents and take immediate action. In spite of adopting preventive measures with full force, if the incidents are still happening, then the remedial and punitive measures should take effect, as specified by the Supreme Court. Thus, if these guidelines that were given by the Court in the case of Tehseen Poonawalla were implemented by the governments, both centre and states, with utmost sincerity, then cases of mob lynching would reduce significantly and, subsequently, our country would be free from such commissions.

References

https://www.livelaw.in/top-stories/28-states-have-appointed-nodal-officers-in-terms-of-directions-in-tehseen-poonawalla-judgment-centre-tells-supreme-court-242621
https://p39ablog.com/2023/09/criminal-law-bills-2023-decoded-3-examining-anomalies-in-the-provisions-for-mob-lynching-under-bns-2023/
“The Indian Penal Code” authored by Ratanlal and Dhirajlal.

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Gullipilli Sowria Raj vs. Bandaru Pavani @ Gullipili Pavani (2008)

By

Rachit Garg

-

August 30, 2024

0

This article is written by Sana Virani. In this article, the case of Gullipilli Sowria Raj vs. Bandaru Pavani has been analysed in detail. This case addresses the validity of a marriage under the Hindu Marriage Act, 1955, between a Hindu and a non-Hindu. It highlights various provisions of the Hindu Marriage Act, 1955, which is a comprehensive legal framework for marriages among Hindus.

Table of Contents

Introduction

The Hindu Marriage Act, 1955, is a statute to govern the marriage of a Hindu in India. This Act covers provisions on the validity of marriage as well as various other aspects of marriage, like divorce, maintenance, and custody of marriage. It intends to map out a formal framework offering both rights as well as protection to partners and offspring. The Hindu Marriage Act, 1955, only applies to individuals who are Hindus by birth or converted to Hinduism and includes Buddhists, Jains, and Sikhs. However, this legislation does not apply to Muslims, Christians, or Jews, as they fall outside the provisions of the category of Hinduism and are governed by their respective personal laws. Gullipilli Sowri Raj vs. Bandaru Pavan (2008) is a landmark case heard by the Supreme Court, dealing with the issue pertaining to the validity of marriage between a Hindu and a non-Hindu. This case maps out the applicability of the Hindu Marriage Act, 1955, in today’s legal system in India.

Details of the case

Case name: Gullipilli Sowria Raj vs. Bandaru Pavani
Case no. CIVIL APPEAL NO. 2446 OF 2005
Equivalent Citations: AIR 2009 SC 1085, 2009 (1) SCC 714
Act involved: Hindu Marriage Act, 1955
Court: Supreme Court of India
Bench: Altamas Kabir, Aftab Alam, JJ.
Author of judgement: Altamas Kabir
Petitioner: Gullipilli Sowria Raj
Respondent: Bandaru Pavani
Judgement Date: 4 December, 2008

Background of the case

The appellant, Gullipilli Sowria Raj, a Christian who misrepresented himself as a Hindu, married the respondent, Bandaru Pavani, a Hindu. The marriage was duly registered on November 2, 1996, under Section 8 of the Hindu Marriage Act, 1955. However, the respondent filed a petition for nullity of the marriage under Section 12(1)(c) of the Hindu Marriage Act, 1955, on March 13, 1997, citing the appellant’s misrepresentation of being Hindu.

The respondent filed a petition in the Family Court, which was dismissed, after which the respondent (of the present case) moved to the High Court, where the marriage was ruled void ab initio, which means no legal effect, and treated under the law as if it never existed. The appellant disagreed with the High Court’s order and appealed to the Supreme Court for further proceedings. The main issue was whether a marriage commenced between a Hindu and a non-Hindu could be lawful under the Hindu Marriage Act, 1955.

Facts of the case

The respondent was a Hindu, and the appellant was a Roman Catholic who married her on the October 24, 1996, in a temple by only exchanging ‘Thali’ without any witnesses from either side. The union was legally recognised on November 2, 1996, under Section 8 of the Hindu Marriage Act of 1955. The respondent filed a petition against the Family Court in Visakhapatnam on March 13, 1997, seeking a decree of nullity of marriage under Section 12(1)(c) of the Act. The marriage was also deemed as void on the singular basis that the appellant had disguised himself as Hindu. He not only misrepresented his religion to the respondent but also maliciously concealed his background and faith as a Christian.

The Trial Court quashed his application; subsequently, he proceeded to the High Court, which expressed the view that such marriages were not enforceable under the Hindu Marriage Act, 1955 (herein referred to as the “Act”), rendering them completely void. Dissatisfied with the decision of the High Court, the appellant moved the appeal to the Supreme Court.

Issues raised

Whether a Hindu-Christian marriage is legally valid in accordance with the provisions of the Act?
Whether the Act restrains Hindus from marrying people of a different faith?

Arguments of the parties

On behalf of the appellant, an entirely new argument was put forth, stating that Hindus were not prohibited from marrying people of various faiths under the Act. To aid the Court in reviewing this submission, the Court had asked Mr. U.U. Lalit, a knowledgeable senior advocate, for assistance. First, Mr. Lalit emphasised the Act, 1955, and its sections outlining the prerequisites for a Hindu marriage. “A marriage may be solemnised between any Hindus, provided the following conditions are met, specifically:…” are the first words of Section 5, contending that the word “may” in the opening sentences suggests that the criteria were optional. Consequently, he claimed, the conditions would not inevitably be binding on the marriage consummated between the respondent and the appellant.

In his additional remarks, Mr. Lalit emphasised that Section 5 and Section 11 of the Act, which address null and void marriages, have the following provisions:

Section 5: ln cases where the following provisions stated in Section 5 clauses (i), (iv), and (v) are not met, every marriage solemnised after the effective date of the Act may be considered void and can be annulled by a decree of nullity if petitioned by one party against the other.
Section 11: Mr. Lalit, referring to Section 11 of the Act argued that none of the requirements stated in the facts of the case were satisfied.

Therefore, he contended that the marriage argument was that the marriage between the respondent and the appellant could not be deemed null and void. Instead, he suggested that the marriage might only be considered voidable. However, from the High Court’s analysis, it appeared that the marriage was considered non-existent from the beginning.

Petitioners

To this argument, the appellant’s advocate, Mr. Mukund countered by stating that the header of the Act, “Conditions for a Hindu Marriage,” and the word “may” in the first few lines of Section 5 are deceptive terms. Mr. Mukund specified that the requirements in Section 5 should be seen as discretionary rather than mandatory.

Mr. Mukund further argued that if the word “may” in Sub-section (1) of Section 7 of the Act is interpreted to include the parties to a marriage, it would defeat the legislature’s intention to operate separately. He stated that Section 5 outlines many requirements to be implemented only if the party wanted to do so, and thus Section 11 of the Act, concerning void marriages, would override the restrictions of Section 5.

According to Mr. Mukund, there is no provision in the Act that approves the marriage only between Hindus to make it lawful. He further argued that the respondent, through Section 12(1)(c) of the Act, sought permission to live separately, which the High Court wrongly granted due to its inaccurate interpretation of the section.

Respondent

Drawing the attention of the court to the evidence provided in the case about the marriage ceremony that was conducted between the parties, Mr. Y. Rajagopala Rao, the advocate for the respondent, who is the wife of the appellant, contended that it was relevant to ask if the marriage performed between the duo was a valid Hindu marriage or not.

He noted that this Act aims at consolidating laws on marriage among Hindus, and he further emphasised that it can by no means be in doubt as the language of the preamble of the Act made it clear that the Act and the provisions thereof were meant to apply only to Hindus and to no one else. Section 2(1)(c) also categorically excluded Christians, Muslims, and Jews from the Hindu marriage framework.

He also emphasised in his argument to the Court that various religious groups like Christians, Muslims, and Jews in India are governed by their personal laws as well as their own marriage traditions. In circumstances where individuals from two different religions, like Hinduism and Christianity, wish to marry, the provisions of the Special Marriage Act, 1954, come into the picture, as they validate inter-faith marriages. Hence, personal laws of marriage do not acknowledge other religious groups.

Laws discussed in Gullipilli Sowria Raj vs. Bandaru Pavani @ Gullipili Pavani (2008)

Section 2 of Hindu Marriage Act

The application of the Act is covered in Section 2 of the Act. It contains provisions about the scope and applicability of the Act. Section 2(1) of the Act specifies that the Act applies to any person who is a Hindu in any of its forms and to a person whose parents are followers of Hinduism, Buddhism, Jainism, or Sikhism. It also applies to any person who converted or re-converted to one of these religions.

Section 5 of Hindu Marriage Act

As per Section 5 of the Act, these are the requirements for a lawfully registered marriage:

Neither party has a spouse alive;
Neither party is of unsound mind or suffering from any mental disorder which makes them unfit for the fulfilment of marital obligations;
The bride and groom are 18 years and 21 years of age, respectively;
The parties are not closely related to each other.

This section outlines all the requirements that must be fulfilled by both Hindu partners to have their marriage legally valid.

Section 8 of Hindu Marriage Act

Section 8 addresses the registration of Hindu marriages under the Act. The parties should register their marriage under Section 8 of the Act if they meet the requirements listed in Section 5 and solemnise their union. Through this section, the marriage is formally recognised and gives legal acknowledgement.

Section 11 of Hindu Marriage Act

Section 11 deals with null and void marriages under the Act. It observes that marriage in violation of any terms stated in Section 5 clauses (i), (iv), and (v) will be deemed void. It reiterates that the marriage is invalid or has no legal standing if it breaches the conditions of being within the prohibited relationship, having a living spouse, or either party of unsound mind.

Essentials of a valid marriage under Section 5 of Hindu Marriage Act

Parties to the marriage must be Hindu

Section 5 of the Act highlights the list of requirements for a Hindu marriage, clearly defining that the union of the two parties must be Hindu. In the Yamunabai Anantrao vs. Anantrao Shivaram (1988) case, the Supreme Court restated this precondition and observed that only a marriage between two Hindus can be formally consummated under Section 5 of the Act. Accordingly, the Act of 1955 prohibits a marriage if one or both parties do not practise Hinduism.

Marriage should be solemnised following the customary rites and ceremonies

According to Section 7 of the Act, a Hindu marriage is considered legal only if both parties bind to their customary rites and ceremonies, such as thali and “Saptapadi” procedures. During these ceremonies, when the parties take the seventh step, it signifies the completion of the marriage. These rituals play a vital role in the Hindu traditions and also serve as a formal recognition of the marital bond.

Both parties must be of sound mind

The Act clarifies under Section 5(ii)(a) that both parties to a Hindu marriage must be able to convey their consent to make it legally binding. If one party is mentally handicapped, the other party may declare the marriage void. In Smt. Alka Sharma vs. Abhinesh Chandra Sharma (1991), the husband filed a lawsuit against the lady because her actions and behaviour on the first night were strange, which indicated her incompetence to carry out her marital obligations, after which the Court declared the marriage void.

Marriage must be monogamous

As provided under the Act, specifically Section 5(i), no couple may marry another person if their current partner is still alive. According to the statute, a marriage is considered invalid if, at the time of contracting the marriage, either party had a living spouse. As per this condition, polygamy is prohibited under the Act, and violation of this provision makes the marriage null and void.

Both parties to the marriage must have reached the age of majority

The bride and groom must be at least 18 and 21, respectively, at the time of the marriage, per Section 5(iii) of the Act. In accordance with Section 18 of the Act, individuals who perform this kind of marriage without meeting the legal age criteria may be prosecuted and face fines of up to one lakh rupees, two years in prison, or both. This provision ensures that the parties at the time of marriage have suitable maturity.

Parties to the marriage should not be related as sapindas or fall within the degrees of prohibited relationships

Any marriage between two individuals who bear a biological relationship or are in direct opposition to Section 3(g) of the Act is absolutely void. In other words, the husband and wife cannot be related in any of the prohibited degrees mentioned in the Act or share the same blood relation. It includes relationships like siblings, half siblings, etc. to uphold the social standard and prevent genetic disorders.

Consent obtained through fraud

Recently in Monika Narendra Sharma vs. Muskeshkumar Ramnath Bhagal (2022), the Bombay High Court dissolved a marriage of ten years because the man’s consent was obtained through fraud and concealing material information, which makes the marriage “voidable.” This underlines the prominence of honesty while asking for permission for marriage.

Under Section 5, clause (i) (c), a marriage may be deemed voidable if the petitioner’s assent was acquired by fraud or coercion regarding the description of the ceremony or any other major event involving the respondent. All the incidents and facts that potentially affect a party’s consent to marriage are considered relevant information. However, a mere lie is not the same as fraud, nor does every lie or misrepresentation qualify under the category of consent obtained through fraud.

Judgement in Gullipilli Sowria Raj vs. Bandaru Pavani @ Gullipili Pavani (2008)

In this case, the Supreme Court highlighted the preamble of the Act, which reads as “an act to amend and codify the law relating to marriage among Hindus.” It is coherent from the preamble that the Act was adopted to codify Hindu marriage law. This point of view was also observed in Section 2 of the Act, which addresses the Act’s application and was previously highlighted as well. The Supreme Court also observed that Section 5 of the Act, 1955, specified that two Hindus can get married only if the requirements outlined in the section are met.

The judges validated the appellant’s argument, which stated that the inclusion of the word “may” in the first paragraph of the section did not make the provisions of Section 5 optional; rather, it meant that a Hindu couple cannot be married if the requirements under this section are not met. However, rituals stated in Section 7 of the 1955 Act should be interpreted and followed in reference to Section 5 of this Act.

Marriage between both parties, who are the appellant and defendant in this case, was performed in accordance with Hindu customs and was declared void by the Supreme Court based on the information provided by the appellant in her application under Section 12(1)(c) of the 1955 Act and the appellant’s admission that he was and will continue to be a Christian of the Roman Catholic denomination. Their marriage was neither validated nor applicable to being registered under Section 8 of the Act. The Supreme Court observed that the High Court correctly sustained the respondent’s appeal; its decision didn’t require further intervention.

Rationale behind this judgement

The Court carefully considered the respondent’s arguments regarding the application of the Act, 1955, and this served as a turning point in the Supreme Court’s judgement. The judges highlighted the role of the preamble in understanding the scope of the Act and further emphasised that the Act’s primary goal is to regulate the solemnisation of marriages between Hindus. It also clarifies that the Act’s Section 2, sub-section 1(1)(c) overall application would be limited to Hindus and categorically excludes Christians as well as any other religions.

They also referred to Section 2 of the Act, which covers many aspects about who can be called as a Hindu, and it specifies the following:

An individual who practises Hinduism in any of its various forms or developments, including Virashaivas, Lingayats, or adherents of the Brahmo, Prarthana, or Arya Samaj;
Any individual who practises Buddhism, Jainism, or Sikhism; and
Any other individual residing in the territories covered by this Act who does not practise Islam, Christianity, Parsi, or Judaism, unless it can be determined that, in the case of such an individual, they would not have been covered under Hindu law or any custom or usage as part of that law concerning any matters covered herein.

In this judgement, the Supreme Court thoroughly considered the arguments proposed by both parties as well as the appellant’s acceptance of being a Christian and the other occurrences taken into account, which led to the Court’s agreeing that the marriage was null and void even though it was performed in accordance with Hindu customs.

P. Sivakumar vs. S. Beula

Similar to Gullipilli Sowri Raj vs. Bandaru Pavan, the concerning aspects of the Act, 1955, which are Sections 5 and 12(1)(c), were questioned as well as highlighted in the case of P Sivakumar vs. S Beula (2003). The Madras High Court in P. Sivakumar vs. S. Beula (2003) observed that only with compliance with the mentioned conditions is it possible to formally consummate the marriage. Thus, the Act stresses that a marriage has to fulfil the conditions set in Section 5 of the Act to be considered lawful. Reasons for annulment of marriage are given under Section 12(1)(c) of the Act. It states that, where a marriage has been found to be void, perhaps due to bigamy, deception, or fraud as to religion, it is probably void. In this context, the question arose as to whether the respondent’s statement about her being a Christian as actually belonging to the Islamic religion could qualify as the reason for the nullity of marriage under the provisions of the Act. As far as the Court’s judgement was concerned, it would be a misrepresentation to state a different religion, as it would undermine the basic legal validity of marriage and hence will make the marriage void.

Analysis of Gullipilli Sowria Raj vs. Bandaru Pavani @ Gullipili Pavani (2008)

The important legal concept reiterated in this case is related to the validity of marriages between Hindus and non-Hindus and also the Act’s interpretation of the same. The Court closely observed the facts and details of the case, the applicability of the Act, and its provisions being limited to only Hindus. The appellant argued that Section 5 and the use of the word ‘may’ make the obligations not a mandatory condition to a valid marriage. He used this to explain that under the Act, Hindus can marry non-Hindus since the union can be legally valid, as the obligations are mandatory. The judges of the Supreme Court in this case disagreed with the above and supported the argument of the respondent. The Act adequately defines the provisions that determine the legal marriage and the initial step towards the solemnisation of Hindu marriage, and the Court vindicated the respondent’s reasoning on these points of law. The Supreme Court, through this decision, made an attempt to preserve the traditions and sanctity of Hindu marriages, as the Act clearly specifies a criteria for their validity in Section 5. As per the conditions, both parties shall be Hindu, unmarried, of legal age, mentally sound at the time of marriage, and not in prohibited degrees of marriage.

Conclusion

The Act lays down the prescribed way for a Hindu marriage and has played a crucial role in framing the matrimonial laws for Hindus in India. It covers several issues, like the protection and privileges Hindu communities offer to the couples and their offspring. It has been pivotal in safeguarding the rights of women and ensuring legitimacy as well as inheritance to children born out of marriages. Further, this Act also includes the converts, Buddhists, Jains, and Sikhs. However, it is relevant to note that marriages between people who are followers of any religion other than Hinduism. Muslim, Christian, Parsi, or Jew are excluded from the provision as well as the protection offered by the Act. Each of these religions has its own system of private ordinances governing marriage and related matters. In this specific case, the controversial issues of law discussed are the circumstances of a Hindu marriage to a non-Hindu (a Roman Catholic Christian) being considered lawful under the Act. The analysis and the decision made in this case by the Supreme Court cleared the relation of the Act, which enforces strict legalities to be followed to consider a marriage legitimate as per the Hindu religion. In the judgement in this case, the Court stressed again that the Act, though it elaborates legal provisions for Hindu marriages, particularly here it governs and formalises marriages within the people that follow Hinduism, and there is no provision for marriage between Hindus and people of other religions under the Act, 1955.

Frequently Asked Questions

What is the legal status of marriages between Hindus and non-Hindus according to the judgement?

The Supreme Court in Gullipilli Sowri Raj v. Bandaru Pavan made it clear that marriages between a Hindu and a non-Hindu shall not be in accordance with the Act and shall be considered void. The Act governs marriages between Hindus. In this case, the Special Marriage Act, 1954, addresses and recognises interfaith marriages. The Supreme Court stated the Act’s primary motive is to amend and codify the law relating to marriage among Hindus. Therefore, the applicability of the act, as mentioned in Section 2 of the Act, dictates that parties falling under the provisions of the Act can register their marriage under Section 8. It is also necessary for both parties to come under the applicability of the Act. Then the marriage solemnised between the parties is considered as valid under this Act.

What religions can one marry as per the Act, 1955?

According to the Act, a Hindu can marry a person if they are a Hindu, Buddhist, Jain, or Sikh, and this provision maintains religious homogeneity within marriages. It does not recognise the marriage of a Hindu with a Christian, Jew, Muslim, or Parsi unless they convert to any permitted religion under the Act. However, the conversions made to Hinduism, Buddhism, Jainism, or Sikhism must be genuine and not just for the sake of marriage.

Under what conditions can one seek an annulment of marriage?

As per the Act, 1955, one can seek an annulment if it does not meet the legal requirements of the Act, which make it void, or on specific grounds like the impotency of either party, unsoundness of mind, absence of valid consent, etc. listed under Section 12 of the Act. If the marriage does not meet the legal requirements as per Section 12 of the Act, either party can seek annulment. However, a petition must be filed within a specific time frame from the date of marriage or upon discovering the grounds which are against the requirement of the Act.

What precedent does this case set for future cases involving interfaith marriages under the Act, 1955?

Gullipilli Sowri Raj vs. Bandaru Pavan denotes a significant precedent on interfaith marriages under the Act, 1955. The precedents established under this case are:

Any marriage where one party is Hindu and the other is from a different faith is neither recognised nor valid under the Act;
Misrepresentation of one’s religion for marriage constitutes fraud, which is a valid ground for annulment under the Act.

References

Difference between Khula and Talaq

By

Rachit Garg

-

August 30, 2024

0

Islamic-Law-Law-of-the-Muslim-World-eJournal.-June-14

This article is written by Sowbhagyalaxmi. S. Hegde. This article speaks about khula and talaq, which are distinct methods of divorce in Islamic law. It goes through how these processes are initiated, whether there is consent between spouses, the various compensations involved, the possibility of reversing, and its implications. The discussion also goes through gender roles and Islamic cultural societies. It also looks at the ongoing changes in Muslim personal law.

Table of Contents

Introduction

Divorce in Islamic law is a complex process that has several forms and procedures, reflecting the diverse interpretations and practices within the Muslim world. Divorce in Islamic law has been structured systematically, aiming to address the rights and responsibilities of both spouses within their relationship. Talaq and Khula are the two forms of divorce in Muslim law. Both have different procedures and implications that ensure fairness and also protect individual rights.

Talaq will be initiated by the husband, which gives him unilateral rights to dissolve the marriage by pronouncing the word “talaq.” This can happen in different ways. After uttering talaq, there is a mandatory waiting period (known as the Iddat Period), during which reconciliation is encouraged.

Khula is a form of divorce initiated by the wife seeking divorce from her husband. Where she offers to return her mahr (dower). If the husband agrees to the terms, the divorce is granted.

Understanding these distinctions shows how Islamic law carefully balances the rights and duties of both spouses in the dissolution of a marriage. Talaq highlights the husband’s power to initiate divorce, reflecting traditional roles and responsibilities. In contrast, Khula allows the wife to request a separation when needed, giving her control and protection within the marriage.

Khula

Khula is a form of divorce that is initiated by the wife, in exchange, the wife pays compensation to the husband. It is a significant right that is granted to Muslim women, which allows them to seek a divorce if they are unable to continue the marriage.

When a Muslim woman finds her marriage unhappy, not satisfied or not willing to continue the marriage contract, she has the legal option to dissolve the marriage. This process is known as khula. However, historically, khula has been somewhat restricted within traditional Islamic jurisprudence. The origin of the khula is found in the Quran and Hadith. The Hadith literally provides an example of the khula in the time of Prophet Mohammad. The origin of khula demonstrates that khula is an established mechanism within Islamic law to ensure that a woman is free to dissolve her marriage if she is unhappy or not satisfied.

Essentials of Khula

Offer by wife: In khula, the wife initiates the process by returning the dower or any compensation amount.
Acceptance of the husband: The husband’s consent is very much necessary for Khula because here the wife is seeking a divorce from her husband.
Compensation (Khula’s amount): The wife is expected to pay the compensation to her husband, known as Khula’s amount. The amount here can be a mutual agreement or a court order.
Irrevocability: When the husband accepts the wife’s request for Khula and also receives compensation from the wife, the divorce is considered irrevocable and the couple cannot remarry without a new marriage contract (Nikah).

Procedure to initiate Khula

The first step is taken by the wife by expressing her wish for khula to her husband by stating a valid reason for not continuing the marriage contract.
If the husband agrees to the khula that his wife proposed, then the couple would conclude by negotiating the khula’s amount, also known as the compensation amount, which the wife should pay to her husband.
If the husband initially refuses, then the wife can approach a Muslim judicial authority, also known as Qazi, to mediate and facilitate the khula process.
Reconciliation is initiated by the Qazi after hearing both parties. If the proceedings fail, then the qazi determines the khula’s amount by looking into the wife’s financial capacity and also by hearing the husband’s demands.
Once the compensation amount is agreed upon or paid, the qazi will initiate to dissolve the marriage through the khula process.
Once the khula process is initiated, there is iddat (an observation period), which is approximately three menstrual cycles, or three months for non-menstruating women, before women enter marriage contracts again.

It is important to note that there are different Islamic schools of thought and legal procedures with different procedures and requirements for the khula process. Many Muslim-majority countries have also introduced simplified reforms and regulations to streamline the khula process, ensuring that the principles of fairness and gender equality are maintained.

Differences in Islamic Schools of Thought

Hanafi School: In this school, khula is a mutual agreement, here, the wife offers the compensation, and the husband’s acceptance is required. If the husband refuses the offer, then the wife can seek court intervention.
Maliki School: In this school, the wife can seek khula without the husband’s consent if she can prove that there is harm or dissatisfaction in marriage. Here, the court can grant khulla even if the husband disagrees.
Shafi School: In this school, khula is based on mutual consent. Here, the wife offers compensation and the husband must agree. Court intervention is possible only if there is a dispute.
Hanbali School: This school is similar to Shafi’i School, but in this case, the wife offers compensation the husband’s acceptance is necessary, but the court can intervene in case of disagreement.

Legal Framework for Khula in India:

In India, khula is primarily governed by the Muslim Personal Law (Shariat) Application Act 1937, where Section 2 applies to Muslims and allows them to follow Islamic laws in personal matters, which includes the principles of khula. Additionally, the Dissolution of Muslim Marriages Act, 1939, Section 2(ix) provides women with legal grounds for divorce and it also outlines the procedure for divorce which includes the right to seek khula by stipulating conditions under which a woman can seek dissolution of marriage through legal means.

Process of Khula:

Application: The process begins with a woman filing a petition for khula before a family court or a Shariah court. Here, the petition should include the reason for seeking Khula and in agreement, it should also mention the return of Mahr.
Return of Mahr: The woman here must return the Mahr or any equivalent, as it is a process of khula. Then the court assesses whether the amount is fair or if there is any additional compensation.
Judicial Review: The court reviews the applications so that it ensures that all the conditions here are met in accordance with Islamic principles. The court here also provides one last chance to reconcile the parties through mediation before granting khula.
Decree: If the court is satisfied with all the application processes, it issues a decree of khula, thereby officially dissolving the marriage.

Reforms and Challenges:

Reforms:

Judicial Recognition, where the Indian courts recognize khula as valid, the husband’s consent is not mandatory if the wife has a valid ground for divorce.
The codification here aims to provide clear guidelines and ensure legal protection for women seeking divorce in the form of khula.
Many NGOs and legal aid services are now spreading awareness about khula and it also helps women navigate the khula process.

Challenges:

Divorce stigma can lead to social pressure where the woman is forced to remain in the marriage, making it difficult to exercise their right to khula.
Many women are unaware of their rights to Khula or have been misinformed about the Khula procedure, which discourages women from seeking divorce.
Judicial delay and inconsistentness across a region complicate the khula process.
Financial dependence on the husband often discourages women from seeking khula.
Religious authorities may impose restrictive conditions or discourage divorce.

Reforms and Regulations in Different Countries:

Egypt: Egypt has been an Islamic state since 1980. Here, the legal system has streamlined the khula process through reforms in the 2000s, allowing women to obtain khula more easily by petitioning the court and returning the mahr without requiring the husband’s consent.
Pakistan: Pakistan is an Islamic state it is officially known as the Islamic Republic of Pakistan. Even Pakistan has introduced legal reforms to simplify khula, allowing women to file for khula in family courts. The process ensures that women can obtain a divorce without prolonged litigation.
Indonesia: Indonesia is not declared a Muslim state, but 80% of the population is Muslim, which was identified in 2023. Even in this Muslim-majority country, the process of khula is regulated by the compilation of Islamic law, which simplifies the procedure for women to seek divorce, emphasizing fairness and gender equality.
United Arab Emirates (UAE): The process of khula in the UAE is regulated by personal status under Federal Law No. 28 of 2005. Under this law, it allows women to seek khula by applying to the Shariah court. Here, the process requires the woman to return the mahr (dowry) to the husband, here, it also allows some flexibility. UAE courts have aimed to make the process smoother and more accessible for women, where there is still a judicial review and, in some cases, a negotiation.
Jordan: In Jordan, Khula is governed by the Personal Status Law of 1976. Women seek khula by filing a petition in the Shariah Courts. Jordan allows a woman to return the mahr without the husband’s consent, but here women are required to return the mahr, sometimes along with additional compensation.
Saudi Arabia: Saudi Arabia follows a strict dedication to Hanbali law, which shapes its approach to Khula and is regulated by the process of Saudi Arabian Personal Status Law. In Shariah courts, women can apply for khula, but the process is subjected to judicial discretion and here the woman is required to return the mahr. Here, Saudi courts provide a thorough review, although the process can sometimes be lengthy.
Qatar: In Qatar, khula is governed by Qatar Personal Status Law, which is aligned with Shariah Principles. Women usually seek khula through family courts; here, the women must return the mahr. The legal system works to streamline the process to some extent, even though there are legal procedures involved to guarantee justice and adherence to Islamic principles.

Talaq

Under Islamic law, a husband has a unilateral way to end their marriage and there are different forms of talaq. The ‘talaq’ means ‘release’. The husband has to inform his wife that he is willing to end the marriage contract. The marriage is immediately terminated by pronouncing the talaq, but it has a waiting period of three months, known as iddat, before it is completely terminated. It is a time to reconcile or rethink the whole process, which can make a marriage valid. As it is a waiting period, the wife cannot remarry until the waiting period is over. This is to ensure that she is not pregnant. There are certain conditions to fulfil the talaq and to consider it valid. They are required to make sure that divorce is not taken in haste.

Conditions for Talaq

The following are the main conditions for a valid talaq:

Healthy mind and capacity to act legally:

The husband must not be in an unsound mind and he should have the capacity to act legally when pronouncing the talaq.
When a talaq is uttered by a person, he should not be under pressure or unable to think, which is generally considered invalid.

Purpose and clarity:

The husband must be very clear in his intention to dissolve the marriage while pronouncing the talaq.
There should not be any doubt while pronouncing the talaq.

Purity Period:

According to the majority of Islamic schools of thought, talaq should be pronounced during the tuhr period, which is the period between two menstrual cycles when the wife is not menstruating and has not had sexual intercourse with her husband.
This condition is meant to establish the paternity of any potential pregnancy and to avoid confusion regarding the waiting period (iddat) for the wife.

Presence of Witnesses:

Under Sunni law, no witnesses are required to be present at the time of pronouncing talaq, while Shia law requires the presence of two male witnesses or one male and two female witnesses for the validity of the talaq.
The witnesses must be in a state where they can hear and understand the pronunciation of Talaq.

Lack of menstruation:

During the wife’s menstrual period, talaq should not be pronounced as it is considered an impure state.
This condition of the wife is known as the tuhr period and it aims to avoid confusion regarding the waiting period (iddat).

Undue Influence:

There should not be any coercion or undue influence on the husband while pronouncing the talaq.
When talaq is pronounced under coercion or undue influence, it is generally considered invalid.

Ability to revoke:

The husband has the option to revoke talaq during the wife’s waiting period, also known as iddat, if the couple wishes to reconcile, as seen in most Islamic schools of thought.
The revocation made here must be clear, and the couple must resume living together as husband and wife.

Types of Talaq

There are different types of Talaq, they are:

Talaq-e-Sunnat

Talaq-e-Sunnat is a revocable form of talaq that provides a specific time within which the decision can be reversed. The pronouncement of talaq does not become final at once there is always a possibility of settlement and compromise. These procedures may include counselling, arbitration, and a waiting period known as Iddat. Talaq-e-Sunnat is further divided into two parts, which are Tataq-e-Ahsan and Talaq-e-Hasan.

Talaq-e-Ahsan (most approved form of talaq)

Talaq-e-Ahsan is considered the most proper way of dissolving a marriage in the Quran. When the wife is not in her menstruating period, the husband is required to pronounce talaq in a single sentence and there must not be any sexual intimation with her during the noted period. When the talaq is announced, the couples are required to observe the iddat period, which is three menstrual cycles or three months for non-menstruating women. During the iddat period, the husband and wife are encouraged to maintain their marriage contract so that there will be a reconciliation. If reconciliation fails, the divorce becomes effective after the completion of the iddat period.

Talaq-e-Hasan (good mode of Talaq)

In this form, the husband pronounces talaq to his wife three successive times during the period of tuhr (a period when a woman is not menstruating). Once the husband pronounces talaq in the first month, during the waiting period, there is an opportunity to reconcile between the couple. If the couple does not reconcile during this waiting period, then he continues to pronounce talaq in the following months. If this is observed continuously for three months, then the divorce becomes irrevocable. This method involves a lot of time so that couples can think about reconciliation or the dissolution of a marriage.

Talaq-e-Biddat (a disapproved form of talaq)

This form of talaq, also known as triple talaq or instant talaq, has been widely criticized and reformed in many Muslim-majority countries. In this form, the husband pronounces the word “Talaq” three times in a single utterance or a single tuhr period, without giving any opportunity for reconciliation. The divorce becomes irrevocable immediately after the pronouncement, regardless of the wife’s menstrual status or the possibility of reconciliation. This form is seen as arbitrary, unilateral, and against the spirit of Islamic teachings on divorce, which stress reconciliation and gradual separation. In various countries, including India, the validity and legal status of Talaq-e-Biddat have been discussed. In 2017, the Supreme Court declared that instant triple talaq is unconstitutional and illegal in the case of Shayara Bano vs. Union of India & Ors. (2017). Following this, the Government of India banned triple talaq in July 2019.

Ila

In this type of talaq, the husband takes the oath (ila) that he will not have any sexual relations with his wife for a determined period, which cannot be exceeded by four months. This is a period where the husband and wife are expected to reconcile and resume conjugal relations. If the husband has a sexual relationship with his wife within the specified period, the marriage contract remains valid, and if the husband does not resume relations within the specified period, the marriage is automatically dissolved after the expiration of the fourth month.

Zihar

This form involves the husband comparing his wife to a prohibited woman (e.g., his mother or sister) through specific words or implications, which is considered a grave sin in Islam. At this moment, the husband is directed to perform certain compensation to continue the marriage, this can be fasting for two consecutive months or feeding poor people in certain numbers. If the husband fails to do it, then the marriage is dissolved.

It’s important to note that while all these forms of talaq are recognized in Islamic law, many Muslim-majority countries have reforms and regulations to discourage or prohibit practices like instant triple talaq. These reforms aim at gender equality, personal freedom, and the requirement of fairness in the divorce process.

Difference between Khula and Talaq

Khula and Talaq are distinct methods of divorce in Islamic law, each with unique procedures, initiators, and implications.

Sl.No.	Elements	Khula	Talaq
1	Initiation	It is initiated by the wife due to dissatisfaction with the marriage and it should have the consent of the husband.	It is initiated by the husband and it is a unilateral right, i.e., consent from the wife is not necessary.
2	Process	The wife gives a return of her dower (Mehr), and in exchange, she proposes a divorce from her husband. If the husband disagrees, then the wife approaches an Islamic court. The marriage is dissolved once the husband agrees.	The husband pronounces the divorce by a particular standard. There are different types of talaq and the husband can pronounce a talaq in any of the forms.
3	Consent	The consent of a husband is very important, if there is no consent from a husband, then judicial consent is mandatory.	As it is a unilateral right, the consent of the wife is not necessary.
4	Implications	It highlights the wife’s right to seek a divorce, where there can be involvement of mediation or involving court to ensure fairness to the husband by returning the dower or in another way paying the compensation.	It enhances the husband’s unilateral power to dissolve the marriage, which involves a speedy process without a mutual consent agreement. However, the iddat period is observed for potential reconciliation and to see that the wife is not pregnant during the prescribed period.

By understanding the difference, one can understand khula and talaq, which differ in their dynamics and legality and reflect the duties and responsibilities of both spouses in Islamic martial law.

Landmark cases related to Khula and Talaq

In Islamic law, khula and talaq are two different ways to dissolve a marriage. Khula is the woman’s right to seek divorce, which involves a mutual agreement, but the husband’s right to dissolve the marriage unilaterally is known as talaq. Here are a few landmark cases related to talaq and khula.

Shamim Ara vs. State of U.P. (2002)

Facts: In this case, Shamim Ara, the petitioner, challenged the validity of the talaq, which was pronounced by her husband, arguing that it was arbitrary and not in compliance with the Quranic injunctions. The talaq was pronounced by the husband unilaterally without any attempt at reconciliation.

Issues: Whether the unilateral pronouncement of triple talaq is valid under Muslim personal law and whether it is protected under freedom of religion under Article 25 of the Indian Constitution.

Judgment: The court observed and said that triple talaq should be avoided to maintain the true spirit of Islam. It also said that there could be a more progressive and rational interpretation of the practice and called for adherence to the Quranic procedure of reconciliation.

Danial Latifi & Anr vs. Union of India (2001)

Facts: In this case, the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act 1986 was challenged, particularly considering the maintenance rights of divorced Muslim women beyond the iddat period.

Issues: Whether the Act’s provisions concerning maintenance were unconstitutional, and what if they protected the financial rights of divorced Muslim women?

Judgment: The Supreme Court said that the husband is liable to provide maintenance to his wife if she is unable to maintain herself even beyond the iddat period. This case focused on the financial implications of a unilateral right of the husband where the women are affected and it also urged for the protection of divorced Muslim women.

Moonshe Buzul-ul-Raheem vs. Luteefut-oon-Nisha (1861)

Facts: In this case, Luteefut-oon-Nisha filed a suit against her husband, Moonshe Buzul-ul-Raheem, seeking her rights of dower (dyn-mohr), which were due upon the dissolution of marriage. Moonshe claimed that Nisha had not only signed the documents that released him from the obligation but also that she had agreed to a divorce through these documents. The husband argued that these documents, an “ikrarnamah” (declaration) and a “kaboolnamah” (acceptance), meant that his wife had fortified her rights to claim her dower. Nisha argued that her husband had confirmed the divorce, and thus she should have a dower because these documents were obtained under pressure.

Issues

Whether the “ikrarnamah” and “kaboolnamah” documents are valid?
Whether the documents effectively waive Nisha’s right to the dower?
Whether a valid talaq (divorce) was proven, which would impact the dower entitlement?
Whether the validity of claims made under pressure and their effect on Nisha’s right to receive the dower?

Judgment: The Court ruled that the documents presented by the Moonshe, “ikrarnamah” and “kaboolnamah,” were not sufficient to disregard Nisha’s right over the dower unless the husband could prove that they were properly executed without any pressure. As divorce (talaq) was proven to be valid, the wife is entitled to her dower. The court also highlighted that in the context of khula, any documents signed under pressure or any coercion do not override the right to dower if divorce is declared.

Shayara Bano vs. Union of India (2017)

Facts: In this case, Shayara Bano, the petitioner, challenged the constitutionality of instant triple talaq (talaq-e-Biddat), arguing that it violated her basic fundamental rights.

Issues: whether instant triple talaq is unconstitutional and violates the fundamental rights of Muslim women.

Judgment: The Supreme Court in this case held that instant triple talaq was unconstitutional and violated the basic fundamental rights of Muslim women, which include Article 14, which says the right to equality, Article 15, which is the prohibition of discrimination, and Article 21 i.e., the right to life and personal liberty. The court said that such practice is not an essential part of Islam, hence it cannot be protected under religious freedom. .

These cases have been marked as landmarks as they brought some reforms to Muslim personal law in India. These cases sought to balance religious practices with constitutional principles of gender equality, human rights, and personal liberty.

Xxxxxxxxxx vs. Xxxxxxxxxx ( 2021)

Facts: In this case, the Kerala High Court reviewed K.C. Moyin vs. Nafeesa & Others (1972) for the Khula in 2021 when the Muslim woman unilaterally divorced her husband. The husband challenged the divorce decree, arguing that the khula requires the consent of the husband, that it was absent in this khula and that the court should not grant the divorce based on the khula without the husband’s consent. The High Court, however, acknowledges the fact that Khula is recognized by Islamic law as a valid form of divorce, where the woman ends her marriage by returning her dower to her husband.

Issues: Whether a Muslim woman has the absolute right to unilaterally invoke Khula without her husband’s consent.

Judgment: The Kerala High Court ruled that Khula is an absolute right that is granted to Muslim women by the Quran. The court also stated that a Muslim woman can unilaterally divorce her husband through Khula without his consent by returning her dower back to her husband. The court highlighted that the khula’s right would be meaningless if she needed a husband’s consent for divorce. This judgment overturned a 1972 ruling that had needed the husband’s approval for Khula, confirming that Muslim women have the independent right to seek divorce under Islamic law.

Conclusion

Khula and talaq, which are recognized by Islamic law as forms of divorce, still differ tremendously in their consent, initiation, compensation, reconciliation, and some legal implications.

Talaq is a form of divorce that is initiated by the husband without the consent of the wife. It is a unilateral right to dissolve the marriage. Khula has the right of a wife to dissolve the marriage, but here she needs to get the consent of the husband, and here she returns her mahr or pays some compensation. Talaq, in some cases, was a revocable one, but even though it has a form of irrevocability, it all depends on the specific conditions. Whereas khula is only in form, i.e., irrevocable when the husband accepts the wife’s intention of divorce by receiving the compensation.

Talaq has been largely criticized as it has the power to be unilaterally made by the husband, which violates the rights of the wife. Whereas, in khula, the wife has a right to divorce but with the husband’s consent, and in some cases, even consent is not needed but still, it is not unilateral, and here the wife pays the compensation. In recent years, many Muslim-majority countries have noted the need for gender equality and personal liberty, along with the security of life. They have introduced reforms and regulations to balance these divorce practices. The change aims to curb the unilateral right to divorce and give an equal opportunity to both spouses to seek divorce mutually.

Talaq and khula reflect the complex nature of the religious traditions, the way the legal interprets the forms and the changing norms of a society that focuses on gender roles and their rights within the context of marriage and divorce in Islamic jurisprudence.

Frequently Asked Questions (FAQs)

What is the primary difference between Khula and Talaq?

Talaq is a divorce initiated by the husband, where he unilaterally pronounces divorce, whereas khula is initiated by the wife, who seeks divorce by offering compensation (mainly the return of her mahr) to the husband.

What is the waiting period (iddat) for Khula and Talaq?

The waiting period (iddat) for both khula and talaq is usually three menstrual cycles or until the birth of a child if the wife is pregnant. This period ensures clarity regarding paternity and provides time for potential reconciliation.

Is talaq always irrevocable?

No, talaq can be revocable or irrevocable. revocable talaq (Talaq al-Raj’i) allows the husband to take back his wife during the iddah period without a new marriage contract. irrevocable talaq (Talaq al-Ba’in) means the divorce becomes final after the iddah period and reconciliation would require a new marriage contract.

Can a husband force a wife to accept khula?

No, khula must be initiated voluntarily by the wife. It is her right to seek divorce by offering compensation to her husband. Coercion undermines the validity of the Khula process.

What happens if the husband does not agree with Khula?

If the husband does not agree to khula, the wife can appeal to an Islamic judge. The judge will review the case, and if the grounds for khula are valid, he can grant the divorce.

Is the mahr always returned in khula?

Typically, the wife offers to return the mahr as compensation in khula. However, the specific terms can be negotiated, and the compensation might not always be the exact mahr amount but something mutually agreed upon by both parties.

What is Triple Talaq?

Triple talaq (Talaq-e-Biddat) is an instantaneous form of divorce where the husband pronounces “talaq” three times in one sitting, leading to immediate and irrevocable divorce.

How does khula reflect the rights of women in Islamic law?

khula empowers women by giving them the right to seek divorce when they find the marriage weak. It ensures that women are not trapped in unhappy or harmful marriages, thus protecting their rights and well-being within the framework of Islamic law.