This article has been written by Ronak Pattanaik, KIIT Law School, Odisha, and has been co-authored by Shriya Salini Routray from KIIT Law School, Odisha.
Table of Contents
Introduction
The Central Government (CG), through the Ministry of Finance and Ministry of Corporate Affairs, has brought about certain significant amendments to the capital market regime to enable the securities of companies to get listed on international exchanges. The initiative comes after previous efforts that led to the Companies (Amendment) Act 2020, which was passed on September 28, 2020. It provided for the direct listing of prescribed classes of securities of public companies on the stock exchanges in permissible foreign jurisdictions, subject to compliance with the provisions of the Indian Companies Act, 2013 and the Securities and Exchange Board of India Act 1992 (SEBI Act) and rules and regulations made thereunder. The amendment for this is made specifically by Section 23 of the Companies Act, 2013. However, so far there have been no regulations for such listing in any of the foreign jurisdictions, as a result of which the same can be raised to issue securities by companies in the form of depositary receipts (DRs) for the purpose of raising funds abroad. However, this process was very tightly regulated, and only a few companies ended up raising money this way. The DR holders have no voting rights vis-à-vis the equity shareholders. On 24th January, 2024, such changes were notified by the Ministry of Finance via Notification S.O. 332(E) amending the Foreign Exchange Management (Non-debt Instruments) Rules 2019 (NDI Rules).
Subsequently, the Ministry of Corporate Affairs (MCA) has notified the Companies (Listing of Equity Shares in Permissible Jurisdictions) Rules, 2024 (LEAP Rules). Both rules currently identify the International Financial Services Centre in India (GIFT City) as the permissible jurisdiction, along with India International Exchange and NSE International Exchange as permissible international stock exchanges. The regulatory changes are a crucial step in providing Indian companies with access to global capital markets and flexibility in raising funds. Through this blog, the author aims to address the regulatory aspects of listing the securities of a company on international exchanges.
Listing of securities and mode of lisiting under direct lisiting scheme
The amendment introduced Schedule XI to the NDI Rules 2019. Schedule XI outlines the direct listing scheme, encompassing the framework for listing the equity shares of public Indian companies on international exchanges. It is quite evident that both the direct listing scheme as seen in Para 1 to Schedule XI and the LEAP Rules restrict the listing of classes of permissible securities to equity shares only. Hence, preference shares and debt instruments can’t be listed on international exchanges. The equity shares can be issued and listed either by the company or by the existing shareholder themselves on the international exchanges and it is a mandate that the equity shares must be in dematerialised form.
This limits the listing to only equity shares on international exchanges and restricts companies from listing preference shares or debt instruments, which may impede companies from effectively managing their finances and attract a diversified class of investors. Such restrictions can eventually reduce firms’ possibility to diversify their risk and may affect market liquidity. All in all, limiting the availability of some of the types of securities that can be issued leaves fewer options for companies looking to raise funds, hedge risk, or be listed abroad.
Compliances for permissible shareholders
Para 2 to Schedule XI defines a “permissible holder” as an individual holding equity shares in a public Indian company listed on an international exchange, excluding Indian residents. This implies that persons resident in India are not qualified to hold shares listed on international exchanges. Nevertheless, citizens or entities incorporated in countries that share a land border with India require the CG’s approval to hold shares listed on such exchanges. The permissible holder is required to adhere to the Foreign Portfolio Investment norms (FPI norms) outlined in Schedule II of the NDI Rules. The Indian company must disclose the compliances that need to be obliged by the holder in its offer document for the sake of investor awareness. Voting rights may be exercised directly by the permissible holder or their custodian, on instruction from the holder as stated under Paragraph 5 to Schedule XI. The investment allowed for the permissible holder is restricted to below 10% of the total paid-up equity capital on a fully diluted basis under FPI Norms.
Eligibility criterias for public Indian company
Paragraph 3 to Schedule XI states certain conditions for public Indian companies to list their securities on international exchanges. Firstly, the company, its promoters, and its directors, or, in the case of equity shares offered by the existing shareholders, the shareholders themselves, are not debarred from accessing the capital market. Secondly, none of the promoters or directors are associated with a company that is debarred from accessing the capital market. Thirdly, a pre-requisite that the company, along with its promoters and directors, have obtained a standing of non-wilful defaulter as well as non-fugitive economic offender for the sake of safeguarding the interests of the investors and overall market stability. Fourthly, the entity is not subject to any inspection or investigation under the Companies Act 2013. Restrictions related to debarment do not apply to existing shareholders or entities previously debarred from accessing the capital market if the period of debarment is already over at the date of listing on international exchanges.
Offering of securities by the listed public Indian companies is also subject to certain norms, as framed by the Securities & Exchange Board of India (SEBI). LEAP Rules are primarily applicable to the unlisted public companies and to listed public companies, subject to the requisite that it has obliged with other regulations framed by SEBI. SEBI is yet to release any such norms to be complied by listed public companies. Both the listed as well as unlisted public Indian companies also have to comply with laws stated in Para 4 to Schedule XI to NDI Rules including but not limited to the Securities Contracts (Regulation) Act 1956 , the SEBI Act, and the Prevention of Money- Laundering Act 2002.
Rule 4 of LEAP Rules delineates that unlisted public companies without partly paid-up shares may issue equity shares for listing in permissible jurisdictions. This provision extends to facilitating the offer for sale of equity shares by existing shareholders. In adherence to this rule, an unlisted public company shall promptly submit the prospectus via e-Form LEAP-1 within seven days of finalisation, accompanied by the requisite fees, in the designated exchange. Following successful listing, the company is obligated to comply with Indian Accounting Standards, as stipulated in the Companies (Indian Accounting Standards) Rules 2015, along with any other pertinent standards.
Companies not eligible for listing
Rule 5 of the LEAP Rules lists out certain entities that are not eligible to offer their securities on permissible exchanges. These include companies registered under Section 8 or declared as “Nidhi,” those limited by guarantee with share capital, entities with outstanding public deposits, those with a negative net worth, and companies that have defaulted in payment obligations to any public financial institution, non-convertible debenture holder, or secured creditors. Ineligibility also extends to companies involved in winding-up or insolvency proceedings and those failing to file annual returns or financial statements within the specified period.
Pricing of securities offered
Para 6 to Schedule XI to NDI rules addresses pricing considerations for the issuance of equity shares by listed companies or existing shareholders on the permissible Stock Exchange. In the case of an initial listing of equity shares by a public, unlisted Indian company on an international exchange, the price determination shall be as per the book-building process as allowed by the respective international exchange. The price set through this process should not be lower than the fair market value. Where the equity shares are listed on a recognised domestic exchange, the price of such equity shares should not be lower than the price applicable to a corresponding mode of issuance to domestic investors under the relevant laws. The pricing guidelines completely depend on whether the company is listed or is an unlisted public Indian company. In the case of the listed company, the price of the securities is fixed on the basis of bidding price and demand by the permissible holders.
Way forward
Both the LEAP and NDI rules permit listing of the equity shares on permissible stock exchanges in IFSC but remain silent on regulations regarding other international exchanges. It seems that the initiative was undertaken to contribute to the overall development and attractiveness of GIFT-IFSC as an international financial services center. The unified regulatory authority, the International Financial Services Centres Authority (IFSCA), has played a crucial role in creating a conducive regulatory environment for GIFT-IFSC, ensuring its alignment with global standards and facilitating the smooth flow of global capital into India. As SEBI finalises operational guidelines and companies explore the opportunity to list on international exchanges, the impact of this policy initiative on the Indian capital market will unfold, shaping the future dynamics of cross-border capital flows and global investment in Indian companies.
References
Official Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii), No. 123, dated 24th January 2024.
This article is written by Shreeji Saraf. This article is about the case of Suman Kapur vs. Sudhir Kapur (2009) 1 SCC 422, which in turn further provides an understanding of the facts, what were the issues raised, judgement of the court, arguments that were presented by both the parties and it highlights what were legal aspects involved in the case. In addition, it further goes on to discuss what are the different perceptions of cruelty.
Table of Contents
Introduction
The case of Suman Kapur vs. Sudhir Kapur (2009) highlights the concepts of cruelty. In this particular case, the husband, Sudhir Kapur, is establishing that the acts that were committed by the wife, Suman Kapur, in relation to the termination of pregnancy without the consent of the husband amounts to mental cruelty. Cruelty can either be mental or physical cruelty. This totally depends and varies on the facts and circumstances of cases. The act of cruelty is not compulsorily intentional, and it can be unintentional. The important aspect that the current case deals with is the significance of mental cruelty, and the court, in regard to this, has highlighted various judgements that deal with cruelty. It has been noted that the concept of cruelty keeps on changing with time.
Details of the case
Name of the Appellant: Suman Kapur
Name of the Respondent: Sudhir Kapur
Citation of the case: (2009) 1 SCC 422
Name of the Court: Hon’ble Supreme Court
Hon’ble Bench: C.K Thakker and D.K. Jain, JJ.
Disposition: Allowed
Judgement passed on: November 7, 2008
Background of the case
The appellant in this case, i.e., the wife Suman Kapur had been aggrieved by the decision that was passed by the Trial Court and the High Court. She had filed an appeal to the Hon’ble Supreme Court in this regard. The Trial court had passed the decision in the favour of the husband, granting him the decree of divorce on the grounds of mental cruelty caused by the wife. Suman was dissatisfied with the order passed by the Additional District Judge, Delhi, and the High Court, which consequently led to the filing of this appeal before the Supreme Court.
Facts of Suman Kapur vs. Sudhir Kapur (2009)
The facts of the case are that Suman Kapur is the appellant and Sudhir Kapur is the respondent in the current case. The appellant and respondent married each other on 04.03.1984 as per the Hindu rites and rituals and the marriage between the parties took place in Delhi. Both parties had been acquainted with each other since 1966 and were childhood friends. After studying in the same school, both the appellant and respondent grew very close to each other and made the decision to enter into a matrimonial relationship. Being an intercaste marriage there were several objections by the parents of both the parties but in the end, they agreed. The appellant and the respondent didn’t have any child born out of the said wedlock. The appellant had not only obtained a Lalor Foundation Fellowship of the United States of America but also had an outstanding academic record. The mentioned award was awarded to scientists who had an excellent and marvellous performance in the field of research. As mentioned by the appellant during her marriage she was employed in the Department of Biochemistry at the All India Institute of Medical Sciences (AIIMS) and was doing her PhD alongside.
A month after marrying, in 1984 she got pregnant for the first time but as she was being exposed to harmful radiation she aborted the child. This act was done without the knowledge and consent of the husband. But later the appellant argued that the act of abortion was conducted with the knowledge and consent of the husband. Again in 1985, she became pregnant for the second time but this pregnancy even led to abortion on the grounds of acute kidney infection. Even this act of abortion was done without the consent of the husband but the wife argued and contended the same as she had done in the previous one. In 1989 when she conceived for the third time, this time she suffered a natural abortion. In 1988 both the respondent and appellant went to the USA, where she was awarded an award but she couldn’t accompany the respondent back as she had to move to Kansas City.
The respondent presented his case and mentioned the facts that should be taken into account. According to him after the marriage had taken place there was a certain change of attitude and conduct on the part of the appellant towards her husband and his family members. He contended that he was completely kept in the dark and had no knowledge about the pregnancy of the appellant at the time of termination of the pregnancy. He stated that he and his parents had been completely deprived of the joy of fatherhood and grandparenthood, respectively. In addition to this, the husband added that there were several occasions on the part of the appellant where she had humiliated the respondent’s parents.
When the case was being tried before the Trial Court, the husband alleged that the wife had not taken any consent or even informed about the abortion or the miscarriage to him. According to him, the appellant’s main focus was only her career and nothing else. She had even humiliated the members of the respondent’s family and treated them with cruelty.
Further, the appellant, in several circumstances, had affirmed that her only priority was her career and not the matrimonial relations. She had clearly expressed her disregard in becoming a mother at the cost of her career. In addition to this, she added that the respondent could marry someone else, and she wouldn’t have any objection to it. Further, the wife had sent a notice to the husband mentioning that both the appellant and respondent should separate from each other. In doing so, she would completely focus on her career, and the respondent would get a chance to fulfil the wishes of his parents.
In answer to the allegations made by the husband above, the wife completely denied all the allegations and objections. As per the wife, she had tried her best to please the respondent and his parents, and for the same, she had even left her job in Delhi. She was employed and well-educated, but this does not indicate her disinterest in maintaining marital relationships. When she became pregnant for the first time, she was really happy, but due to unforeseen circumstances and situations, she was forced to abort the child with her husband’s knowledge and consent. According to her, the husband, instead of being happy and proud of the wife, was completely jealous of seeing her achieve the award. She submitted that the petition should be dismissed, and the husband was not entitled to any claim or relief.
Trial Court’s decision
After taking into consideration all the facts the Trial Court decided that the husband couldn’t seek divorce on the ground of desertion. According to the court, it has been proved that the wife had executed cruelty on the respondent and his family members. As per the court, the husband was not informed about the termination of pregnancy at both times, and when she had suffered a natural abortion, she didn’t inform the same to the husband. The husband had been completely denied his conjugal rights, and this amounts to mental cruelty. The court had made a reference to the letters and notices sent to the husband by the wife as acts of showing no interest in complying with her marital obligations. The court had even referred to the diary of the wife which clearly indicated that she was interested in her career only.
As per the court, for wife, her career was of utmost importance and not the matrimonial obligations. The Trial Court passed the decree of divorce stating that mental cruelty has been exercised by the wife towards the husband and his parents and, therefore, he is entitled to divorce.
High Court’s decision
Wife being dissatisfied with the order passed by the Trial Court, preferred an appeal to the High Court of Delhi. The High Court after considering all the evidence on record affirmed the order passed by the Trial Court. This order passed by the High Court had been challenged in the present petition.
There are some of the important findings related to the judgement passed and they are stated as follows:-
On noticing the facts of the case, the Trial Court established that the wife was only focused on her career and that she had no importance in the matrimonial obligations. The evidence regarding this was submitted by the mother-in-law of the appellant (respondent’s mother). Further, it was established that the wife had failed to maintain her matrimonial relationship and conjugal rights. Both the High Court and Trial Court were of the opinion that the act of cruelty had been established by the wife against the husband after taking into account the evidence presented by the husband.
Further, the High Court had established that the letters that were sent by the appellant clearly indicated that she was not concerned about the marriage and was completely determined to seek divorce. She was even avoiding staying together with her husband and establishing a matrimonial relationship. In addition, the High Court further noted that when a notice was sent to the husband, the wife had contended that the husband was married to another woman in the USA. This contention was based on the evidence that the husband had mentioned the social security number of his wife in his income return but the social security number did not belong to him but to some lady in America. In reply to the above-mentioned contention, the husband said that it was a typing error and mistake, but the High Court made a point here and mentioned that the wife had gone to such an extent that she was making a serious allegation against his husband.
The High Court even noticed that the wife herself had admitted that her primary focus is career as she had been independent since 1979 and wanted to continue it like that only. It has been established before the court that the wife, in her personal diary and various letters, had mentioned her disinterest in the homely affairs and matrimonial obligations, and she has even mentioned the respondent’s parents as ghosts.
As per the High Court, the husband had tried all the measures in his power to save the marriage; he had even tried convincing his wife but his wife was really adamant regarding her career only.
Issues raised
Whether the acts executed by the appellant constituted mental cruelty?
Whether the respondent was entitled to a decree of divorce?
Arguments of the parties
Appellant
The counsel for the appellant argued that the Trial Court and Delhi High Court had made mistakes in passing the judgement of the decree of divorce to the husband. They further contended that the courts shouldn’t have passed the judgement of divorce in favour of the husband. The grounds for divorce were the mental cruelty exercised by the wife towards the husband. The High Court had not taken into account the allegation that was related to the termination of pregnancy where the wife had terminated the pregnancy without the consent of the husband. If the High Court had not taken this allegation into consideration, the decree of divorce couldn’t have passed on the grounds of mental cruelty. They further, in their defence, added that even if the court is considering or taking into account all the allegations and objections made by the husband, these all are part and parcel of the marriage life of a couple. This can’t fall under the provision of mischief of clause (i-a) of subsection (1) of Section 13 of the Act, and the order passed by the Trial Court and the Delhi High Court needs to be revoked or set aside.
The counsel had further claimed relief for the appellant. The relief was being claimed on the fact that the respondent had married again and this act of marriage was done before the period of filing for special leave to the Hon’ble Supreme Court. Not only this a child was to be born from the said wedlock.
Respondent
The respondent contended that the Trial Court, after taking into consideration all the evidence presented by both parties, came to the conclusion that considering the acts that had been exercised by the wife towards the respondent and his family, it simply constituted acts of mental cruelty. Keeping this in mind, the Trial Court had allowed the claim of the husband. The High Court was of the opinion that even taking into account all the evidence, except the illegal termination of pregnancy by the wife without the consent of the husband, considered all the other acts on record that constituted mental cruelty. They, in addition to this, contended whether the appellant had a right to file an appeal under Article 136 of the Indian Constitution.
Earlier, an allegation had been made by the wife against the husband with regard to his remarriage, and to answer this, the counsel contended that when the decree of divorce was passed by the Trial Court. At that time, the husband didn’t remarry. But later on, when this decree of divorce was confirmed by the High Court the husband had married another person. They further argued that the wife, on the ground of technicality cannot argue that the husband should have waited for the period of filing special leave to expire.
Legal aspects involved in Suman Kapur vs. Sudhir Kapur (2009)
Section 13 of the Hindu Marriage Act
Section 13(1) of the Act provides the grounds for divorce in the Hindu Marriage. It mentions that in any marriage that has taken place before or after the enactment of the Act, either the husband or the wife can file for divorce, and the same can be dissolved by granting the decree of divorce to the concerned parties as per the provisions mentioned under Section 13 of the Act.
Section 13(1)(ia) of the Act states cruelty as one of the grounds for divorce. Any type or form of cruel treatment by one’s spouse towards the other has been provided as a ground for divorce. Cruelty has been considered a ground for divorce after the amendment of the Act in the year 1976, but before this, cruelty was not even taken into account as the ground for divorce. Cruelty can be defined as one person’s behaviour, act, and attitude toward marital duties, responsibilities, and obligations. As it has been said, cruelty can be of two forms: physical cruelty and mental cruelty. Physical cruelty constitutes causing physical harm or torture towards one partner.
On the other hand, it cannot be properly said as to what acts would constitute mental cruelty. For over a long period of time, the grief, pain and disappointment the spouse faces by the actions of the other spouse can be considered as an act of mental cruelty, or it would constitute mental cruelty. Cruelty is also mentioned under Section 498A of the Indian Penal Code as an offence.
Section 13(1)(ib) of the Act states desertion as one of the grounds for divorce in the Hindu Marriage. Desertion simply means when either spouse has abandoned the other spouse without any reasonable cause. There are two criteria that must exist to constitute the offence of desertion: there has been an actual break, and there is no more willingness left to stay together and continue the marriage. So similarly, there are two criteria that are required in the case of a deserted spouse: there has been no agreement related to the above-mentioned parties, and there is no proper legal reason for the spouse to leave the other partner.
Article 136 of the Constitution
Special leave to appeal by the Supreme Court is covered under Article 136 of the Constitution. This Article grants the Supreme Court the power to allow special leave petitions. This power is exercised by the Hon’ble Supreme Court under circumstances where a substantial question of law arises. The court must apply this power when there has been a case of injustice or justice has been used in just a way that is unjust and improper according to the law. It is the petitioner who presents the facts before the Supreme Court, and on the basis of that, the special leave petition is granted. The petitioner shouldn’t present facts that are unjust and improper, and the facts should be such that they don’t mislead the Supreme Court while granting the appeal. If the court becomes aware that the petitioner has submitted improper or misleading facts, it has the power to revoke the appeal granted to the petitioner. There are two stages in Article 136:
First, the court decides whether or not the special leave petition should be granted to the petitioner. This decision is taken by the court while it is hearing the facts that are submitted by the petitioner.
Secondly, if the court is of the view that the appeal should be granted to the petitioner, it will exercise its appellate jurisdiction in deciding the case. While it exercises this power, the court can alter, modify, or affirm the judgement passed by the lower court.
Judgement of the case
The Supreme Court ruled in this case that it does not find any basis or valid reason to interfere with the orders passed by both the Trial Court and the High Court. As the Supreme Court was of the opinion that the order passed by both the courts was right and the Supreme Court had affirmed the same order, no relief in regard to the reversal of the divorce could be claimed by the wife. The Supreme Court upheld the decree of divorce passed by the concerned court. Regarding the question of remarriage by the husband before the expiry of the period stipulated for filing special leave to appeal in the Hon’ble Supreme Court by the wife is concerned, the court held that the husband shouldn’t have entered into remarriage.
The Supreme Court has disposed of the appeal made by the appellant and further directed the husband to pay a sum of Rs. 5 lakhs as compensation to the wife. This compensation was in relation to the husband’s remarriage.
Rationale behind the judgement
The Supreme Court was of the opinion that the abortion that had taken place required the permission of the husband during the time of abortion. The abortion led to the cruelty. When an abortion takes place without the permission or consent of the spouse, it amounts to mental cruelty, and this is considered as the ground for divorce under Section 13(1)(ia) of the Act. The court ruled that aborting without the consent of the husband amounted to mental cruelty, and the wife had shown no sympathy towards the husband. This is considered as a ground for divorce under this case.
Physical violence is not only the necessary factor or component to constitute lawful remorselessness. The acts of any spouse that amount to any wrongdoing and the same spouse doesn’t feel sorry for their actions can be considered as a valid point for divorce.
Relevant judgements referred to in the case
Various judgements had been referred to in this case by the Supreme Court regarding mental cruelty. Some of them are discussed below:
Sirajmohmedkhan Janmohamadkhan vs. Hafizunnisa Yasinkhan & Anr (1981)
In this case, the respondent, who is the wife of the appellant, had filed a suit of maintenance under Section 125 of the Code of Criminal Procedure, 1973. The maintenance was claimed on the grounds that the appellant had failed to fulfil his marital duties and obligations and there had been wilful neglect on his part. She further established before the court that she was not treated properly by the appellant and was thrown out of the house by her husband. The wife had refused to further continue living with her husband as it had been established before the court that the husband was impotent. On this ground, she refused to live with him and added that this amounted to torture, and the husband was not able to discharge his marital duties. The main issue that was raised in this case was that as the husband is impotent, can this be treated as the only ground for maintenance for the wife, which she was seeking from the husband? The Supreme Court held that as it has been proved that the husband is impotent and is not able to perform his marital duties, this would not only amount to cruelty, but it would consist of both mental and legal cruelty. This ground in itself is sufficient to seek maintenance from the husband.
The Supreme Court referred to this particular case in Suman Kapur’s case, highlighting the concept of legal cruelty. It was stated in this case to constitute legal cruelty. It is not necessary that physical violence should have occurred. The basis and idea of legal cruelty keep on changing as per the changes in society, concepts, and standard of living. When there is total disregard by the husband towards the marital obligations, it leads to legal cruelty.
Shobha Rani vs. Madhukar Reddi (1987)
In this particular case, the mother-in-law was continuously demanding money from the wife; because of this, the wife ended up filing for divorce on the grounds of cruelty. However, the lower court rejected her case, mentioning that she had failed to establish and submit the proof of harassment in the court exercised by the mother-in-law towards her. The Supreme Court mentioned that the evidence that was submitted by the wife in support of her claims was sufficient to prove her claims. The Hon’ble Supreme Court had granted divorce to the wife on the grounds of cruelty under Section 13(1)(i-a) of the Hindu Marriage Act. The concerned court had failed to apply the concept of cruelty to the cases of matrimonial relations. The court further added to this point that if there is an absence of intention in the case of cruelty with regard to matrimonial relations, it doesn’t really matter or bring about any difference. The court ordered the dissolution of the marriage.
The Supreme Court referred to this particular case in Suman Kapur’s case highlighting the concept of cruelty. The term cruelty has not been properly defined under the Hindu Marriage Act. The term cruelty has been mentioned under Section 13(1)(i-a) of the Act, wherein it has been referred to in regard to the matrimonial relationships and the attitude, behaviour, and acts with respect to the same. Cruelty is either mental or physical. It is not necessary that it should be intentional but it can be unintentional even. If there was no intention, it doesn’t mean the act of cruelty has not happened. Mens rea is not necessary to constitute an act of cruelty.
Analysis of the case
The Supreme Court has defined mental cruelty in this particular case. It has been added that mental cruelty is not necessarily intentional; it can even be unintentional. In cases of cruelty, all the things should be considered related to marital relations, especially when the act of cruelty is constituted of non-violent behaviour. In this regard, all the accusations, allegations, complaints, etc, should be taken into account. The court should consider all the fights and incidents that have taken place between the partners.
Also, not only the social condition of the parties be looked into, but other important factors like the physical and mental condition of the partners and the kind of influence or impact they have on each other. Mental cruelty, as per the court, can be defined as when one partner causes such mental pain and hurt to the other partner by their acts and makes it impossible for them to live together. If it is mental cruelty, the court should first look into the aspect of what kind of cruel act had been done by the partner towards the other and what kind of impact or suffering one is having from that act. It is not important if the mental cruelty is being caused because the intention behind it was to cause harm to the health of the partner. It can be of such a nature that the partner is suffering from mental pain. In several cases of mental cruelty, it becomes difficult to establish mental cruelty by the evidence. The court should go through the facts and circumstances properly before passing their verdict.
In the case of Ram Bai vs. Jagdish Prasad Yadav (2010) the Chattisgarh High Court referred to the case of Suman Kapur on the issue of a second marriage that was entered by the husband. The court had observed that when the decree of divorce was passed by the Trial Court, the husband didn’t remarry. But later on, when this decree of divorce was confirmed by the High Court the husband had married another person. They further argued that the wife, on the ground of technicality, cannot argue that the husband should have waited for the period of filing special leave to expire.
In the case of Vishwanath Agrawal vs. Sarla Vishwanath Agrawal (2012), the Supreme Court referred to the case of Suman Kapur on the matter where the wife had sent a notice to the husband through her advocate mentioning that the husband had a second wife in America whose identity was not aware of. The wife had made this allegation simply on the fact that in the income tax return of the husband, he had mentioned a Social Security Number of the wife but apparently which did not belong to his wife. It belonged to some American lady. The husband in his defence added that it had been a typographical error on the part of the husband. The High Court here had highlighted that the wife had gone to such an extent where she was just making such serious accusations against her own husband. The Supreme Court weighed this same judgement in the case of Vishwanath Agrawal.
In the cases of cruelty, to establish the act of cruelty against one’s partner or family, it is not important that the violence should have taken place. In this case, it has been clearly seen that the wife was ignoring her marital duties and was only concerned about her career. When the wife had undergone an abortion without the consent of the husband, she completely deprived the husband of the ultimate joy of fatherhood. It should be taken into account that the wife had undergone an abortion two times, and when she had been pregnant the last time she said it was a miscarriage, the wife kept on giving excuses. The court should take into account all the aspects of cruelty while deciding a case.
It should be noted that the concept of cruelty had evolved over the period of time, and in this case, when the wife was depriving the husband of the joy of fatherhood, her acts constituted mental cruelty. Some would consider it common to have fights in a marital relationship but on the same point love, affection, and impotence to marital obligations and relations are equally important. No one is saying that women should not be concerned with their career or give importance to it but the simple point is that giving undivided attention to the career while ignoring the marital relationship is completely wrong.
Conclusion
The act of the wife terminating the pregnancy without the knowledge and consent of the husband constitutes mental cruelty and was considered as a ground of divorce, and the husband was entitled to the same on the mentioned basis. It is not necessary that the act of cruelty must be intentional, it can be unintentional even. Cruelty is an act done by one partner towards the other partner or its family members that causes apprehension of danger. It is not necessary that there must be some physical harm to constitute the act of cruelty. The concept of cruelty is always different and keeps changing as per the given conditions, the standard of living, and the surroundings of the parties. It cannot be the same in every case. It keeps evolving with time and social advancements.
Frequently Asked Questions (FAQs)
How many types of cruelty are there?
There are two types of cruelty, one being mental cruelty and the other being physical cruelty.
What is the prescribed punishment for mental cruelty in law?
Section 498A of the Indian Penal Code mentions the punishment for cruelty, which is imprisonment for up to 3 years and the accused shall be liable for fines as well. This particular section covers both the physical and mental harm that a married woman faces from her husband and in-laws.
Whether the intention is a necessary element to constitute cruelty?
Cruelty is of such a nature that it becomes impossible for the parties to live together. It can be intentional or unintentional.
What are the established grounds under which the court can use discretionary power under Article 136 of the Constitution to grant a Special Leave petition?
The Supreme Court can use the discretionary power under Article 136 of the Constitution to grant a Special Leave petition when, in case, a substantial question of law has arisen.
This article has been written by Sarthak Mittal, a student at the Vivekananda Institute of Professional Studies of Indraprastha University, Delhi. It explains the rationale behind Section 138 of the Negotiable Instrument Act, 1881 as to why a civil liability has been given a criminal colour and the punishment that follows the given offence.
Table of Contents
Introduction
The Negotiable Instrument Act, 1881 came into force on 1st March of 1882 to provide a uniform law for governing different instruments used in place of fiat money as a matter of convenience.A new Chapter XVII was inserted into the Act on 1st April of 1989 by Section 4 of the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988, (Act 66 of 1988) due to various kinds of frauds and immoral practices that were taking place in the mercantile community. The amendment was made to preserve the sanctity of cheques’ instrumentality as an alternative payment mode. In the case of Krishna vs. Dattatraya (2008), a division bench of the Hon’ble Supreme Court observed that the object of the amendment was regulation of business, trade, commerce and industrial activities in the country and to cast strict liability on the drawers of the cheques, to cast greater vigilance in financial matters, and to safeguard the interest of the creditors by restoring their faith in the instrument of cheque which is imperative to the economic life of a developing country like India.
It is also pertinent to note that along with cheques in contemporaneous times, electronic fund transfer has also become a frequently used mode of payment, and interestingly, as per Section 25(5) of the Payment and Settlement Systems Act, 2007, even dishonouring electronic fund transfers is also governed by provisions of Chapter XVII of the Negotiable Instrument Act, 1881, which makes it more essential to understand various legal intricacies related to Section 138 of the Negotiable Instrument Act, 1881, which was one of the major highlights of the 1988 amendment as it made the dishonouring of such instruments a criminal offence.
What does Section 138 NI Act say
Section 138 provides for prosecution in instances of dishonouring a “cheque”. The term “cheque” has been defined in Section 6 of the Act as a bill of exchange wherein the drawer is the person who is making the cheque, the drawee is the bank of the drawer, and the payee or holder in due course is the person to whom the amount of the cheque is to be paid by the bank. The provision also provides that it is always payable on the demand of the payee and not otherwise. The term “cheque” will include an electronic image of a truncated cheque and a cheque in electronic form.
On careful perusal of the Section, it can be concluded that mere dishonour of a cheque will not be punishable however, it becomes an offence if the following essentials are fulfilled:-
Cheque should be presented to the bank within 3 months from the date on which it was drawn. 3 months is the period of validity vide RBI’s notification (2011-12).
After the presentation of the cheque by the payee, the cheque should be returned unpaid by the bank due to insufficiency of funds in the bank to honour the payment or due to an arrangement made between the bank and the drawer the bank is unable to pay the said amount.
After the cheque is dishonoured the bank will send a bank memo to the payee informing him about the dishonour of the cheque and the reason for such dishonour, the payee is to send a notice within 30 days from the date of receiving the memo to the drawer demanding him to pay the amount.
If the drawer of the cheque fails to make the payment within 15 days from the date of receipt of such notice, the offence will be made out under Section 138.
All the above-mentioned essentials are mandatory to be fulfilled to invoke Section 138. A person culpable under Section 138 of the Act can be made liable for a punishment that may extend up to 2 years of imprisonment or a fine that may extend up to twice the amount of the cheque in dispute, or both. Further, it is pertinent to note that there is a limitation period of 1 month from the date on which the cause of action arose, as provided under Section 142(1)(b), and the proviso to the said provision also provides for condonation of delay in the cases where there is a sufficient cause for delay.
Nature of offence under Section 138 NI Act
In the case of Kaushalya Devi Massand v. Roopkishore Khore (2011), the Supreme Court observed that an offence under Section 138 of the Negotiable Instrument Act, 1881, cannot be equated to any offence under the Indian Penal Code, 1860 as Section 138 attached liability to a civil wrong that has been given a criminal overtone. In the given case, the appellant was an old and widowed lady who had been arguing the case against the respondent for the last 14 years. The Appellant was to recover Rs. 3,00,000 as a consideration in lieu of a property; however, the cheques given by the respondent were dishonoured due to insufficiency of funds, and the appellant thereby pressed upon the fact that imprisonment in such a case is a must to restore the faith of people in the judicial system and that it would act as a deterrent to other people who draw cheque with malign intentions to defraud the payees. Both the High Court and the Supreme Court in the given case observed that there should be some special circumstances in the case to make the accused liable to imprisonment, and in the given case there was no other special circumstance other than the victim being an old and widowed lady. Consequently, the High Court increased the compensation from Rs. 4,00,000 to Rs. 6,00,000 and the Supreme Court increased the compensation from Rs. 6,00,000 to Rs. 8,00,000 and held that in the following case monetary compensation can be sufficient to compensate the victim and there is no need to impose any sentence of imprisonment.
From the given case, we can conclude that Section 138 is a civil wrong and is treated as such, and only in the presence of some special circumstances it will lead to sentence of imprisonment imposed and not otherwise, as it is compensatory in nature. This proposition of law was further reiterated and clarified in the case of M/s Meters and Instruments v. Kanchan Mehta (2017), wherein it was held that an offence under Section 138 is compensatory in nature, and the punitive element that is present in the provision is to make the compensatory mechanism more effective. The Supreme Court also observed that the trial is in accordance with Section 262 to Section 265 which is the summary procedure provided by the Code of Criminal Procedure, 1973 which is usually followed in criminal trials. The reason behind adopting a criminal trial to resolve a criminal wrong is that it provides for a more robust remedy. The quasi-criminal nature of Section 138 was also observed in the case of CIT v. Ishwarlal Bhagwan Das and Ors. (1965). It is also pertinent to mention the judgement in the case of P. Mohan Raj v. M/s Shah Brothers Ispat Pvt. Ltd. (2021)wherein it was made clear that the propensity of the court should be towards compensating the victim rather than penalising the accused in cases of Section 138.
Further, in the cases of Rangappa v. Sri Mohan (2010) and Indian Bank Association and Ors. v. Union of India (2013), the Supreme Court observed that an offence punishable under Section 138 is regulatory in nature as it relates to a civil wrong that affects only the private parties involved in the suit. It is pertinent to note that Section 139 of the Act provides for the reversal of the burden of proof on the accused, as the burden of proof on the prosecution is discharged itself by the presumption under Section 139. So the court, keeping in mind the nature of the offence, went ahead and held that the accused cannot be expected to discharge a high burden of proof, thereby settling that Section 139 casts a burden on the accused to prove “preponderance of the probabilities” and not beyond a reasonable doubt as in the cases of other criminal offences.
Punishment under Section 138 NI Act
Punishment under Section 138 has been provided for imprisonment up to a term of 2 years or a fine, which may extend up to twice the amount of the fine or both. As has been discussed earlier in Section 138, the compensatory nature of the provision is paramount to the punitive nature of the provision, which means that even if the statute provides for imprisonment in such cases, the first instinct of the court will be to look for appropriate measures to compensate the complainant in such a case. From here, the question arises as to why we have the option of imprisonment in the first place. This discussion has been made in various ways in the legal fraternity which are as follows:-
Judicial pronouncements
The discussion on decriminalisation of Section 138 first took place in the case of Makwana Mangaldas Tulsidas v. State of Gujarat (2020), wherein a division bench comprising the then Hon’ble Chief Justice S.A. Bobde and Hon’ble Justice L. Nageswara Rao observed that Section 138 deals with civil wrong which was justified in 1989 but contemporaneously the offence enumerated can be decriminalised. The following judgement of the Supreme Court has also been considered by the Bombay High Court in the case of Karmayogi Shankarraoji Patil and Ors. v. Ruia & Ruia Pvt. Ltd. and Ors. (2022). Further, in the case of Gimpex Private Ltd. v. Manoj Goel (2021)a division bench of the Supreme Court comprising Hon’ble Justice D.Y. Chandrachud and Hon’ble Justice B.V. Nagarathna while relying on a notice issued by the Ministry of Finance on 8th June 2021, observed that Section 138 being a criminal offence in India has severely affected the ease of doing business in India and has disincentive the investors from making investments in India, by observing the following issue the court hasmade its propensity towards decriminalising of Section 138 more apparent.
Suggestions by legislature
The Law Commission in its 213th Report adduced in 2008, observes the hardships that the payee of the cheque is facing contemporaneously due to the unscrupulous practice of issuing cheques by drawers with no intention to pay. The report also observed how the time-consuming process of such lengthy trials is adding to the hardship of such payees and simultaneously attacking the credibility attached to the institution of cheques and banking. Further, to resolve the problem, the commission suggested the formation of fast-track courts at the ministerial level, the rationale being that additional infrastructure, along with focused intention and adjudication by the magistrates having specialised knowledge on the subject, will make disposing of cases efficient and more effective and also help in restoring the faith of the public in the judiciary. The following recommendation of the commission has also been observed by the court in the case of In Re: Expeditious Trial of Cases Under Section 139 of the Negotiable Instrument Act, 1881 (2022) and also functioning of various special courts for such cases has been observed in the judgement which are established in the states of Delhi, Bombay, Rajasthan, Allahabad, Gujarat, and Rajasthan. The Hon’ble Court has also given shape to such recommendations by providing guidelines over the training of magistrates and staff, duration of studies to be conducted, pay and service duration of the officers, etc. The given report aims to form more stringent law to deter the accused under Section 138 and more efficacious systems to adjudicate the complaints.
After a decade, a notice issued on 8th June 2020 by the Ministry of Finance discusses that the decriminalisation of minor offences where there is no need to impose criminal liability will be in consonance with government policies initiated during the pandemic to invite foreign investors and simultaneously incentivise the mercantile community in India by increasing the ease of doing business in India. The notice also specified Section 138 as one of such provisions, wherein the government invited the opinions of the stakeholders on its suggestion of decriminalising the following offence.
It is also pertinent to note that India is a signatory to the International Covenant on Civil and Political Rights (ICCPR) which is part of the international bill of human rights that was founded by the United Nations. Article 11 of the Covenant provides that no one should be imprisoned due to the mere reason of his inability to fulfil a contractual obligation and in the case of Jolly George Verghese and Anr. v. Bank of Cochin (1980), Hon’ble Justice V.R. Krishna Iyer observed that the following Article of the covenant is in line with Article 21 of the Indian Constitution. The judgement tries to bring out the need to decriminalise civil wrongs in India and by the same analogy, a strong and compelling argument can be made against the criminal liability attached to Section 138. It is also pertinent to note that the United Kingdom introduced the Debtors Act, 1869 to decriminalise such failure to fulfil contractual obligations along the same lines, and the United States of America in 1833 decriminalised the imprisonment of debtors for their inability to repay their debts.
Negative Impact of Decriminalisation of Section 138
Most of the time, in such kinds of offences, there exists an element of fraud that will go unpunished if Section 138 is decriminalised and some unscrupulous people may get incentivised by decriminalisation. Further, in the mercantile community there has been a prevalent usage, especially after the introduction of these new laws under Chapter XVII of the Negotiable Instrument Act, 1881 which is of accepting Post Dated Cheques (PDCs) as a security for extending trade credits which makes the transactions more convenient and trustworthy, such kind of transactions where the deterrent of dishonouring of cheque plays an important role will get affected severely.
The most important point that is to be considered is that the complainant will always have a right to file an FIR and initiate criminal proceedings against the accused under Section 420 of the Indian Penal Code, 1860 which provides for cheating by dishonestly inducing a person to deliver his property. This will create an additional burden on the courts, and the goal of decriminalisation of cheques will be defeated. The Act of decriminalisation will promote cash transactions, the country will move further away from its goal of becoming a cashless economy, and the circulation of black money in the economy will increase as a result.
Alternatives to decriminalisation of Section 138
The legislature can provide a limit of sum until which there can be no criminal consequences however if the cheque is for the limit of sum prescribed criminal consequences can ensue. The Credit Information Bureau (India) Limited provides the CIBIL score of the drawer whose drawn cheque bounces; it can also be lowered to deter him from dishonouring his cheques. Alternative modes of settlement of disputes like mediation and conciliation can be promoted to resolve the problem of case pendency.
An interesting solution has been propounded in the jurisdiction of Scotland which is to attach the funds in the bank of the drawer of the dishonoured cheques till the time the bank receives the rest of the funds from the drawer to honour the cheque or a letter by the payee to satisfy the court that he has no further interest in the cheque. Another interesting solution can be found in the jurisdiction of Japan, where dishonouring of a cheque twice in six months can lead to the suspension of the bank account for two years. Further, it is pertinent to note that in jurisdictions like England, Australia, Singapore, Malaysia, France, and the United Arab Emirates, the act of dishonouring of cheques provides only civil remedies to the payee.
Conclusion
Chapter XVII of the Negotiable Instrument Act, 1881 has helped ameliorate the credibility of cheques; however, the efficacy of the law depends on its implementation, and there have been various contentions regarding how the laws relating to the dishonouring of cheques are being implemented. The first major contention is the high pendency of cases of dishonouring of cheques which can be controlled by the formation of fast track courts, as has been implemented and explained in the case of In Re: Expeditious Trial of Cases Under Section 139 of the Negotiable Instrument Act, 1881 (2022).
Further, the second contention is regarding the criminal overtone given to the dispute which is civil in nature which makes it imperative to understand that criminal procedure provides for a faster remedy in comparison to civil cases and that there is already an existing right to bring a suit for recovery of money under Order XXXVII of the Code of Civil Procedure, 1908 which in itself provides for a summary procedure thereby, abolishing the criminal overtone given to the dispute will not fasten the process.
The third contention is regarding the criminal liability of imprisonment, which can be awarded under Section 138, which may not be an appropriate thing to do as imprisonment is only awarded in cases where special circumstances have been proved by the complainant, as was observed in the case of Kaushalya Devi Massand v. Roopkishore Khore (2011). The best solution in such cases can be to devise proper and clear guidelines which help in deciding what are the special circumstances to make the accused liable for imprisonment. Furthermore, the government can choose to add a pecuniary limit for cases that can be exempted from criminal liability and imprisonment and can also insert such policies as have been followed in Scotland and Japan of suspending or freezing the accounts of the drawers however, decriminalisation of Section 138 will only incentivise people to commit fraud, which will again impact the economy.
Frequently asked questions (FAQs)
Should insufficiency of funds be the only reason for dishonouring of cheque to invoke Section 138?
Insufficiency of funds can not be the only reason for invoking Section 138 of the Negotiable Instrument Act, 1881 rather, it can also be invoked in cases where dishonour of cheque is due to a mismatch of signatures, as was held by the Supreme Court in the case of Laxmi Dyechem v. State of Gujarat (2012). Further, in the case of NEPC MICON ltd. and Ors. v. Magma Leasing (1999) it was held by the Supreme Court that Section 138 can be invoked even in cases where a cheque has been drawn from an account that is closed. However, Section 138 will not apply to lost cheques as per the judgement in the case of Rajkumar Khurana v. State of NCT of Delhi (2009) and also will not apply to time-barred debts as per the judgement in the case of Sasseriyil Joseph v. Devassia (2001).
Is Section 138 applicable on post-dated cheques and blank cheques?
The Hon’ble Supreme Court held in the case of Sampelly Satya Narayan Rao v. Indian Renewable Energy Development (2016)that post dated cheques are commonly given as a security and that Section 138 can be made out on the dishonouring of such cheques given that the liability should be outstanding on the date of the dishonouring of the cheque. It is pertinent to note that in the case of Ashok Yeshwant Badave v. Surendra Nighojkar (2001)it was held that a post-dated cheque may have the title of a bill of exchange in the beginning, but whenever the date of presentment reckons, it becomes a cheque, and from that date onwards dishonouring of such a cheque will also be covered under Section 138.
In cases of blank cheques the Supreme Court held in the case of M/s Kalamani Tex v. P. Balasubramaniam (2021) that Section 138 can be invoked and even the presumption of Section 139 will be attracted given that it should be voluntarily signed and handed over to the payee; the same proposition of law was also reiterated in the case of Raj Singh v. Yashpal Singh Parmar (2022).
Can a dishonoured cheque be presented again?
In the case of Sadanandan Bhadran v. Madhvan Sunil Kumar (1998), Supreme Court held that only one cause of action can arise from one cheque, and presentation of a dishonoured cheque again will not give rise to a new cause of action. However, it is pertinent to note that this proposition of law was not accepted by a later judgement in the case of MSR Leathers v. S. Palaniappan (2013)wherein it was held that dishonoured cheque can be presented any number of times during its period of validity which is of 3 months reckoning from the date on the cheque and each successive dishonour will give rise to a new cause of action. It is pertinent to note that both the judgements of the court are by a division bench therefore, the clarity on this proposition of law is not so cogent; however, the latest judgement by the court is more in line with the nature and object of the Act, and for the time being, it should be followed.
What are the consequences of sending two notices during the notice period under Section 138?
Generally, in such cases, the contention is raised that the act of sending two notices during the notice period of 30 days will vitiate the proceedings or that the sending of a second notice will give rise to a new period of 15 days for making payment to the drawer, which would ultimately result in prolonging the time for filing the suit. However, in the case of N. Parameswaran Unni v. G Kannan (2017), it was held that even in the cases where the payee or the holder in due course has sent two notices the trial will not be vitiated and a second notice will be seen as a mere reminder and all the relevant prescribed periods will be computed as per the first notice.
In 1946, Viktor Frankl published ‘Man’s Search for Meaning’, a book that describes the response of the prisoners in the Nazi Concentration Camps to their changed lives and the resulting uncertainty of life. They go through the stages of Shock, Denial, Apathy and finally, Disillusionment after their release. The common reaction to change is also similar in the business environment. The theories of change management seem loosely based on grief management since ‘change’ stands for discomfort/inconvenience for most of the employees. Therefore, the reaction to change goes through similar phases of shock or denial, anger at the discomfort, acceptance and commitment to change. However, the journey from the first to the last stage can be time-consuming, unhealthy and harmful for most companies.
Change in organisations
Change is inevitable in the current business scenario due to various reasons. Globalisation has resulted in a paradigm shift for businesses. It has brought about a technological revolution, enlarging the scope, changing the basic management concepts, changing the perception of time and space, and thereby, affecting all the stakeholders completely. It has also affected the availability and validity of information and knowledge. The processes have changed, undermining the importance of human capacity and scholarship. Organisations that adapt to change gain a competitive advantage over others. If not, they will get left behind with losses in profit and demoralised employees.
Generally, the changes in any organisation can be classified as strategic changes, structural changes, technological changes, individual changes and remedial changes. These changes require specific management since they are driven by distinct factors. E.g. Strategic changes are policy changes or changes in certain business processes. These may be entirely internal changes. On the other hand, technological changes are mostly driven by external, global factors. Therefore, both require different management. There are also unexpected or accidental changes. They need change management along with crisis management.
Change management
Change management (CM) ensures a smooth transition in a changed environment. It allows control over the process of transition. Implementing and monitoring the responses can become easier with the skeletal structure. The general definition of change management redefines the way resources are utilised or processes are restructured. “Change management is a collective term for all approaches to prepare, support, and help individuals, teams, and organisations make making organizational change.” Though there have been scholarly discussions about and around change management since the early 1960s, they were mostly based on grief management. However, later, several models specifically for change management were designed.
Kubler Ross’s Change Curve Model (1969) cites the similarities between the grief -stricken people and the employees undergoing change.
Another seminal work, ‘Leading Change’, was published in 1996 by John Kotter, in which he presented the famous 8 stage model for change management.
The 8 stages:
Create a sense of urgency
Build a guiding coalition
Form a strategic vision and initiatives
Enlist a volunteer army
Enable action by removing barriers
Generate short-term wins
Sustain acceleration
Institute change
Adakar’s change management model emphasisesfive key areas – Awareness, desire, knowledge, ability and reinforcement.
Then there are several other models, like McKinsey & Company’s 7-S Framework, Kurt Lewin’s Change Model, Satir Change Management Model and William Bridge’s Transition Model.
All these models may look different. However, they seem to have the same underlying principles.
Principles of change management
These principles deal with the elements which have universal significance.
Human element is important in change management.
Address and present the issue rationally.
Change should start with the leader.
Everyone should be involved.
Assign accountability of change.
Communication is important in CM.
Assess the cultural landscape.
Address individuals.
Prepare the unexpected.
These principles drive the plans and implementation of the intended change in the organisation. The following steps are suggested by most of the change management experts.
Understand change
Understanding change involves thorough study of the proposed change, including its scope, duration and ROI, or change benefit.
It is also crucial to assess the impact it may have on the stakeholders and the organisation.
The human side is of vital importance for the change to be successfully implemented. Expect resistance to change as a human characteristic.
It is also important at this point to study the socio-cultural and political environment as well.
Plan change
Planning involves not only physical structure on a piece of paper but also building a team of Change Leaders to support the change.
A cross-section of all the stakeholders should be involved.
The timing of implementation also plays a significant role.
A strategy to communicate change should be prepared.
Finally, a proposal to implement change should be prepared.
Implement change
Communication plays an important role at this stage. Keep the stakeholders updated on the change. Use all the possible tools.
Make it personal for every member, highlighting the changes and benefits.
Educate and train people to accept and implement the change.
Monitor and analyse change
After implementation, it is necessary to assess the impact and the outcome. Its comparison with the expected outcome on qualitative and quantitative metrics will indicate success or failure of change management.
For long-term changes, modifications can be made in the process, if necessary, to ensure success.
Constant monitoring will also avoid unexpected or undesired responses from the stakeholders.
Strategies used in change management
Change management strategies largely hinge on robust communication within an organization and with all stakeholders. Sonya Krakoff, a content marketing specialist, provides valuable insights into these strategies in her article titled “The 10 Best Organisational Change Management Strategies.”
At the core of these strategies lies the emphasis on transparent and open communication. Management is encouraged to be forthcoming with information, ensuring that all employees and stakeholders are well-informed about the change process. This transparency builds trust and reduces resistance, as individuals feel valued and respected.
Communication is not merely about sharing information but also about actively listening and seeking feedback. Management should create opportunities for employees to express their concerns, suggestions, and ideas. This participative approach not only captures valuable insights but also fosters a sense of ownership and commitment among the workforce.
Telling the truth is another crucial aspect of communication in Change Management. Organizations must resist the temptation to sugarcoat or downplay the challenges associated with change. Instead, they should acknowledge the difficulties honestly and provide a realistic picture of what lies ahead. This approach builds credibility and ensures that employees are prepared for the journey ahead.
Inviting participation is yet another strategy highlighted by Sonya Krakoff. Employees should not be mere recipients of information but active participants in the change process. Engaging them in decision-making, brainstorming sessions, and pilot programs helps create a sense of ownership and buy-in. It also taps into the collective knowledge and expertise of the workforce, leading to better outcomes.
These strategies collectively emphasize the importance of a well-crafted communication plan. Effective communication is the bedrock upon which successful organizational change is built. By fostering transparency, listening actively, telling the truth, and inviting participation, organizations can navigate the challenges of change more effectively and emerge stronger on the other side.
Role of communication in change management
The human factor in change management is of utmost importance. Most of the time, there is resistance to change on an individual as well as an organisational level. The causes of resistance range from habit, fear of the unknown to the inertia of the stakeholders. However, all these barriers can be handled with effective communication. All the stakeholders, internal as well as external, can be catered to with proper and timely communication. Greg G. Wang and Judy Y. Sun have asserted the significance of communication in their article “Change Management”- “Communicating the right message at the right time is critical in change management. It involves building awareness of the change and the risk of maintaining the status quo.”
Communication can be of vital importance due to its multiple functions. Every organisation undergoing change should have a change communication plan. “Change management communication, or change communication, is all the ways that we share messages and help our companies through transformation or change.”
Addressing the human factor
Business organisations are primarily about people. They are the driving force and the human asset of a company. If there is change, they are the first ones to get affected. Therefore, communication plans should address them first and foremost. Before implementing change, using tools and channels such as house journals, articles, face to face communication, etc., the stage can be set for the change.
Maintaining transparency
Transparency breeds trust. The change management team should keep the stakeholders informed. Before the change, they should make their vision clear. In departmental meetings, individual sessions can be conducted, along with broader platforms like public interviews, podcasts and press notes that should be used as a vehicle for transparency.
Creating a semblance of democracy
Communication can be used to create a sense of participation. Direct orders can question the motives for change as they are one-sided. Interaction will allow the stakeholders to express their doubts, complaints and queries. Asking for their opinions and entertaining their complaints will spread democratic vibe.
Building a team
Change management needs opinion leaders to succeed. A strong team of supporters can make the change possible with the least friction. The team should be equipped with all the necessary information about the change (what is the change, how will it benefit the company and the individual, what are the expectations, etc.)
Conveying policies of the organisation
The motive behind the change should be clear. It should be conveyed in precise language. Once the objective is clear, there will be more positive sentiment among the internal and external public.
Explaining change benefits
This function is crucial since it deals with the professional, commercial side of the activity. Every person affected by change should know what’s in it for him/her. Then it will become personal for everyone. It will be easier for them to digest the change once the profits are explained.
Boosting morale of the employees
Once the change is rolled out, the morale of the employees drops. There is scepticism, doubt and anxiety. Effective communication can be used to deal with their doubts. Most of the employees will have ‘wait and watch’ policy. Therefore, communication plan should have periodic action plan. Instead of rushing the change, all the steps should be paced properly.
Reaffirming the trust of internal and external public
The change not only affects the employees but also other stakeholders like financial institutions, governmental bodies, stockholders, etc. Through proper and effective communication, they can be kept updated at each stage of change and development. These efforts will create trust and assurance, and the organisation will be able to retain the faith they have.
Counselling for feeling of safety and security
Insecurity about a job can be a chief reason for resistance to change. If the change benefits and status quo after change is explained properly, by citing examples, or by showing quantitative data and its analysis, there will be less uncertainty. Personal and professional counselling can be helpful in cases of change for the individual employee facing a change in status or portfolio.
Training and educating the employees
In the case of physical or mechanical changes, it is required that the employees be educated and trained for the change. E.g., the digital revolution required special training at the beginning of the 21st century.
Collecting feedback from the employees
Collecting feedback from stakeholders is extremely important in CM. Even though the change is implemented, its success or failure is to be measured for future modifications. This especially applies to long-term changes. Feedback should be collected periodically to monitor the changes at 3 stages.
Feedback during preparation.
Feedback after implementation.
Continuous feedback at predetermined, periodic stages.
Conclusion
Change can be hazardous if not treated with timely and effective communication. Change requires that it be managed through a proper plan that is executed with consistent efforts and with participation from every member of the organisation. The human factor should be handled delicately. Communication can be an effective tool that needs to be used in all stages of change management.
The above list is not conclusive but surely it shows the significant role of communication in change management. After all, Viktor Frankl’s victims of the concentration camp could survive due to his communication and counselling.
TV debates are a concurrent and widely used tool to bring out critical analysis on issues and subjects of common public interest. The debates involve deliberations/ discussions and counter views by/among 2-3 or more parties. The number of parties may vary and depend upon the topic, audience, purpose and stakeholders. The objectives or purposes of debate may be different but the common thread is to win. A plethora of strategies and approaches have been outlined by various experts and authors, which are needed in order to create a successful impact as an organiser and as an individual or group.
Presenting a clear point of view, strong evidence and a firm conclusion are the first three steps to winning a debate. However, in order to persuade the audience, one needs to probe the opponent’s position without being arrogant or overbearing. “Nixon was a kind of politician who would cut down a redwood tree and then mount the stump to make a speech for conservation”- Adlai Stevenson, American Statesman, 1900-1965.
There are, however, different steps involved in a successful TV debate, which is vital to winning. This includes:
Planning
Choosing a strategy
Researching the topic
Working on opponents strengths & weaknesses
Working on a great ending
Planning
Sound planning is essential to participate/win a debate. This involves knowing about the target audience, thorough and updated knowledge on the theme, well done research on the subject, the opponents and their strengths & weaknesses, and an overall strategy to be applied to win the debate.
Based on the topic, participation is invited considering the knowledge, background and strategy. The venue, audio, audience, telecast, etc. are also well planned in advance.
The participating parties present their respective views/opinions on the given/ chosen topic/issue. The rules of the game are made known in advance and parties are expected to abide by them. Moderator/anchor steps in wherever needed or switches over to sub contents of the main topic. Parties must present their views based on authentic or published data sources, which can be required or verified to earn the trust of the audience. The anchor is expected to be fair to all parties and provide a level playing field to elicit a worthy, positive and interesting debate for the audience. The role of the moderator is critical in soliciting the best outcome from the parties in that form of debate.
Strategies to win a debate
Deploying and choosing from a set of strategies/ tactics depending on the opponent’s strength, such as anticipating counterarguments, respecting different viewpoints and soundly structuring one’s argument, significantly enhances the probability of igniting stimulating debates. Solid arguments, relevant research and forceful views and expressions are winning strategies.
According to David Gergen’s 20 General Tips for Political Debates (Shorenstein Centre on Media, Politics and Public Policy), anyone or more of the following could be chosen as a strategy while preparing for a debate.
Prepare thoroughly: Any debate requires a thorough study of the subject matter in order to give the arguments substance. Knowledge about the strength of the opponent makes or helps in selecting a proper /winning strategy.
Engage in mock debates, using a podium and televised tapes for review- A well-rehearsed exercise generates confidence in terms of timing, emphasis points and the design approach of the debate.
Encourage candid advice.
Narrow down the group of advisers towards the end.
Agree upon general strategy, main points to be hammered home, sound bites, rhetorical responses, and surprises.
Consider props.
Prepare opening and closing statements.
Have professionals negotiate conditions in the hall.
Spend some time thinking alone.
All the arguments need to be supported by apt examples in order to be effective. The questions can be rephrased, but not too often. Draw upon figures from the past, which might help appeal to swing people. Use some verbatim statements and see how they can best be applied today and a quote or two from other sources always enlivens.
There are also expected rules for the presenters/parties. Every party must be analytical and critical in their views based on reliable data sources. Parties must come out with a clear stance on the topic. Parties must adhere to the time slots allotted to them. Parties should not criticise the individuals who are into the fray itself. Parties must supplement the views in case some aspects or perspectives remain uncovered to provide a wholesome evaluation.
Eric Ravenscraft, WIRED, in his article “How to win any debate”, describes the following key strategies for winning in any debate.
Don’t take the posturing bait
The goal of posturing is to force your opponent to keep answering short, incorrect statements with long, detailed answers because it’s easier for an audience to understand the short accusation than the long, detailed explanation. Similarly, you must be able to quickly understand and not fall prey to the opponent’s bait.
Ask more questions
Your argument can be a lot more persuasive when you gently lead the other person there, rather than pummeling them over the head with it. It positions the points of the debate as something to think about.
Non-verbal communication matters
Nonverbal communication can be used in a variety of ways, including through facial expressions, gestures, and body posture or position., especially in a political debate.
Winning a debate against a well-prepared opponent who uses their own logic can be challenging, but there are some strategies that can help.
Research and preparation
Listen actively
Stay calm and composed
Use evidence and examples
Find common ground
Be open to learning
It is always better to express things in a manner that sparks discussions rather than making a dull or plain narrative, or to challenge narratives and offer multifaceted perspectives to create a vibrant digital community.
MSNBC anchor Mehdi Hasan, in his new book ‘Win Every Argument: The Art of Debating, Persuading, and Public Speaking,’ has revealed his tricks of the trade for the first time. According to him, the following five strategies to punch holes in the opposition’s arguments are:
Identify weak points and minimise strong points.
Challenge the sources and interpretation of facts
Don’t be rushed to a hasty response
Don’t Overreact
Minimise your opponent’s challenge
In his famous book ‘Win Every Argument: The Art of Debating, Mehdi Hasan has brought out following techniques-
Focus on feelings, not just hard facts
Humans are by nature sentimental and emotional; utilising this as a key area, the facts and boring data sets should be blended with touching stories containing feelings, which helps in connecting to hearts and influences the minds to enable you win the arguments. These stories and examples can bridge the gap between dry data and human experience, making your argument more relatable and persuasive.
Play the ball and the person
By carefully applying this strategy in conjunction with other persuasive techniques, one can effectively discredit opponents and strengthen their own position It can discredit your opponent and their argument at the same time. It can win over a sceptical crowd and give you the upper hand.
Make ’em laugh too
Laughter brings the two people closer. It releases stress and develops relationships. Laughter provides your audience with “social glue.”
The strategic use of humour and mockery can also put your opponent on the defensive. Making the audience laugh intermittently as a strategic tool attracts and inclines them against those who just keep bombarding them with large Excel data sheets.
Use some judo moves
Judo is an old Japanese martial art that reflects “flexibility” or “yielding.” In a debate, some of the features much needed in order to use your opponent’s energy against them and knock them to the ground are flexibility. This is a useful tool to pretend something has the objective of something else. Occasionally, we do have to yield to an opponent because the action pretends to look more reasonable to the audience and help us win.
Look and sound confident
Confidence is an essential ingredient when it comes to debating or for that matter, any fight. Debating, in particular, requires courage & confidence so saying, “Sorry, you’re wrong” demolishes the opponent.
According to David Robson, in his article “The Science of Influencing People,” he has mentioned six ways to win an argument:
Craft a compelling narrative to debunk conspiracy theories.
Maintain calmness and friendliness.
Appeal to values and identities.
Be kind and respectful.
Ask “how” Instead of “why”.
Reframe the issue thoughtfully.
Analysis and conclusions
The moderator, at the end, summarises concisely and brings out the extract of the debate deliberations, which could easily be imbibed by the audience. The measurements/ parameters of the success of any debate lie in the impact it creates in terms of knowledge enhancements for the audience through the combined knowledge of the participating parties.
The organisation skills, selection of debate parties, background of the parties, honouring of the timelines, onboarding skills, and behaviours also play roles in making lasting impressions on the quality of debate and its outcome.
As brought out above, there are a range of strategies and tips that could be deployed as a winning strategy in any debate, but success usually depends on tweaking according to the rival’s strength, his approach, the audience and your holistic performance given the conditions.
So have belief in yourself. Get ready for an emotional appeal. Be willing to play the ball and the person. Use zingers, jokes, and judo moves. The combination of confidence, knowledge, delivery and strategy is the winning combination in any debate.
References
Dan Gabor, Words That Win, Penguin 2003
Mehdi Hasan, ‘Win Every Argument: The Art of Debating, Persuading, and Public Speaking,’
Thomas Waldvogel, Pascal D. König, Uwe Wagschal, All I do is to win, no matter what? What matters in gaining electoral support from televised debates, Communication & Society 2023 – Vol. 36(1)
The article is written by Jyotika Saroha. The present article provides a detailed overview of the landmark judgement in Indira Nehru Gandhi vs. Shri Raj Narain (1975). It is a landmark case where many important aspects of the Indian Constitution have been touched upon by the Supreme Court in upholding the principles of equality, unity, and integrity of the nation. It elaborates on the facts, issues, and judgement of the court while also covering the laws and precedents applied in the said case and the analysis of the judgement.
Table of Contents
Introduction
Prashant Bhushan, a renowned lawyer and activist, authored the non-fiction book ‘The Case That Shook India,’ which delves into the landmark case of Indira Nehru Gandhi vs. Shri Raj Narain (1975). This case is a significant legal precedent in the history of independent India that resulted in the imposition of an emergency from 1975 to 1977. In this case, the election of the Prime Minister was in question. During this time, the Parliament tried to assert its dominance and acted outside its sphere by limiting the powers vested in the judiciary. The case is a landmark one as it touched on so many aspects of the Indian Constitution, including the basic structure doctrine laid down in Kesavananda Bharati vs. State of Kerala (1973), the separation of powers between the executive, legislature, and judiciary, the conduct of elections in a free and fair manner, and the concept of judicial review. It is also pertinent to note that during the hearing of this case, the emergency was in operation, the fundamental rights were suspended, and censorship was also imposed on the press, resulting in the non-reporting of the case. Moreover, this case had a great impact on the political structure of the country at that time, as there was an illegal detention of many members of Parliament without giving them the reasonable opportunity of having a fair trial.
Details of the case
Name of the case: Indira Nehru Gandhi vs. Shri Raj Narain & Anr
Case Number: Appeal (Civil) 887 of 1975
Equivalent Citation: AIR 1975 SC 2299, 1976 2 SCR 347
Bench: Hon’ble Justices A.N. Ray (CJ), Justice H.R. Khanna, Justice K.K. Mathew, Justice M.H. Beg, and Justice Y.V. Chandrachud
Parties to the case
Appellant: Indira Nehru Gandhi
Respondents: Shri Raj Narain
Judgement date: 7th November, 1975
Facts of the case
During the 5th Lok Sabha General Elections in India, which took place in 1971, there were two contenders from the Rae Bareli constituency, namely Indira Nehru Gandhi (appellant herein) and Shri Raj Narain (respondent herein), with tough competition among them. After the elections were declared, Indira Nehru Gandhi won the election with 352 Lok Sabha seats out of 518. Her strongest contender did not approve of these results, as he was very confident about winning the election by a huge margin.
Petition before the Allahabad High Court
He filed a petition before the High Court of Allahabad on 24th April, 1971, in order to raise his voice against the elections won by Indira Gandhi on the grounds of malpractice. Shri Raj Narain alleged that the appellant, Indira Nehru Gandhi, violated the model code of conduct of elections as per the provisions of the Representation of People’s Act, 1951. He further made allegations against Indira Nehru Gandhi for using government resources for the purpose of elections. He also contended that she gave money, liquor, and blankets in order to buy votes from the people by influencing them.
Decision given by the Allahabad High Court
The case was put before Justice Jagmohan Lal of the High Court of Allahabad, and in his judgement, he declared Indira Gandhi to be guilty of the allegations made against her by Shri Raj Narain. She was found guilty of using the money and other government resources as per the provisions of Section 123(7) of the Representation of the People’s Act, 1951. The High Court, in its decision, barred her from contesting the elections of Prime Minister for a further period of six years. Thereafter, aggrieved with the decision of the Allahabad High Court, she (the appellant herein) moved to the Hon’ble Supreme Court by way of an appeal against the decision of the High Court of Allahabad. At that point in time, the Supreme Court was on vacation; hence, the Court granted a stay on the decision of the High Court.
Meanwhile, the then Indian President, Fakhrudeen Ali Ahmed, made a proclamation of emergency on the grounds of an internal disturbance. However, the people were aware of the real reason behind the declaration of emergency, and it was because of the decision given by the Allahabad High Court in State of Uttar Pradesh vs. Raj Narain (1975).
Challenging the validity of the 39th Constitutional Amendment before the Hon’ble Supreme Court
The Supreme Court ordered both parties to the case to appear before the court on August 10, 1975, in the proceedings. The President passed the 39th Constitutional Amendment, which introduced a new provision, namely Article 329-A, in the Indian Constitution. Article 329-A provided that the election of the speaker and Prime Minister shall not be questioned in the court of law, and they could only be dealt with by the committee formed by the Parliament for that purpose, which resulted in a restriction on the power of the Supreme Court in dealing with cases regarding elections. Shri Raj Narain challenged the validity of the 39th Constitutional Amendment, arguing that it was unconstitutional and should be struck down.
Issues raised in the case
The following issues were raised in the case before the Supreme Court:
Whether the election of Indira Gandhi was valid?
Whether the Representation of People’s (Amendment) Act, 1974, and the Election Laws (Amendment) Act, 1975, are constitutionally valid?
Whether clause (4) of Article 329-A is unconstitutional?
Arguments of the parties
Appellant
The learned attorney general primarily contended that it is not in the hands of courts to decide upon the election related dispute and that it must be left with the Legislature.
It was contended that in the American Constitution, the power to make decisions in election-related disputes rests with the legislature, and such complaints must be filed within the legislature only.
It was further stated that the judiciary cannot exercise the powers vested in the other organs of the government and has no say in them. It was argued that matters related to political questions are not to be dealt with by the judiciary.
The appellants argued that elections solely belong to the political branch of the government, and if there are no statutory or constitutional provisions regarding them, they are not to be dealt with by the judiciary.
The further contentions were made with reference to the 39th Constitutional Amendment, by which Article 329-A was added. It was stated that, as per clause (1) of Article 329-A, no election of either the House of Parliament or of the person who holds the office of Prime Minister or who holds the office of speaker in the House of People shall be questioned except before an authority is appointed by the Parliament.
It was contended that, as per clause (2) of Article 329-A, decisions taken by authority or any body under such a provision shall not be questioned in the court of law.
The appellants submitted that, as per Article 329-A clause (3), the election petition that was pending against the person in respect of the election to either the House of Parliament or, in the case of the House of People, shall abate after such person is appointed as the Prime Minister or chosen for the office of the Speaker of the House of People.
It was claimed by the appellants that clause (4) of Article 329-A states that the law made by Parliament before the 39th Constitutional Amendment, 1975, which relates to election petitions or has been applied in relation to the elections, shall not be deemed to be void and will remain valid even after the commencement of the Amendment.
The appellants further stated that the appellant was nominated as a candidate for the Rae Bareli constituency on 1 February, 1971, and hence the findings of the High Court of Allahabad that the speeches given by Yashpal Kapur, the agent of the appeal, as per the instructions or orders of Indira Gandhi on January 7, 1971, and January 19, 1971, cannot be sustained as the appellant was not a nominated candidate at that time.
In addition to the above contentions, it was contended by the learned Attorney General that the country was going through a tough time when the emergency was declared. The decision of the constituent authority to restrict the power of the judiciary should be treated as a special power in the circumstances when the conditions were not usual and the country was surrounded by internal and external dangers. It was the requirement of the time to hold the office of the Prime Minister to be unconquerable.
The appellants also contended that the exclusion of the power of judicial review is not a negation of equality under Article 14. As per Article 33 of the Indian Constitution, it deals with the power of Parliament to modify the rights conferred by the Constitution in their application to specific groups to ensure the proper discharge of duties and maintenance of discipline, rather than upholding the principles of equality.
Hence, they submitted that the contention that the 39th Constitutional Amendment is constitutionally invalid does not hold any value because the legislature has acted in its sole capacity by introducing this Amendment and not by encroaching on the power of other organs of the government. Even in other countries, disputes related to elections lie solely within the jurisdiction of the legislature. Lastly, it can be stated that the 39th Constitutional Amendment is constitutionally valid.
Respondent
The first contention of the respondent was with regard to the Representation of People’s (Amendment) Act, 1974, and the Election Laws (Amendment) Act, 1975, that these two laws damage the basic features of the Constitution, such as judicial review. The constitutional validity of the 39th Constitutional Amendment was challenged as it also destroys the basic structure of the Constitution. In order to support this contention, reliance was placed on the case of His Holiness Kesavananda Bharati Sripadagalavaru vs. State of Kerala (1973), from which the doctrine of basic structure originated, and it was held that the Parliament cannot amend the basic structure of the Constitution.
The respondent contended that the democratic structure of the Constitution is destroyed by restricting the judiciary from making decisions on matters related to elections as valid or invalid. It is a matter of judicial determination as per Article 329 and Article 136 of the Constitution, which have been taken away from the judiciary.
It was further contended that it is a violation of the principles of equality as laid down in Article 14, and the said Amendment does not pass the test of reasonable classification as there is an unreasonable classification amongst the persons holding offices in higher positions and amongst other persons who are sitting in lower positions elected to the Parliament.
In respect of Article 14, it was argued that the rule of law is a basis for democracy and judicial review, and clause (4) of Article 329-A makes Part IV of the Representation of People’s Act, 1951, which deals with the administrative machinery for the conduct of elections, inapplicable to the election of the Prime Minister and Speaker of the House of People. Clause (4) of Article 329-A also limits the power of judicial review vested in the judiciary and the separation of the same by restricting it from dealing with matters related to elections.
Under English law, the power to hear election-related matters was vested in Parliament; however, in 1870, due to political unrest, the power was delegated to the judiciary.
It was contended that the main basis of free and fair elections is that no corrupt practices have been committed by the candidate himself or with his consent or prior knowledge either before the candidate is nominated for elections or after his nomination, which implies that the Amendment Act of 1975 destroys the concept of free and fair elections by not punishing the candidates who commit corrupt practices before they get nominated for the elections.
The main contention of the respondents was that the 39th Constitutional Amendment affects the basic framework of the Constitution by restricting the powers of the Court and detaining individuals without giving them a reasonable opportunity of being heard, which is beyond the amending power of Parliament given under Article 368.
It is also important to note that the 39th Constitutional Amendment was passed in the absence of some members of Parliament who had been detained unlawfully after an emergency had been imposed. They were illegally prevented from influencing any opinions. The detention of persons is not an act vested within the House of Parliament and is the act of other agencies.
It was contended that Section 4 of the 39th Constitutional Amendment, which added clause (4) to Article 329-A, would mean that the Parliament, acting in its constituent capacity, may decide the case by applying its own mind, and it would restrict the judiciary from going into the merits of the case.
Therefore, it was submitted that the 39th Amendment is irrational and holds no value; it not only destroys the basic features of the Constitution but also affects the rule of law and separation of power. It is also illegal, as, by way of its provisions, many political leaders were unlawfully detained under the detention laws.
Laws involved in Indira Nehru Gandhi vs. Shri Raj Narain & Anr. (1975)
Constitution of India
The Indian Constitution is the supreme law of the country. It was adopted on November 26, 1949, and came into force on 26th January, 1950. It is the lengthiest written Constitution in the whole world. Some of the provisions of the Constitution involved in this case are as follows:
Article 13 of the Indian Constitution
Article 13 states that laws that are not consistent with fundamental rights are considered to be void. The clause (2) of this Article states that the state shall not make any law that takes away or abridges the rights conferred under this part; any law made in contravention of this clause shall also be considered void.
Article 14 of the Indian Constitution
Article 14 provides that all individuals are equal before the eyes of the law and shall be treated equally. It also states that individuals enjoy equal protection under the law. This means that in similar situations, individuals will be treated in the same manner.
Article 31B of the Indian Constitution
Article 31B provides that the Acts and regulations mentioned in the 9th Schedule shall not be deemed to be inconsistent on the ground that they take or abridge the rights conferred in Part III of the Constitution. The Legislature can make amendments to the said Acts and regulations and repeal them.
Article 33 of the Indian Constitution
This Article provides for the power of Parliament to modify or make changes in the rights conferred by Part III in their application to the members of the armed forces, who are charged with the maintenance of public order, persons who are employed in any bureau or any other organisation established by the state, or persons employed with respect to the telecommunications system that has been set up for the purposes of forces.
Article 79 of the Indian Constitution
This Article deals with the Constitution of the Parliament, and it provides that there shall be a Parliament for the Union, which shall consist of the President and two houses, which are to be known as the Council of States and the House of People.
Article 85 of the Indian Constitution
This Article deals with the sessions of Parliament in which the President shall, from time to time, summon each House of Parliament as per the time and place that he deems fit. However, there shall be a maximum gap of 6 months between the first and last sittings of Parliament. Clause (2) provides that the President may, from time to time, prorogue the houses, or he may dissolve the House of People (Lok Sabha).
Article 102 of the Indian Constitution
This Article deals with the disqualifications for the membership of either House of Parliament. It states that a person shall be disqualified for being chosen and for being a member of either House of Parliament on the following grounds:
If he holds any office under the Government of India or under any state government.
If he is declared a person of unsound mind by the competent court.
If he is an undischarged insolvent.
If he is not a citizen of India and has voluntarily acquired the citizenship of a foreign country as per the provisions of the same.
If he is disqualified under any law of Parliament.
Lastly, if the person is disqualified as per the 10th schedule of the Constitution, which deals with the provisions as to disqualification on grounds of defection.
Article 105 of the Indian Constitution
This Article deals with the powers and privileges of the House of Parliament and its members. It provided for these freedoms:
There shall be freedom of speech in Parliament.
The members are immune from any court proceedings in relation to anything said or any vote given by them in Parliament.
No person shall be liable with regard to the publication by any authority of either House of Parliament of any report, paper, vote, or proceeding.
Article 122 of the Indian Constitution
This Article restricts the courts from inquiring into the proceedings of the Parliament. It states that the proceedings held in Parliament shall not be questioned in the court of law on the ground of any irregularity in the procedure. It further provides that no office or member of Parliament shall be subject to the jurisdiction of courts in relation to the powers vested in him by the Constitution.
Article 136 of the Indian Constitution
This Article deals with the special leave petition that the Supreme Court may grant in its discretion to appeal from any judgement, decree, determination, sentence, or order in any matter that has been passed by any court or tribunal in the territory of India. This provision is not applicable to the laws relating to the Armed Forces.
Article 262 of the Indian Constitution
This Article deals with the adjudication of disputes relating to waters or inter-state rivers for which the Parliament may by law provide for the adjudication of such disputes. The Parliament may, by law, provide that there shall be interference by the Supreme Court or any other court in dealing with cases of water disputes.
39th Constitutional Amendment, 1975
The 39th Amendment to the Indian Constitution came into force on August 10, 1975, which is a significant amendment wherein the Indian judiciary was barred from making decisions with respect to the elections of the President, Prime Minister, Vice President, and Speaker of the House of People. The amendment was specifically passed as a result of the decision given by the High Court of Allahabad, wherein the election of Indira Nehru Gandhi as the Prime Minister to the House of People was held void after Shri Raj Narain objected to the election by way of filing a petition.
Article 329-A was introduced by way of this amendment, which is a crucial point of discussion in the case of Indira Nehru Gandhi vs. Shri Raj Narain (1975).
Article 329-A of the Indian Constitution
Article 329-A was inserted as a new provision under Part XV of the Indian Constitution by way of this amendment. Clause (1) of this Article restricted the powers of the judiciary to question the election of the Prime Minister and of the Speaker of Lok Sabha unless an authority has been appointed by the Parliament in that case. Under clause (2), it is provided that no court shall make a challenge to the authority that has been appointed under clause (1) in accordance with the law. Clause (3) of Article 329-A states that, as per Article 329, the election petition that was pending against the person who has been appointed as the speaker of the House of People or the person who has been appointed as the Prime Minister shall abate.
Clause (4) of Article 329-A states that the law made by Parliament before the 39th Constitutional Amendment, 1975, which related to election petitions, shall not be deemed to be void and will remain valid even after the commencement of this amendment.
Clause (5) states that the appeal or cross-appeal that has been pending against the order as passed in clause (4) before the Supreme Court shall be solved in accordance with the requirements laid down in clause (4).
Article 329 of the Indian Constitution
This Article barred the jurisdiction of courts from dealing with questions pertaining to or the law relating to the delimitation of constituencies or the allotment of seats made under Article 327 or Article 328. It further provides that no election to either House of Parliament or to either house of legislature shall be called into question except on an election petition presented to such authority.
Article 359 of the Indian Constitution
According to this Article, the fundamental rights guaranteed under Part III of the Indian Constitution shall be suspended in cases of proclamation of emergency. When the proclamation of emergency is in operation, the President may, by order, declare that no one shall move to the Court during that time for the enforcement of their fundamental rights; however, Articles 20 and 21 are excluded from this.
Article 368 of the Indian Constitution
Article 368 provides that the Parliament, by exercising its constituent power, may add, vary, or repeal any provision of the Constitution as per the specified procedure in this Article. Clause (2) of this Article provides that the process of amendment in the Constitution may be started by introducing the bill for the said purpose in either house of Parliament. Once the bill is passed in each house by a majority of not less than two-thirds of the members of that house who are present and voting, it shall be sent to the President for the purpose of receiving his assent. In the proviso, it is given that if such amendment seeks to amend provisions laid down in clauses (a)-(e), then the said amendment shall require the approval of the legislatures of not less than one-half of the states, and it is to be done before the bill has been sent to the President for the purpose of receiving his assent. Further, in clause (3), it has been given that Article 13 shall not apply to amendments made under this Article.
Representation of People’s Act, 1951
This Act was enacted prior to the first general elections by the Indian Provincial Parliament. The Act provides for provisions with regard to the election, including the actual conduct of elections, qualifications, and disqualifications of the members of both Houses of Parliament and State Legislature, i.e., the House of People (Lok Sabha) and Council of States (Rajya Sabha) of Parliament and State Legislative Assembly and Legislative Council of State Legislature. It also discusses the other important provisions of elections, such as the nomination of candidates, registration of political parties, general procedure at elections, disputes regarding elections, etc.
Section 100 of the Representation of the People’s Act, 1951
This section deals with the grounds for declaring an election void. It states that if the High Court is of the opinion that:
A returned candidate was not qualified on the date of the election.
Any corrupt practice has been committed by him.
Any nomination has been improperly rejected, and
The result of the candidate has been affected by improper acceptance, corrupt practices, improper rejection, and non-compliance with the provisions of the Constitution.
However, if the High Court is satisfied that no corrupt practice was committed by the candidate or that the candidate took all reasonable steps to prevent the commission of such practices, then the High Court shall not declare the election of the candidate to be void.
Section 123 of the Representation of the People’s Act, 1951
This section provides a list of acts that shall be deemed to be corrupt practices. It includes the following:
Bribery, which includes the gift, gratification, or any promise by a candidate or his election agent to any person with an object to induce him.
In the explanation provided within this clause, it is mentioned that the term ‘gratification’ used herein not only includes pecuniary gratification but also includes all other forms of entertainment and employment rewards. However, it does not include the expenses incurred during the time of the elections.
Undue influence,
Influencing the candidate to refrain from voting for any person on the basis of his religion, race, caste, community, or language,
If any attempt is made to promote the feeling of enmity or hatred between the different classes of persons on the basis of their religion, race, caste, community, or language,
Any propagation of the practice of Sati or the glorification of this practice by the candidate himself or by his agent,
Hiring a vehicle or a vessel by the candidate for the purposes of free transportation of an elector to the polling station,
Obtaining or procuring or abetting or attempting to obtain any assistance from the gazetted officers, members of the armed forces of the Union, police forces, excise officers, judges and magistrates, revenue officers, or such other class of person as the government may authorise,
Capturing the booth by a candidate or his agent.
In the explanation, it is given that the agent here would mean the election agent, a polling agent, or any other person who has been appointed to act as an agent for the purposes of electing that candidate.
Precedents involved in Indira Nehru Gandhi vs. Shri Raj Narain & Anr. (1975)
A.K. Gopalan vs. State of Madras (1950)
This is a landmark case that revolves around the Preventive Detention Act, 1950, in which the government allowed the individuals to be detained without conducting their trial. The petitioner, A.K. Gopalan, contended that this law is unconstitutional and violates the principles of natural justice by depriving the citizens of a fair trial. It was contended that it was a violation of Articles 14, 19, and 21 of the Indian Constitution. The Supreme Court stated that individuals can be detained if they are considered to be a threat to the national security of the country, and the Court upheld the validity of the said Act and also stated that there is no relation between Articles 19 and 21 of the Constitution.
K. Anandan Nambiar vs. Chief Secretary, Government of Madras (1965)
In this case, members of the Madras Legislative Assembly were detained under Rule 30(1)(b) of the Defence of India Rule, 1962. They challenged the validity of said rules, stating that they are invalid on the grounds that a legislator cannot be detained in order to prevent him from exercising his constitutional rights when the chamber to which he belongs is in session. The Supreme Court held that the members could not claim a special status as compared to an ordinary citizen and are liable to be arrested or detained even when they are sitting in a session of the state legislature.
In the following cases, namely, Jayantilal Shodhan vs. F.N. Rana (1963), Chandra Mohan vs. State of Uttar Pradesh (1966), and Udai Ram Sharma vs. Union of India (1968), it was observed that the doctrine of separation of powers is not similarly applicable to India, as here it has a broad application unlike other countries like America and Australia wherein it is applied in a rigid manner; however, in India it is not applicable in a rigid manner. The election disputes were primarily dealt with by the courts under common law, whereas under Indian law, Parliament possesses all powers with respect to dealing with the election disputes and matters related to them.
Kanta Kathuria vs. Manak Chand Surana (1969)
In this case, an advocate stood as a candidate for election to the State Legislative Assembly of Rajasthan, and he was elected. The said election was challenged on the ground that he held an office of profit as per the provisions of Article 191 of the Indian Constitution and, hence, he is liable to be disqualified. The High Court set aside his election. The appellant advocate presented an appeal before the Supreme Court, while the Rajasthan government passed an Act that retrospectively removed the disqualifications of the appellant. The Supreme Court held that the appellant was not holding an office of profit, and the Parliament and State Legislatures can make laws that have retrospective operation subject to the provisions of the Constitution.
Ram Dayal vs. Brijraj Singh (1969)
In this case, the respondent, Briraj Singh, was elected to the Madhya Pradesh Legislative Assembly. The appellant, who was a voter in the said constituency, challenged his election on the ground that the nomination paper filed by the respondent was illegally rejected by the returning officer and that the respondent has committed corrupt practices. He had taken election expenditures from the Maharaja and Rajmata of Gwalior, which exceeded the limits as per the State Legislature. On account of the insufficiency of evidence and the absence of reliable proofs against the respondent that he has exceeded the limits of election expenditures, the Supreme Court dismissed the writ petition filed by the appellant.
Kesavananda Bharati vs. State of Kerala (1973)
This is a landmark case wherein the validity of the 24th Constitutional Amendment, 1971, the 25th Constitutional Amendment, 1971, and the 29th Constitutional Amendment, 1972, were challenged on the grounds of being unconstitutional as they violated the fundamental rights of the petitioner given under Article 19(1)(f) of the Constitution. The judgement was pronounced by a 13-judge bench with a majority of 7:6. The case is of utmost importance as it propounded the doctrine of basic structure. While looking into the scope of the powers of Parliament and whether it has the power to amend the Constitution, the Court held that the powers of Parliament to amend the Constitution are not unlimited or unfettered, and they cannot amend the basic or fundamental structure of the Constitution. The case also overruled the judgement given in the case of I.C. Golaknath vs. State of Punjab (1967), wherein it was held that the Parliament has the power to amend any part of the Constitution. The doctrine of basic structure implies that the Legislature cannot make changes in certain parts of the Constitution which destroys its basic structures, which include the constitutional supremacy, secularism, federal structure, judicial review, separation of powers, etc.
Judgement in the present case
The Supreme Court, in its judgement, held that Article 329-A, added by way of the 39th Constitutional Amendment, 1975, is unconstitutional and void. However, with respect to other issues, the Court gave the judgement given below.
Issue-wise judgement
Whether the election of Indira Gandhi was valid
The Supreme Court, in its judgement, held that the election of the appellant, Indira Nehru Gandhi, was valid. The Court allowed the appellant to continue to serve as the Prime Minister of India, as the Court did not find sufficient evidence against the alleged malpractices conducted by the appellant. Further, the Court stated that her personal expenses that had been incurred during the elections cannot be counted as the election expenses of the party, and the Court rejected the claim of Shri Raj Narain against Indira Nehru Gandhi that she had exceeded the limits of her expenses during the elections. While dealing with the allegation made against Yashpal Kapur, who was a government officer who resigned from his post on 13th January, 1971, to the President and ceased to be a government official whom Indira Gandhi appointed as her election agent, the Court stated that there is no clear evidence against him for supporting Indira Nehru Gandhi by giving speeches. The Supreme Court set aside the order of the High Court of Allahabad barring the appellant from contesting elections for another six years. The Court allowed her to continue to serve as the Prime Minister of India by overruling the judgement of the Allahabad High Court.
Whether the Representation of People’s (Amendment) Act, 1974, and the Election Laws (Amendment) Act, 1975, are constitutionally valid
In the said issue, the court refused to look into it and stated that it is a matter between two houses of Parliament, and the validity of enactment depends upon the power of the legislature, subject to the exception laid down in Article 13, which talks about judicial review. The court upheld the power of Parliament given under Article 368 to make amendments with regard to the elections. The court referred to Article 122, which restricts it from inquiring into the proceedings of Parliament. The court stated that it is the power of Parliament and not of the courts to regulate matters pertaining to elections, such as the delimitation of constituencies, grounds of disqualification, election expenditures, etc. The Supreme Court upheld the validity of the Representation of People’s (Amendment) Act, 1974, and the Election Laws (Amendment) Act, 1975. The Court stated that even if the members were absent during the discussion of these amendments, the Parliament acted within its constituent powers in making those legislations and hence, they are valid.
Whether Article 329-A clause (4) of the Constitution of India is valid
While dealing with the third issue, primarily the Court stressed the violation of principles of natural justice, i.e., ‘Audi Alteram Partem’, which implies that no one should be condemned unheard and everybody should be given a fair opportunity of being heard. The Apex Court, while determining the validity of the 39th Constitutional Amendment, 1975, stated that it has created an unreasonable difference between the ‘persons who hold office’ and ‘other persons who were elected to the Parliament’ and that it also violates the principles of equality laid down under Article 14 of the Constitution. The Court opined that the said classification made between the members of Parliament was unreasonable and hence, was not based on intelligible differentia. It was also stated by the Court that judicial review and rule of law are the basic principles of the Constitution, and they cannot be set aside.
The Court referred to the landmark judgement of Kesavananda Bharati vs. State of Kerala (1973), in which the basic structure doctrine was established. According to the doctrine of basic structure, the Parliament can amend or modify the Constitution, subject to one exception that is it cannot amend the fundamental or basic structure of the Constitution. It was stated that the power of Parliament to make amendments under Article 368 is not unfettered or unlimited, and it cannot undermine the basic structure. Through a series of judgements, the Court identified several elements of the basic structure that include the supremacy of the Constitution, separation of powers, judicial review, secular and federal features of the Constitution, etc. Therefore, with the above reasoning, the Court held that Article 329-A clause (4) is unconstitutional and inconsistent with the Fundamental Rights as enshrined under Part III of the Indian Constitution.
Rationale behind this judgement
The court, while pronouncing the judgement, looked into various aspects that are given below:
The Constitutional Amendment that was introduced by Parliament impacts the basic institutional pattern of the Constitution by depriving the judiciary of exercising its jurisdiction in order to determine the validity of an enactment, which ultimately violates the basic features of separation of power and independence of the judiciary.
Articles 14 and 16 of the Constitution, which deal with equality before the law and equality in opportunity, are the basic tenets of the Constitution and are laid down in the Preamble as well. It is the duty of Parliament to establish such equality. Though Articles 31A and 31B restrict the scope of judicial review, that does not mean that the legislature can act according to its whims and fancies. Whatever kind of classification it is, the classification made by the legislature should be made in the public interest.
The theory of basic structure is not definable, and the doctrine of pith and substance has to be taken into account in order to find whether the legislature is competent or not and to eliminate the illegal encroachment of the legislature.
With regard to the contention regarding the Amendment Act of 1974 and 1975 that they are subjected to the doctrine of basic structure, the Court stated that the said contention fails on two grounds: firstly, that the legislative measures do not come under the basic features, and secondly, the majority view in the landmark case of Kesavananda Bharati vs. State of Kerala (1973) held that the amendment in question, i.e., the 29th Amendment, which added Article 31-B, was not challenged on the ground that it destroys or damages the basic structure.
With respect to the decision of the High Court that Indira Gandhi committed corrupt practices as per the provisions of Section 123(7) of the Representation of People’s Act, 1951, and that the government officers of Uttar Pradesh assisted her, especially the District Magistrate, Superintendent of Police, and others. It is pertinent to mention that the duties that these officers performed were done in their official capacities and in pursuance of official directions.
Analysis of the case
The case of Indira Nehru Gandhi vs. Raj Narain (1975) is a significant precedent set by the Apex Court, which not only upholds the doctrine of basic structure again but also states that the powers of Parliament are not unfettered or unlimited and that they are subject to certain exceptions. The Supreme Court upheld the supremacy of the Constitution and laid down that the Constitution is above all and that the judiciary is the protector and guarantor of the Constitution. This case also sustained the two important principles of the Constitution, which are the separation of powers and judicial review. This case pertains to the conduct of elections, wherein the people of a country choose their representative with faith that he or she will work for the welfare of the people. The elections should be conducted in a free and fair manner so as to provide the citizens with an opportunity to elect the most deserving and honest candidate.
The Court also affirmed the principles of equality, wherein it stated that everyone is equal in the eyes of the law and no one should be treated unequally. Everyone shall be governed by the same law. The sudden introduction of the 39th Constitutional Amendment, 1975, by the government amidst the declaration of emergency, which added Article 329-A, showed that the government acted in an arbitrary manner, and by holding it invalid and unconstitutional, the Court affirmed that the rule of law is supreme and not the arbitrary exercise of powers by the government.
It is also pertinent to note that, after the judgement was pronounced by the Allahabad High Court, Indira Gandhi went through a lot of criticism, due to which she decided to impose a state emergency on June 25, 1975, on the grounds of internal disturbance and threat to national security. This emergency led to the suspension of fundamental rights enshrined in the Indian Constitution. The opposition parties announced 25th June, 1975 as the ‘black day’ in the history of India, as many political leaders, journalists, and activists were also arrested. The period of emergency led to various political movements and events across the country, which led to agitation in Bihar and Gujarat. All of these events, along with the judgement pronounced by the Allahabad High Court for barring Indira Gandhi from contesting elections, created an unstable environment all over the country. It further led to various controversial issues, which included the removal of slum areas and forced sterilisation campaigns started by Indira Gandhi’s son, namely, Sanjay Gandhi, which also raised the issue of human rights violations. After the emergency was lifted in 1977, it also led to the end of the darkest chapters in the history of India after the independence period.
Conclusion
It can be concluded that time and again the judiciary has played a great role in upholding the supremacy of the Constitution and its important principles like equality before law, equal protection of law, separation of powers, rule of law, etc. The judiciary always acts as a watchdog against the arbitrary actions of the state government. The Supreme Court affirmed the doctrine of separation of powers and held that Parliament cannot act alone and take all decisions that are not even in its sphere, and it should act within its scope of powers without interfering with the decision-making power that is vested in the judiciary.
Frequently Asked Questions (FAQs)
What is the doctrine of separation of powers?
The doctrine was propounded by Montesquieu, who was a French judge. It refers to the division of powers among the different organs of the government, which are the legislative, executive, and judiciary. Under the Indian Constitution, Article 50 deals with the division of powers between the judiciary and the executive. The main objective of this doctrine is to prevent the abuse of power.
What was the political impact of the case?
The period of emergency had a great impact on Indian politics, resulting in various political movements across the country. It created an unstable environment across the country, which included the agitation in Bihar and Gujarat, the removal of slum areas, and forced sterilisation campaigns started by Sanjay Gandhi, the son of Indira Gandhi, which also raised the issue of human rights violations.
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This article was written by Thejalakshmi Anil. This article provides an in-depth analysis of the landmark case of Shabnam Hashmi vs. Union of India & Ors (2014) and the adoption laws of India. This article further delves into the applicability of the Juvenile Justice Act, 2000, in matters of adoption. It examines the facts, legal issues, arguments, and judgement of this case. The article also provides an overview of the adoption laws in the country.
Table of Contents
Introduction
Adoption is the process by which the adopted child becomes the lawful child of his/her adoptive parents, enjoying all the rights, privileges and responsibilities that are attached to a biological child. There are over three crore orphaned children in India, however, only around 2000 children are available for adoption each year. Moreover, some 30,000 prospective parents have to wait for around three years to bring home their adopted child. Leaving aside the practical difficulties of this process, up until 2014, the complex personal law landscape also added to the difficulties of adopting a child. Since adoption, for a long time, was governed by personal laws, members of certain religious communities like Islam, Christianity, Judaism and Zoroastrianism were prohibited from adopting children as it was not permissible under their personal laws. Up until then, the adoption laws only allowed for Hindus, Buddhists, Sikhs and Jains to be legally recognised as adopted parents.
However, this underwent a change with the Supreme Court decision in the landmark case of Shabnam Hashmi vs. Union of India (2014). In this case, the Supreme Court provided a secular avenue for the adoption of children by recognising the right of the community to adopt inspite of their personal law. Hence, the court centralised the welfare of the child in this case. This ruling by the Apex Court was considered as a step towards a Uniform Civil Code in India by holding that Muslims could also adopt under the Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act 2000) and the rules following from it, especially the Juvenile Justice Amendment, 2006, providing a much needed channel for secular adoptions. In this article, we will be discussing the facts of the case along with a look at the diverse adoption landscape in the country including the personal laws of Hindus and Muslims, and the Juvenile Justice Act to understand the complex legal landscape of adoption in the country.
Details of the case
Name of the case: Shabnam Hashmi vs. Union of India & Ors
Equivalent citations: (2014) 4 SCC 1 AIR 2014 SUPREME COURT 1281, 2014 AIR SCW 1329, 2014 (2) AKR 185, AIR 2014 SC (CIVIL) 969, 2014 (2) ABR (CRI) 34
Laws involved: Articles 21 and 44 of the Constitution of India and Section 41 of Juvenile Justice (Care and Protection of Children) Act, 2000
Facts of the case
In this case, a Public Interest Litigation (PIL) was filed by the petitioner, requesting the Supreme Court to recognise the right to adopt and be adopted. The petitioner also alternatively petitioned the court to lay down guidelines that would enable the adoption of children by individuals irrespective of religion, caste, creed or other factors. The petitioner, Mrs Hashmi, had taken her adopted daughter under her custody in 1996 and decided to adopt her in 2005. While completing the paperwork, she had selected the ‘non-Hindu’ column and was told that the girl would only become her ward and the couple would only be recognised as guardians of the child. Consequently, the child would not be considered on par with a biological child and would also not be able to inherit property under the Muslim personal inheritance law. Subsequently, the petitioner filed an application under Article 32 of the Constitution and waged an eight-year battle to be legally recognised as the parent of her adopted child.
However, in 2006, the Union Government submitted a counter affidavit to the court arguing that the petitioners and other prospective adoptive parents could use the provisions of the amended Juvenile Justice (Care and Protection of Children) Act, 2000 (‘JJ Act 2000’) in order to adopt regardless of their religion. This Act recognised adoption as a method for the rehabilitation and social reintegration of children in need of care and protection in addition to other modes like foster care and sponsorship. Additionally, the JJ Act 2000 has given statutory recognition to the guidelines laid down by Central Adoption Resource Agency (CARA) which was established in 1989 in order to facilitate both inter-country and intra-country child adoption.
The Union Government also provided information relating to the Child Welfare Committees (CWCs) and State Adoption Resource Agencies (SARAs) relating to their functioning. The Union noted that at the end of 2013, CWCs were functioning in 619 districts across the country. However, it was also noted that there were undue delays in the processing of adoption cases at the level of CWC despite the schedules which were laid down in the 2011 guidelines and the Juvenile Justice Rules of 2007. It was also noted that at the end of 2013, the SARAs were set up in 26 States and Union Territories. This was done in order to highlight the progress made in implementing the adoption related infrastructure across the country but also to point out the issue of delays in adoption at various levels.
Issues raised
Is there a fundamental right to adopt and for a child to be adopted under Article 21 of the Constitution?
Does the Juvenile Justice Act govern the adoption of a Muslim child?
Arguments of the parties
Petitioners
The petitioner asserted the right to adopt and be adopted is a fundamental right under Part III of the Constitution. The petitioner argued that the right of a child to be adopted should fall under the ambit of a fundamental right under Article 21 of the Constitution. The petitioner also requested the court to lay down guidelines which would then facilitate the adoption of children in a secular fashion notwithstanding factors like religion, caste, creed etc.
The petitioner also pointed out that JJ Act, 2000 is one such act which facilitates the adoption regardless of religion. It was also argued that this act is similar to the Special Marriage Act, 1954 which provides an avenue for secular marriages and allows inter-religious marriages.
CARA Guidelines also plays a crucial role in the shaping and regulating of the Indian adoption systems by establishing comprehensive norms for both inter-country and intra-country adoptions. These guidelines were given statutory recognition and legal force throughout the country and also gives a detailed procedural framework which covers various aspects of adoption. This includes guidelines for the pre-adoption process to declaring a child free for adoption and also provisions for post adoption. Therefore, the CARA guidelines played a significant role in supplementing the Juvenile Justice Act with specific procedures and details. This enabled the formation of a standardised approach to adoption throughout the country. These guidelines were formulated in order to centralise child welfare in line with judicial precedents. They also strike a balance between national uniformity while at the same time allowing certain regional flexibility by enabling states to adopt and notify the guidelines for use in their respective jurisdiction.
Respondent
The All India Muslim Personal Board (AIMPLB) argued that the Muslim Personal Law does not recognise adoption as a concept. Therefore, they argued that declaration of adoption under Article 21 would not be valid. They also did not agree that the JJ Act should be applied. According to the AIMPLB, adoption is simply one of the ways for taking care of the child. There are other modes like foster care and sponsorship which also exist for taking care of an abandoned child. They also brought to the attention of the court the concept of ‘Kafala’ system. Under this system, the child is placed under a guardian-like figure called ‘Kafil’ who would provide for the welfare of the child. This includes both legal and financial care. However, this is different from adoption under Muslim law.
Adoption under Muslim law does not mean the child would be recognised on the same level as a biological child. The adopted child would still remain a true descendant of the child’s biological parents. It was contended that the Kafala system is recognised by the UN Convention on the Rights of the Child under Article 20(3). Therefore, the argument raised was that principles of Islamic law should be kept in mind before declaring a Muslim child to be available for adoption under Section 41 of the JJ Act, 2000.
Adoption in Islam
In Islamic law, the concept of adoption is not permitted. This system which is called Al Tabani, creates ties with the adoptive parents and severs links with the biological ones. The prohibition comes from Islamic concerns around lineage, inheritance and consanguinity. Despite this, Islam does give importance to caring for orphans and abandoned children even making it a religious duty, Additionally, in Islam, there is an emphasis on the importance given to the welfare of the child and care for the orphans.
However instead of formal adoption, Islamic law provides for alternative arrangements of child care. This includes systems like the Kafala system and other arrangements similar to fostering wherein the child would retain the original lineage and inheritance rights.
The main contrast between Islamic and Western laws on adoption comes from how they look at a child’s origins and family ties. Islamic law puts emphasis on retaining the original biological connections. Whereas under western law, there is a severing of the biological ties legally when a child is adopted. Therefore this difference affects inheritance rights within the biological family and also marital restrictions between the adoptive and adopted family members.
Western adoptions often change the child’s surname and grant full inheritance rights to adoptive parents. However in Islamic law the child maintains their original name and keeps inheritance ties with the biological family. Western adoptions create legal barriers to marriage within the adoptive family. But there is no such restriction imposed under Islamic laws. The legal status of adopted children also differs. Under Western systems adopted children are given equal rights to biological children. However Islamic alternatives like kafala provide care without changing legal status.
Despite this, in several Muslim countries there are informal adoptions being carried out despite the legal prohibitions. This shows a gap between the law and practice. Moreover, since there exist a large number of orphans who have been abandoned in these counties, calls have been made to reexamine these traditional notions and interpretations.
Adoption laws in India
India’s adoption laws exhibit a complex landscape, reflecting the cultural and religious nature of our country. Three primary legislative frameworks govern adoption and guardianship: the Hindu Adoptions and Maintenance Act, 1956 (HAMA), specific to the Hindu community; the Guardians and Wards Act, 1890 (GAWA), which applies to non-Hindu communities; and the Juvenile Justice Act, 2015 (JJ Act), a secular law applicable to all communities.
The Hindu Adoptions and Maintenance Act, 1956
Under Hindu Law, adoption was considered as a sacramental act with the institution of ‘sonship’ being as important as marriage. Having a son was considered as a religious obligation for Hindus. The object of adoption was recognised as being twofold: firstly, to secure the performance of funeral rites and secondly to preserve the continuity of the lineage of a person. However, the main purpose of adoption in modern law is to provide consolation and relief to a childless couple and also provide a home to a destitute or orphaned child.
The HAMA is the codified law which governs the adoption amongst the Hindus. While it governs the adoption of only Hindus, it is a secular act in the sense that it does not requrie a religious ceremony for adoption. Whatever motive a person adopting may have, whether its religious or secular, the act of adoption under this act is essentially considered as a secular act.
Adoption under Hindu law, creates a fictive relationship between the adopted child and parents. This enables a childless person to create a legal relationship with a child who is not biologically his. Therefore, with adoption, the child would effectively sever his ties with the natural family and be transplanted into the family of his adoptive parents. This meant that the child could not marry the biological child of his/her adopted parents whether the child is adopted or natural. Therefore, the adoptee gets the natural born son’s rights and privileges in the adopter’s family and loses the same in his natural family. Under Section 15, an adoption validly made cannot be cancelled by the adopter, natural parents or any other persons.
Both a Hindu male and female can adopt a child. With respect to the capacity of an individual to adopt, the person should be a major and of sound mind. If the Hindu male or female is married, then it is necessary to obtain the consent of their spouse before adoption. Adoption without the consent of the wife or husband is void under Sections 7 and 8 respectively.
Section 11 of the Act also lays down certain conditions for adoption:
The adoption of a son can only be done as long as the adoptor does not have a Hindu son, son’s son, or son’s son’s son. An exception is that, if they have ceased to be Hindu, then the adoption of a son would be valid.
The adoption of a daughter can only be done if the person does not have a Hindu daughter or a son’s daughter.
Two persons, who are not husband and wife, cannot adopt the same child. This means that two sisters, brothers or friends may not adopt the same child.
There is also an age difference which should be followed for adoption of a child of the opposite sex. In such instances, the adoptive parent should be older than the child by at least 21 years.
Section 10 also lays down certain criteria for who may be taken in adoption. In accordance with this section, it is necessary that the child must be Hindu. The adoption of a Muslim or Christian child by a Hindu would not be governed by this act. While under the old law, an orphan, foundling or abandoned child could not be adopted, under the modern law, adoption is recognised as a mode to solve the social problem of the plight of orphaned, abandoned and refugee children. HAMA also lays down that the child should not be older than 15 unless a custom exists to that effect. For instance, in accordance with Bombay and Punjab customary law, there is no such prescription with respect to age. The adoption of a married child is also prohibited unless there is a custom to the contrary. Such a custom is permitted among Jats in Punjab.
Section 11(vi) lays down the performance of the ceremony of giving and taking for adoption. This ceremony must be performed by the giver and taker or by any other person under the authority of the giver or taker. No specific Shastric or customary is necessary.
However, the HAMA does have significant drawbacks. Firstly, HAMA does not have comprehensive monitoring mechanisms to verify the origin of the adopted children or assess how suitable the adoptive parents are. This lack of oversight has raised concerns about misuse. Secondly, it is also argued that HAMA is largely parent-centric, which could inadvertently lead the welfare of the child to take the backseat. The focus of HAMA has primarily been to provide a successor to a ‘son-less’ family for purposes of inheritance, succession, and funeral rites. Even with the adoption of daughters under HAMA, there exists a religious significance, particularly for the practice of ‘kanyadaan’ (the giving away of a daughter in marriage). While these cultural aspects play an important role in the religious beliefs of the members of the community, this might overshadow the need to look after the welfare of the child.
Guardians and Wards Act, 1890
The Guardian and Wards Act (GAWA), 1890, is a consolidating and amending statute, with provisions of scattered statutes enacted previously being consolidated under this Act. The GAWA allows non-Hindu communities to take a child into ‘guardianship,’ providing an alternative to full adoption. This is a complete code which defines the rights and remedies available to guardians and wards. It regulates and governs all matters relating to guardianship, which includes clarification of the rights, obligations and responsibilities of the certificated guardian, the removal and replacement of guardians and remedies of the ward. Therefore, when a natural guardian, regardless of their religion, seeks to establish their right as guardian of the child or seek custody of or access to the child, they should proceed under the Act and not under a civil suit. Even when a natural guardian wants to recover the custody of his child from a person he entrusted the child with, the remedy yet again is an application under the Act and not a civil suit.
The Act only governs guardians of property or persons of the minority. The other kinds of guardians, such as those of marriage or in litigation, fall outside the purview of the act. Moreover, like HAMA, GAWA is silent on the specific issues of orphaned, abandoned, and surrendered children, which are the focus of the JJ Act.
Adoption under JJ Act, 2015 is the process by which the biological ties between the adoptee are severed and fictive legal ties are established between the adoptee and adoptive parents. As under the Act, any child who is not above the age of eighteen years can be adopted. Chapter VIII of the Act lays down the process of adoption. Section 56 lays down that adoption shall be resorted to to ensure the right to family for orphaned, abandoned and surrendered children. While HAMA only applies to Hindus, section 56 states that nothing in the Act would apply to the adoption of children under HAMA. Therefore, considering the differing age restrictions under both Acts, an adoption of an 18 year old would be valid under the JJ Act, 2015 but not the HAMA. Additionally, the JJ Act, 2015 does not place a bar on parents of having natural children of the same sex to adopt under the Act which is a bar under HAMA.
The adoption process under the JJ Act is also much more detailed and descriptive in comparison to the HAMA. In order to adopt under the JJ Act, the adoptive parents need to register with the CARA through an online portal. Following this, a home study is conducted by a specialised agency which would assess how suitable the adoptive parents are. Once this evaluation is done thoroughly, an assessment is made as to whether the parents can be considered eligible for adoption. The act also ensures that children are legally declared free for adoption before being matched with prospective parents.
Therefore, while this process is more rigorous, it creates a more transparent and accountable system of adoption. This helps to address the concern which was raised with respect to the adoption under HAMA, concerning issues of child trafficking and unsuitable adoptive parents. However, the stringency of the JJ Act process means that it has led to significant delays in adoption. For instance, consider the imbalance between the available children and prospective parents under the CARA system. Reports show that only around 2,000 children are available for adoption, compared to over 30,000 prospective adoptive parents registered in the system. This leads to an extended waiting period of three or more years leading adoptive parents to seek less regulated alternatives for adoption.
The amendment brought to the JJA in 2021 through the Juvenile Justice (Care and Protection of Children) Amendment Act in 2021 gave a significant amount of power to the District Magistrate for the process of adoption. This was done in order to address the significant delay in disposing of matters related to adoption since earlier this role was primarily reserved for the court. This amendment also gave the District Magistrate the power to inspect childcare institutions. However, this move has also been critiqued as to whether the Magistrate can deal with matters related to children as precisely and technically as a specialised body.
Laws/ concepts involved in Shabnam Hashmi vs. Union of India & Ors. (2014)
Indian Constitution, 1950
Article 44 of the Constitution
Article 44 falls under Part IV of the Indian Constitution which lays down the Directive Principles of State policy. This Article lays down that the State shall endeavour to enact a Uniform Civil Code (UCC) for the citizens of the country. This aims to provide a uniform set of laws for personal matters like marriage, divorce, inheritance and property of all citizens regardless of their religious beliefs or community. Ultimately, it aims to unify the varied regime of personal laws existing in India which differ among the different religious communities. This concept has been a subject of long-standing debate in India’s socio-legal landscape, arising from the country’s diverse religious and cultural background.
In the present case, the court regarded the JJ Act, 2000 as a small but significant milestone towards achieving the goal which has been enshrined in Article 44 of the Constitution. The court, while acknowledging that the article is an aspirational goal also recognised that there exists conflicting viewpoints still between different communities on matters of adoption and personal laws. However, the court also noted that this goal has not yet been fully actualised and emphasised the need for judicial restraint on the same. The Apex Court shared a similar viewpoint in cases such as Lily Thomas vs. Union of India (2000)and John Vallamattom vs. Union of India (2003). The court suggested that the UCC can only be implemented by the collective decisions of future generations to reconcile conflicting faiths and beliefs currently active in society. The court while recognising the JJ Act as progress acknowledged that India is still far from achieving the constitutional vision of UCC due to prevailing differences in personal laws and beliefs among the different communities.
Juvenile Justice Act, 2000
Section 41 of Juvenile Justice Act
Section 41 of this Act lays down the adoption framework in India. It provides that a child’s primary care should come from their family, but adoption is a way to help orphaned, abandoned, or surrendered children. The courts oversee the process of adoption, ensuring proper investigations are done by the officials before adoptions are approved, following government guidelines. Each district must have specialized adoption agencies recognized by the state government to handle these cases.
The section also outlines conditions for adoption, such as a waiting period for surrendered children and requiring consent from children old enough to understand the process. It expands who can adopt, allowing single individuals, parents with children of the same sex as the adoptee, and childless couples to adopt.
Relevant judgements referred to in the case
Lakshmi Kant Pandey vs. Union of India (1984)
This case arose out of a letter written by the petitioner, who was an advocate of the Supreme Court. The petitioner complained of malpractices engaged in by certain social organisations and voluntary agencies wherein Indian children given for adoption to foreign parents are ill-treated. The court laid down elaborate guidelines to protect and further the interests of the child in the case of inter-country adoption. These guidelines include speeding up procedures for abandoned children, issuing faster release orders, and exploring adoption options with both Indian and foreign parents simultaneously. The court approved inter-state transfers of children under certain conditions, raised the cost limit for processing adoptions, and simplified requirements for foreigners living in India. They also addressed scrutiny agency fees, aimed to prevent misuse by unrecognized agencies, and emphasized the importance of maintaining confidentiality in adoption cases.
The court recommended the creation of a regulatory body, the Central Adoption Resource Agency (CARA). Throughout, the Apex Court focused on the rights of children and their welfare, recognizing that children are an extremely valuable national asset.
In re: Manuel Theodore D’souza vs. Unknown (1999)
In this case, a Christian couple sought to be appointed as guardians under the Guardians and Wards Act, 1890. Subsequently, they amended their prayer to be declared adopted parents. The dispute arose since the governing law at the time, which was the Hindu Adoption & Maintenance Act, 1956, only governed adoption by Hindu parents. Among the issues raised, the Bombay High Court considered questions such as whether an orphaned child has the right to a family, whether the right to be adopted is a fundamental right guaranteed to a child under Article 21 of the Constitution and whether the State can deny an orphaned child the right to be adopted because of its failure to enact a legislature.
The Bombay High Court in this case laid down that the right to life in the case of an abandoned orphan or destitute child includes the right to be taken in adoption. The court reasoned that the directions in the Lakshmi Kant Pandey case recognised the right to life guaranteed under Article 21 to the child, considering that the Apex Court could not have issued the directions without considering adoption to be a part of the right to life. The court goes further to recognise that the right to adopt parents flows from Article 14 of the Constitution.
Philips Alfred Malvin vs. Y.J.Gonsalvis & Ors. (1999)
This case concerned a property dispute wherein the plaintiff, who claimed to be the adopted son of the deceased, sued for partition of the property. However, the defendants argued against that the suit was not maintainable and that the plaintiff was not the adopted son of the deceased. Additionally, it was argued that Christian Law does not recognise adoption.
The Kerala High Court ruled that the adopted son is entitled to inherit the assets of the deceased as he gets all the rights of a biological child. Additionally, it was held that adoption is recognised according to Hindu, Mohammedan and Canon Law. The court also held that the right of the couple to adopt a son is constitutionally guaranteed under Article 21.
Judgement in Shabnam Hashmi vs. Union of India & Ors. (2014)
The Supreme Court did not recognise the right to adopt as a fundamental right. The court held that the conferment of the status of a fundamental right to the right to adopt was the task of the legislature and not the judiciary. However, the Supreme Court held that the Juvenile Justice Act is legislation that enables a prospective parent to adopt an eligible child after following the provisions prescribed under the Juvenile Justice (Care and Protection of Children) Rules, 2007 and the CARA (Central Adoption Resource Agency) Guidelines. The Act provides a great degree of flexibility to the parent in the sense that the person is free to adopt as under its provisions or follow the dictates of the applicable personal law.
The court additionally stated that the JJ Act, as an enabling statute, provides an optional legal pathway for adoption available to all, regardless of religion. While personal laws and beliefs must be respected, they cannot be used to invalidate or restrict the options provided by this secular law. This approach allows the JJ Act to function as intended while still respecting individual choice in following personal laws.
The court discussed the changes brought in by the Juvenile Justice Act, 2000, from the Juvenile Justice Act, 1986 (‘JJ Act 1986’). The JJ Act of 1986 dealt with only neglected and delinquent juveniles. Under the JJ Act 1986, the treatment for neglected juveniles was that they should be placed in the custody of a juvenile home or under the care of any person willing to ensure the good behaviour of the juvenile during the period fixed by the Juvenile Welfare Board. However, the JJ Act 2000 laid down specific provisions under Chapter IV dealing with ‘Rehabilitation and Social Reintegration’ for a child in need of care and protection. The act laid down several modes to achieve this, like adoption, foster care, sponsorship or sending the child to an aftercare organisation.
Rationale behind the judgement
The Hon’ble Apex Court analysed the decisions of the Bombay High Court in the Manuel Theodore D’Souza case and the Kerala High Court in the Philips Alfred Malvin case and held that the holdings in those cases were to be understood in light of the specific facts of those cases. The larger question of the fundamental rights was not raised in the Kerala High Court case, whereas, with respect to the Manuel Theodore D’souza case, the Supreme Court held that the right to adopt was held to be consistent with the personal law applicable to parties who were Christians.
In the present case, the court held that it was not appropriate to raise the right to adopt to the status of a fundamental right. The court also reiterated the need for judicial restraint, wherein the court should refrain from dealing with issues of constitutional interpretation unless this exercise is unavoidable.
According to the court, the JJ Act is a step in achieving the goal of securing a Uniform Civil Code under Article 44 of the Constitution. Furthermore, the court held that personal belief and faith cannot control the operation of an enabling statute. The court reasoned that since the JJ Act, 2000, is optional legislation and does not contain an imperative that is unavoidable, it cannot be overridden by principles of personal law.
Critical analysis of the case
In the Shabnam Hashmi case, the Apex Court had indeed provided adequate relief to the petitioner. However, there has been some criticism raised in the sense that it did not recognise the right to adopt as a fundamental right under Article 21 of the Constitution. Recognising this right would have facilitated better access to justice, especially considering that JJ Act, 2000 may not be accessible to individuals across the different communities.
The Global Muslim Women’s Shura Council in a 2011 report looked at the adoption process in Islam and recommended measures for reform. This report highlighted that Islamic sources don’t ban adoption but simply place ethical restrictions on it. This reform highlights compassion, transparency and justice. This reform is similar to the idea of open adoption where the biological ties of the child are not erased. Such a model wouldn’t be anti-Islamic and would prioritise the child’s best interests.
Therefore it is argued that the court could have considered these alternatives while expanding the interpretation of Article 21 in order to prioritise the best interests of the child. By exploring these alternatives, the court could have created a more inclusive and comprehensive framework for adoption in India.
Conclusion
The Shabnam Hashmi case is a landmark case because it recognised a way for Muslims to adopt children despite their personal laws prohibiting adoption. This decision is a step forward to achieve the Uniform Civil Code under Article 44, as envisioned by the framers of the Constitution.
India’s adoption system is complex, with laws like the Hindu Adoptions and Maintenance Act (HAMA), the Guardians and Wards Act (GAWA), and the JJ Act coexisting, which makes the legal arena regarding adoption confusing for a layman. These complexities, along with cultural and religious factors, complicate efforts to streamline the adoption process and ensure equal access for all.
This decision highlights the need to balance individual rights with societal norms in a rapidly changing and modern world. It also highlights the need for legal reforms, as many personal laws still contain orthodox values that clash with modern constitutional principles. The goal of the present case is to develop a system that respects cultural differences in a diverse nation that prioritises child welfare and ensures every child has a chance to grow up in a loving family.
Frequently Asked Questions (FAQs)
How is adoption different from guardianship?
Adoption is an irrevocable act that confers on the adopted child full rights equivalent to those of a natural child, including the right to inherit. However, under the GAWA, as soon as a child turns 21 years old, they would no longer remain as wards and have individual identities. They also do not have an automatic right of inheritance. The fundamental difference between the two concepts is that while adoption establishes a parent-child relationship, no such relationship is established under guardianship.
How is adoption under HAMA different from the JJ Act?
The Hindu Adoption and Maintenance Act (HAMA) is specific to Hindus, Jains, Buddhists, and Sikhs, while the Juvenile Justice (JJ) Act is secular legislation that allows people of all faiths to opt in. HAMA restricts parents from adopting a child of the same sex as their existing child, whereas the JJ Act has no such limitation and even permits the adoption of two children of the same sex.
Section 56(3) of the JJ Act, 2015, states that its provisions do not apply to adoptions under HAMA. However, Section 56(4) mandates that all intercountry adoptions must be conducted in accordance with the JJ Act.
How will UCC impact adoption in India?
The Uniform Civil Code would provide a uniform set of adoption laws for all Indian citizens. The rights of adopted children would be clear and more consistent, regardless of their religious affiliation.
The UCC would make sure that all children have the same opportunities to be adopted and at the same time all competent adults have the same rights to adopt. It would reduce discrimination against single people, same-sex couples and interfaith couples. Also, it would make it easier for prospective parents to adopt children from other religions.
What do Sections 42 – 44 of the JJ Act, 2000 lay down?
Section 42 lays down the provision for foster care. This refers to the temporary placement where children are placed with another family while waiting for adoption. This can be short-term or long-term care. According to the circumstance the birth parents may stay in touch through regular visits. Eventually after rehabilitation the children may return to their original homes. The state government sets the rules for foster care programs
Section 43 outlines sponsorship programs which support families, children’s homes, and special homes by covering medical, nutritional, and educational needs to improve children’s quality of life. The state government can create rules for different types of sponsorships, such as individual, group, and community.
Section 44 describes after-care organizations, which the state government can establish or recognize. The State government can make rules for establishing these organisation and defining their functions, create aftercare programs for helping juveniles to lead honest, productive lives after leaving special or children’s homes, and set standards and services for after care organisations. Additionally, the rules can also require probation officers or other appointed officers to prepare reports on the needs and plans for each juvenile or child before they leave the homes, and supervise and report on their progress.
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This article is written by Kabir Jaiswal and Syed Owais Khadri. This article provides insights into the norms or laws relating to public display of affection (PDA) in India. It explains the meaning and types of action that may fall within its ambit. It looks into the reasons which make PDA a highly controversial topic while discussing it with respect to the concept of obscenity. This article aims to determine whether PDA is an offence in India.
Table of Contents
Introduction
The Delhi metro has been the topic of discussion in several instances in recent times due to the virality of videos in which people are seen indulging in acts amounting to the public display of affection (hereinafter referred to as PDA). Several such instances of PDA have been heard of. In fact, a few years ago, a couple was beaten up in the Kolkata metro for hugging. It is quite tragic that PDA sometimes becomes a bigger topic of concern and outrage than the more pressing issues like women’s safety, etc.
Public display of affection refers to any physical act reflecting love or affection by one person towards another. It extends from simple hugging to kissing, but usually not beyond that. However, since the definition of PDA is subjective, the controversy regarding it is never-ending, as the extent or method of showing affection differs from person to person.
As long as the behaviour is simple and not obscene, it is not illegal and is unlikely to attract the attention of the police and lead to your arrest. However, if you were to engage in bolder behaviour, such as sexual intercourse in a public place, such as the local beach or park, your chances of being arrested are greatly increased. This article discusses several aspects relating to PDA, including its meaning, the concerned social norms, and the difference between being intimate and being obscene.
Meaning of PDA
Public display of affection or PDA is the commission of any act by an individual intending to or showcasing a feeling of love, affection or warmth towards another individual in an open space or in public. It basically refers to the physical actions expressing or showcasing affection or warmth committed publicly.
Forms of PDA that may be allowed
There is no exhaustive or inclusive list of actions that may qualify as PDA. However, it is also important to draw a certain boundary to demarcate the actions that would fall within the meaning of PDA, considering the cultural and societal norms in India.
The appropriate method based on which actions may be restricted to qualify as PDA, might be to stick to the term’s simple meaning. The appropriate limit might include simple actions that showcase affection, love, or warmth. Some of the actions or forms of PDA that may be allowed are as follows-
Holding hands in public.
Putting your arms around the other person.
A kiss on the forehead, cheek, head or hand.
Hugging in public.
Putting your arm around the waist.
Verbal expressions of love.
Actions that may not be allowed as PDA
Some actions might be well beyond the simple meaning of PDA and may turn obscene. Certain intimate acts, which can qualify as being obscene, are generally inappropriate in public spaces and may not be allowed.
Some of the actions or forms of PDA that may not be allowed are as follows-
Compassionately kissing your partner in a public place.
Touching your partner’s genitals in a public place.
Sexual intercourse in a public place.
PDA – a controversial issue
Conservatism in Indian society
It is an undisputed fact that Indian society is largely conservative. Although Indian society is extremely diverse, one common factor that is noticed everywhere and in every part of the society is conservatism. This conservativeness is relaxed to a certain extent in some areas, particularly metropolitan cities. However, the mentality of the majority of Indians, still lacks the simple eagerness to accept that the world is changing and that people are changing too. Holding hands, hugging, wrapping arms around the shoulder, etc., turn many heads. Such minor affectionate gestures are also often considered a big issue in India.
Idea of social morality
As an Indian, it is necessary to understand that cultural and social values are of great importance. Complaints of immoral activities and general moral deterioration have been noticed through all periods of time. However, this should not reach the extent of using force to impose one’s opinion and standard of morality on others.
PDA is considered to be a violation of social morals. We live in a country where people are unfazed by urination in public, but a simple hug or act of affection between two individuals of the opposite gender is considered immoral and indecent. People remain quiet when a crime or any unlawful act is committed, but show efforts to stop simple acts of PDA, claiming it to be immoral and harmful to the culture and morality of society. People who do not raise their voices against the commonly witnessed molestation of women in public transport, aim to bring about a change in society by opposing hugging and other simple gestures amounting to PDA. Evidently, there is no clear standard of social morality.
The Supreme Court‘s observations in the case of Khushboo vs. Kanniammal (2010) were- “The concepts of social morality are inherently subjective and criminal law cannot be used to interfere unduly with the domain of personal autonomy.” Public display of affection is therefore still highly debatable, because of the concept of social morality, which not have a strict definition of standards.
Doctrine of public decency
Part of the problem lies in the rapid change in concepts of public decency and morality in our society. Several Supreme Court judgements have repeatedly highlighted this. The Hon’ble Supreme Court in Chandrakant‘s Kalyandas Kakodkar vs. State of Maharashtra (1969) noted that “the standards of contemporary society in India… change quickly”.
The central administrative tribunal made a similar point. It pointed out that the lower courts must be sensitive to changing views and concepts of decency and morality while dealing with cases under Section 294 (obscene acts and songs) of the Indian Penal Code, 1860 (IPC) and their impact on society.
PDA as an offence
Although PDA itself is nowhere expressly defined or criminalised in any of the penal legislations, it is often treated as a criminal offence within the scope of the offence of obscenity, due to the lack of clarity on the offence or the vague nature of the provision under Section 294 of the Indian Penal Code, 1860.
Section 294, under clause (a), penalises the public commission of any obscene act. It provides that any person who commits any obscene act in a public place to the annoyance of others is punishable with imprisonment for a term of three months, a fine, or both.
The main ambiguity of the provision is the absence of a definition of ‘obscene act’. The provision does not define the term “obscene”, which enables the inclusion of every act that annoys an individual, within the scope of the provision.
As a result, PDA, irrespective of the kind and nature of the act that is committed, can be a criminal offence under the provision mentioned above. It is usually not differentiated whether the act committed was a simple gesture such as holding hands and hugging or something beyond that.
Therefore, PDA is punished under Section 294 of the IPC on the ground that the persons indulging in PDA cause annoyance to others by committing an obscene act in a public place.
(According to the new legislation which has replaced the existing laws, Section 294 of the Indian Penal Code, 1860, corresponds to Section 296 of the Bharatiya Nyay Sanhita, 2023)
Offence against morality
While the criminality of PDA is debatable, depending upon the nature of the act committed, the commission of any form of PDA, irrespective of the nature of the act, is usually considered an offence against morality. Although one may not be imposed with penal provisions, particularly under Section 294 of the IPC/Section 296 of BNS, for indulging in a simple act of PDA, such as hugging, there are extremely high chances of moral policing. In fact, in the majority of cases, penal provisions are invoked against individuals involved in PDA, due to the pressure from society on the police.
In many cases, people may go to the extent of physically assaulting individuals in the name of moral policing, even if the act committed is extremely simple, such as hugging. As a matter of fact, certain moral policing groups go out searching for couples in parks and other public places on Valentine’s Day and start abusing and harassing the couples, even if they are merely sitting with each other and not committing any act of PDA. Unfortunately, people seem to be more concerned about a simple act of PDA than actual crimes such as molestation.
PDA – intimacy and obscenity
PDA includes various acts that may qualify as intimate and sometimes even as obscene. It also includes acts that may neither fall under intimacy nor obscenity. There is a very slight difference or a thin line between the two terms- intimacy and obscenity. Certain acts of intimacy may qualify as obscene acts. Hence, it is extremely necessary to have clarity regarding the meaning of these terms, since the meaning and nature are the factors that determine if a particular act of PDA can be considered a criminal offence or not.
Intimacy
Intimacy refers to a feeling of closeness or warmth between two individuals. It extends from holding hands to engaging in sexual activity.
Merriam-Webster defines intimacy as “a state of being intimate or something of a personal or private nature.”
Cambridge Dictionary defines intimacy as “a situation in which you have a close friendship or sexual relationship with someone”
Collins Dictionary defines intimacy as “Intimacy between two people is a very close personal relationship between them.” Furthermore, it states that the term may also be used to refer to a sexual relationship.
The term intimacy or intimate therefore implies two meanings or rather one meaning with a difference in nature or extent.
The first one refers to a feeling of mere closeness or warmth without any sort of sexual activity. It may include activities such as holding hands, staring at each other with a feeling of love, hugging, a simple kiss, etc. (Kissing is also controversial. In this context, it refers to an act that is within a certain limit and does not appear to be sexual in nature.)
The second one, as mentioned in the definitions, refers to sexual acts or relationships. This type of intimacy may fall under the category of obscene acts.
Therefore, it is necessary to understand that while the commission of the first category of intimate acts may be permissible in public spaces, indulging in the second category of intimate acts might not be appropriate.
Obscenity
Obscenity refers to the nature of offensive acts or acts that are against morality or virtues. It generally includes acts that fall under the second category of intimacy, as discussed above. It usually refers to the ones that involve sexual activity.
Merriam-Webster defines obscenity as “the quality or state of being obscene, that is, disgusting to the senses or abhorrent to morality or virtue.”
Cambridge Dictionary defines obscenity as “the fact that something is obscene, that is, offensive, rude, or shocking, usually because of being too obviously related to sex or showing sex.”
Collins Dictionary defines obscenity as “behaviour, art, or language that is sexual and offends or shocks people.”
Acts involving any kind of sexual relationship or acts that are sexual in nature are generally referred to as obscene acts. Accordingly, all acts of PDA cannot be said to be obscene and must not be treated as such without proper determination of their nature.
Therefore, it is not appropriate to regard every act of PDA as obscene, nor is it appropriate to consider such acts punishable under the provision of obscenity. It is necessary to first determine if any committed act, especially those as simple as hugging or kissing, as mentioned under the first category of intimacy, is obscene.
Determination of obscenity
Obscenity is a subjective term, the meaning and interpretation of which differ from person to person. What might seem obscene to one individual might not be obscene to another individual. Some people might consider even a simple kiss an obscene act, while others may consider it a mere act or gesture of love. Hence, the meaning of the term is unclear and indefinite. Moreover, the understanding or interpretation of terms has a strong tendency to change with evolving times.
This intricacy in understanding the meaning or definition of obscenity is further complicated by the ambiguous nature of the provisions dealing with obscenity. The lack of a proper definition or fixed standards for the determination of obscenity, at least for legal purposes, has made the issue of obscenity complex and unclear.
Section 292 (sale, etc., of obscene books, etc.) and Section 294 of the Indian Penal Code, 1860 (corresponding to Section 294 and Section 296 of the Bharatiya Nyay Sanhita, 2023) which penalise the offence of obscenity, merely mention the term “obscene”, but do not define it. This lack of a set standard or definition of the term complicates the understanding of what is obscene and what is not.
Therefore, to ease or simplify the process of determining obscenity for legal or penal purposes, certain tests have been adopted in various judicial decisions by courts across the world. Some of the significant tests include the Hicklin Test, the Roth Test, the Likely Audience Test, the Community Standards test, etc.
Hicklin Test (United Kingdom)
The Hicklin test is the first test adopted in this regard, for the determination of the obscenity or obscene nature of any act. The Hicklin test refers to the guidelines set forth by the judiciary while dealing with an issue of obscenity in the case of R vs. Hicklin (1868) in England.
The said case involved the issue of statutory interpretation of the term obscene provided in the Obscene Publications Act, 1857. In this case, an individual was charged with the offence of obscenity for selling a publication called ‘The Confessional Unmasked’ that was alleged to have obscene material.
The Queen’s Bench of England delivered a landmark ruling in this case by laying down a test for determining if any material was obscene in nature. The Court held any material that has a tendency to morally deprave or corrupt the minds of the individuals who may be exposed to such material or in whose hands such material may come to be obscene.
The Hicklin test propounded by the Court consisted of six essential elements, which are as follows.
Tendency to corrupt minds morally
Tendency to be decided from the perspective of a reasonable person. (Reasonable persons include young children and older individuals as well, which indirectly determines the tendency of the perspective of any individual/person.)
The intent or motive of the author or publisher is irrelevant.
The nature of the work as a whole is irrelevant.
Irrelevance of other contemporary works.
Accessibility of the material.
This test was widely criticised and rejected due to the consideration of every individual in society, irrespective of age, any other factors or even the other contemporary works that would have reflected the views of the society. The test imposed a major restraint on freedom of speech since every material would corrupt one or another individual, especially children who lack the ability to judge and differentiate between such material.
Roth Test (United States)
The Roth Test was propounded by the Supreme Court of the United States in the case of Roth vs. United States of America (1957). The United States Supreme Court was dealing with a challenge to the restrictions on obscenity and the sale of obscene materials imposed by the State of California on the grounds that the restrictions infringed upon the freedom of speech guaranteed by the First Amendment of the American Constitution.
The Court in this case held that any work would be regarded as obscene, if the main concept of such work, when taken as a whole, appeals to the lustful interest of an average person and the consideration or examination of the work must be done by applying contemporary community standards.
Therefore, the four essential elements of the Roth test can be noted as follows.
Determined from the perspective of an average person.
The main theme of the work must be taken as a whole.
Appeals to the lustful interest of an average person.
Must be examined based on the application of contemporary community standards.
Millers Test (United States)
The Miller Test was a modified and upgraded form of the Roth Test. It is also known as the Contemporary Community Standards Test. This test was propounded by the Supreme Court of the United States of America in the case of Marvin Miller vs. State of California (1973).
The Court in this case suggested a threefold test to determine if any work or material was obscene or not. The said test consisted of the following elements.
If the work, when taken as a whole, by applying community standards, appeals to the lustful interest of an average person.
If the work depicts any form of sexual conduct defined by the applicable state law, in an offensive way
If the work lacks any artistic, scientific or literary value.
The addition made in this case/test was the exception of literary, artistic or scientific works, which was a significant move towards the protection of freedom of speech.
Likely Audience Test (India)
This test is also known as the probable reader’s test. This test was propounded by the Supreme Court of India in two of its landmark decisions relating to obscenity.
The Court in the case of Samaresh Bose vs. Amal Mitra (1985) diverted its stance from the adoption of the Hicklin Test, which determined obscenity from a reasonable person’s perspective (irrespective of whom the work was made for), to only the audience the work was intended for. This test restricted the size of the audience that was taken into consideration while determining if any work or material was obscene. The Court was of the view that a judge dealing with a case relating to obscenity, must try to view the work from an author’s perspective to understand what the author intends to convey and to whom, as well as if it has any artistic or literary value. Similarly, the judge must also try to understand the work from the perspective of readers of all age groups, who are expected to read it. Further, the Court also stated that there was a clear distinction between obscenity and vulgarity and both need not necessarily be confused.
In Chandrakant Kalyandas Kakodar vs. State of Maharashtra (1969) as well, the Supreme Court observed that the test of obscenity must be examined from the perspective of the intended audience and not any audience in the hands of whom such work might fall.
Landmark case laws on “obscenity”
Ranjit D. Udeshi vs. State of Maharashtra (1964)
The case of Ranjit D. Udeshi vs. State of Maharashtra (1964) is one of the earliest cases relating to obscenity in India. The Hon’ble Supreme Court in this case, was dealing with a challenge to the prosecution of the accused, under the offence of sale of obscene books or material as per Section 292 of the Indian Penal Code, 1860 for possessing and selling the novel ‘Lady Chatterley’s Lover’. The book was considered to contain obscene material or content.
The Court decided this case by applying a modified version of the Hicklin test. Justice Hidayatullah gave three main modifications to the Hicklin test, including the addition of a defence to obscenity. The three modifications to the Hicklin test were as follows.
The work must be examined as a whole. The obscene part of the work must be compared with the non-obscene part of the work. It should be determined whether the non-obscene share of the work has a greater influence to overshadow the obscene part or whether the obscene part is so little and insignificant that it would be ignored.
The mere presence of nudity or sex in art or literature cannot be considered obscenity in the absence of something more to it.
Any work, material or publication can be exempted from the scope of obscenity if such work or publication was for the public good.
The comments from the Supreme Court in this regard are of utmost importance. The Court had observed that the obscenity test must be examined by considering the freedom of expression and speech guaranteed by the Constitution. It also observed that the Court must decide on this issue while carefully ensuring that there is no great deviation from the guaranteed freedom, as it involves a constitutional issue of the most far-reaching nature.
Aveek Sarkar vs. State of West Bengal (2014)
The case of Aveek Sarkar vs. State of West Bengal (2014) is one of the most recent and significant cases relating to obscenity in India. The Court in this case rejected the Hicklin Test and adopted the Community Standard Test for the determination of obscenity.
In this case, the Court was dealing with a challenge to a complaint filed against a newspaper and magazine under Section 292 of the IPC, for printing and publishing a semi-nude picture of Boris Becker and his fiancee.
The Hon’ble Supreme Court, by adopting the Community Standard Test, ruled that the picture did not amount to obscenity/obscene material, as the intention of the picture was to portray a message of racial equality and non-discrimination on the basis of race.
The Court observed that the picture was not intended to and did not excite any kind of sexual passion. It did not corrupt the minds of individuals in whose hands it might have fallen. It observed that contemporary standards and ways of life must be taken into consideration while deciding the issue of obscenity, not the standards of a sensitive person. A nude/semi-nude picture cannot be considered obscene if it lacks a tendency to arouse sexual desire.
Ajay Goswami vs. Union of India (2006)
The Court in this case of Ajay Goswami vs. Union of India (2006) was dealing with a writ petition filed seeking directions to the government to take measures to ensure the protection of children from sexually explicit material which has an exploitative tendency, irrespective of whether it is obscene and prohibited by law or not. The petitioner primarily sought the issuance of guidelines to newspapers and other similar publications concerning sexually exploitative material and a disclaimer on the first page of such newspaper or publication if it contains sexually exploitative material. It also sought the appointment of an expert committee to suggest measures in this regard.
The Court dismissed the petition on the grounds of failure to establish the rationale, necessity and requirement of curtailment of the freedom of speech and expression under Article 19 of the Constitution and also cited the existing measures and legal provisions in this regard.
The Court in this case observed that in cases involving works with questions of both art and obscenity, the decision must be taken after measuring or examining the artistic, literary or social merit of such works against obscenity. It was observed that a work must be seen from the perspective of a common man and not from the perspective of a hyper-sensitive individual and the bars must not be set according to such an individual’s perspective. It was observed that no work must be seen in isolation without any consideration of the entire context of the work. It was further observed that any publication or work must be examined as a whole. The Court observed that the fictitious imagination of any person, particularly minors, must not be bothered in a court of law.
Cases/ instances that led to a debate on PDA
Since the law does not give explicit definitions of “obscene acts,” police and courts are blatantly misused to harass couples. What is obscene and what is not must be clarified and defined urgently. India is a conservative country, and any new developments are bound to shake our systems.
It is a well-known fact that PDA in India is generally unacceptable. It is comprehensible that rural areas, where cultural and societal norms are rigid and are followed in the same manner, reject the simple practices of PDA. However, the case is not much better when it comes to urban cities. Even in metropolitan cities with a comparatively higher population and liberal norms, the practices of PDA are not easily acceptable. There are often cases or instances involving simple acts of PDA that turn into controversies. The following are some of the popular controversies or instances of PDA.
A and B vs. State through N.C.T of Delhi and Anr (2009)
The Hon’ble High Court of Delhi in A and B vs. State through N.C.T. of Delhi and Anr (2009) dealt with a petition filed for quashing of an FIR. The petition was filed by a couple against whom an FIR was registered under Section 294 of the Indian Penal Code, 1860.
Facts of the case
Although there were two versions of facts that were presented before the Court, one by the petitioners and the other by the police, the main essence of the facts was as follows-
The petitioners were a couple who married recently and were present near the Dwarka Court Complex to complete the paperwork relating to the marriage registration process.
The petitioners were asked to wait by their lawyer, due to which they were waiting near the Delhi Metro pillar outside the court complex. While they were doing so, they decided to click pictures of each other, which were presented before the Court. In the meantime, they were approached by the police, who accused them of kissing in public, which was a punishable offence under Section 294 of the IPC. The police then arrested the couple, following which they paid a sum of around Rs. 20,000 to the police to be released from jail. The petitioners also alleged that no protocols were followed by the police while arresting the woman and that they were manhandled by the police.
However, in the other version of the facts, the police stated that the Sub-Inspector, along with a constable were present near the Dwarka Court Complex when they saw the couple sitting in an objectionable position and kissing each other in public near the metro pillar. The police stated that the said act of the petitioners was causing inconvenience to onlookers and passersby. The police then arrested the couple. Accordingly, they registered an FIR against the couple for the commission of an offence under Section 294, read with Section 34 (acts done by several persons in furtherance of common intention) of the IPC, for causing annoyance to others by committing an obscene act.
The petitioners, in light of the events mentioned above, filed a petition before the Hon’ble High Court of Delhi for quashing of the FIR registered against them.
Issues raised
Whether a simple act of kissing, in the manner specified in the FIR, would attract the offence of obscenity under Section 294 of the Indian Penal Code, 1860?
Judgement
The Court in this case, noted that not even a single name of the passersby who were said to be annoyed and inconvenienced by the act of the petitioners, was mentioned in the FIR. The entire basis of an offence under Section 294 and the FIR, was causing annoyance to others by way of an obscene act. It was also noted that no statement from any such passersby was recorded.
Accordingly, the Court ordered the Commissioner of Police to examine the matter. The Commissioner, on examination, found several irregularities in the proceedings of the police and also found the statements made by them to be false. He then ordered a disciplinary enquiry against the police officers and also stated that there was no objection to quashing the FIR. Therefore, the Hon’ble High Court of Delhi quashed the FIR against the petitioners.
The most important and relevant aspect of this case was an observation made by the Hon’ble Delhi High Court. It observed that even if the FIR and the contents of it were to be considered legitimate at their face value, it does not establish an offence under Section 294, read with Section 34 of the IPC. The Court observed that even if the contents of the FIR were true, it was incomprehensible to the Court as to how the expression of love by a young married couple in the manner provided in the FIR, would qualify as an offence of obscenity.
Therefore, it may be inferred from this ruling that a simple act of kissing would not attract the offence of obscenity under Section 294 of the IPC.
Sebastian. T. Joseph and Others vs. Kerala State Commission for Protection of Child and Others. (2017)
The Hon’ble High Court of Kerala in Sebastian. T. Joseph and Others vs. Kerala State Commission for Protection of Child and Others. (2017) was dealing with a writ petition filed by the principal of the St. Thomas School in Thiruvananthapuram in Kerala. The petitioner sought to quash the order passed by the Kerala State Commission for the Protection of Child Rights. The order directed the school to allow a child (the second respondent in this case), who was suspended from the school, to attend classes.
Facts of the case
The second respondent was a minor child of Class XII, who was represented by his father. The child was admitted to the school in the academic year 2016-2017, to class XI.
A complaint was made by a teacher against the minor child, alleging that he hugged a girl in front of the teachers and other students during the school arts festival.
The minor child defended the hug, stating that it was merely a congratulatory hug towards the girl student, who was also his friend. The child stated that there was no evil intention or any other reason for the hug. It was merely because he was impressed by the girl’s recital of a song at the arts festival and gave the hug out of humility and respect, as a compliment.
Despite defending the incident, the child and the girl student had been further stated to have apologised to the vice principal for the said incident with an assurance that such a thing would not be repeated.
However, both students were asked not to attend classes from the next day, and both of them were obliged to this instruction.
The students were later allowed to attend the classes after the Onam examinations. However, disciplinary actions were initiated against both students.
Meanwhile, the parents of both students were again summoned by the school authorities. This time, the school showed some pictures of both the students that were posted by the child on social media. These pictures were alleged to be of an obscene nature and they were said to be in a compromising position in those pictures.
As a result, the petitioner suspended both students from the school as a part of disciplinary action and it was later decided that they must be expelled from the school, stating that the incidents were affecting the morale of the other students as well as the reputation of the school.
In the meantime, the Kerala State Commission for the Protection of Child Rights (first respondent) issued an interim order directing the school to allow the students to attend school.
The petitioner approached the Hon’ble High Court of Kerala through this writ petition, seeking to quash the interim order issued by the first respondent.
Issues raised
Whether the first respondent had the power to issue the impugned interim order directing the petitioners to allow the students to attend school.
Judgement
The Hon’ble High Court of Kerala ruled that the school was not at fault for taking disciplinary action against the child and there was no illegality or unfair conduct by the school, as the action was taken as a consequence of an unfortunate incident that had a tendency to affect the morale and discipline of the other students. However, the Court also observed that the school must also look to adopt a balanced approach in such instances, considering the future of students, especially when the child against whom action is taken is a student of class XII with board exams approaching in the near future.
The Court in this case observed that the first respondent was empowered to conduct inquiries in matters relating to the subjects or issues mentioned under the Convention on the Rights of the Child. It was observed that such powers do not include instances such as the present one, where the matter is concerning the maintenance of discipline in the school. It was further observed that the position of the principal of the school is that of a guardian. He is empowered to take necessary action to ensure the maintenance of discipline and morality in the school and such power cannot be interfered with by the first respondent.
The Court ultimately ruled that the first respondent did not have the power to issue an interim order directing the school to allow the child to attend classes. It quashed the interim order issued by the first respondent, stating that the order was arbitrary and illegal and hence had zero legal validity.
PDA between Richard Gere and Shilpa Shetty
This is an extremely popular incident that occurred around 17 years ago, but the verdict for the same was passed in 2023, by the Mumbai Sessions Court. A case of obscenity was filed against Shilpa Shetty on the grounds that she committed an obscene act by not resisting a kiss on the cheek by a fellow Hollywood celebrity.
Facts of the case
Shilpa Shetty was present at a public event at Sanjay Gandhi Transport Nagar in Delhi, in April 2007. She was accompanied by a popular Hollywood celebrity, Richard Gere and the said event was organised to create awareness regarding AIDS.
It was reported that Richard Gere hugged and kissed Shilpa Shetty on her cheeks, at the event, in order to spread awareness that such acts were safe and the transmission of HIV does not take place through hugging and kissing.
However, this act of Richard Gere was heavily criticised in the country. The criticism was also directed towards Shlipa Shetty for not resisting the act.
Furthermore, a complaint was filed before a Judicial Magistrate Court in Rajasthan, for registration of an FIR against both the actors for kissing in a public place.
The actress had filed for her discharge from the offences in 2017. She contended that the allegation against her that she did not resist the kiss, would in no scenario make her a co-conspirator or an accused in the crime and that she would not be liable for the commission of the offence of obscenity, since the act was not committed by her, but was committed against her.
A Magistrate Court in Mumbai, in this regard, had upheld the contention of the actress and discharged her from the crime in January 2022. The Court had observed that the charges against her were baseless and that she was a victim of the alleged acts committed by the other accused, that is, Richard Gere.
The aforementioned order of the Magistrate Court was challenged by the Rajasthan Police and the Mumbai MRA Marg Police, by filing a criminal revision petition before a Sessions Court in Mumbai.
Issues raised
Whether the actress had committed an offence of obscenity under Section 294 of the Indian Penal Code, 1860 by not resisting a kiss from a fellow celebrity at a public event?
Judgement
The Mumbai Sessions Court in April 2023, dismissed the appeal filed by the Rajasthan and Mumbai Police and upheld the order passed by the Magistrate Court, discharging the actress from the alleged crime, stating that the obscenity was not evident on the part of the actress and there was also no evidence of annoyance by the complaint.
The Court observed that a woman cannot be said to be participative or a co-accused if she was groped or touched in a public place or on public transport. It ruled that such a woman cannot be held for illegal omission and it would not make her liable for prosecution.
Hugging in the Kolkata Metro
In a popular and disturbing case of moral policing, a couple was beaten up by some old and middle-aged people in the Kolkata Metro, in 2018. The only act they committed was that they hugged each other, which reportedly disturbed an old man around them. This sparked a debate between the couple and the old man. The couple tried to convince them that they weren’t actually hugging, but the boy was instead covering the girl to protect her from being groped. However, the old man refused to listen to him and continued to argue. The old man argued that the couple was polluting the atmosphere and that they must visit a bar instead of hugging in the metro. When the boy confronted the old man for his arguments, he was supported by the other old and middle-aged passengers. All of them warned the couple of serious consequences for the argument.
Furthermore, when the station arrived, around 5-6 old and middle-aged men pulled the couple out of the metro and started physically assaulting the boy. The frustrated men beat and physically assaulted the girl as well when she tried to save the boy from them. They were finally rescued after the intervention of the youth and women passengers nearby. However, no action was taken against those men since no police complaint was filed by the couple.
This incident sparked a debate on PDA and moral policing. A large number of people protested against the incident and moral policing in general. The youth protested by hugging each other in various metro stations across Kolkata.
Although the argument given by the boy might or might not be true in that particular instance, it was a valid reason since it is a well-known unfortunate fact that women face harassment and groping on an everyday basis while using public transport. Even otherwise, if the argument given by the boy wasn’t true and the couple hugged intentionally and not because of what they were saying, the group of old men had no right to assault the couple. Instead, the old men committed the offence of outraging the modesty of the woman by physically assaulting her.
This particular incident highlights the extent to which simple acts of PDA are considered obscene and are often used as a ground to harass a couple, mostly by moral policing like in the above instance or sometimes by criminal cases.
Kozhikode cafe attack
In October 2014, around 20 members of a certain group broke into a popular cafe in Kozhikode, in Kerala and vandalised the windows, chairs, and the entire cafe in general, claiming that the cafe was providing space for immoral activities, particularly, holding hands, hugging and kissing.
A campaign was initiated against a cafe named DownTown, after a certain news channel ran an alleged investigative report claiming that the cafe was allowing youngsters to carry out various immoral activities, particularly holding hands, hugging and kissing. Drugs were also claimed to be distributed. However, the channel did not produce any evidence supporting their claims concerning the distribution of drugs. The only evidence that was presented by the channel was a video in which a couple was kissing. It also claimed that the cafe was luring youngsters by providing free wifi.
This led to a protest against the cafe and it was vandalised by a group of 20 young people who broke into the cafe on an afternoon in October. The protestors claimed that they had complained about such activities to the police and they were forced to act the way they did, since the police did not take any action. The protestors claimed that they had no problem with such activities being carried out in private, but they would not allow such activities in public places, as they were immoral.
This incident of moral policing was condemned and opposed by youths across the country. Demonstrations called ‘kiss of love’ protests took place across urban cities in India, such as Kochi and New Delhi. Several young people gathered at the demonstrations to openly hug, kiss and show affection by way of simple acts, to challenge moral policing.
Attack on Swiss tourists
This instance of moral policing led to an unfortunate incident, which had the effect of harming India’s reputation across the world. A Swiss couple was attacked and morally policed by a group of boys near Fatehpur Sikri.
The Swiss couple was in Fatehpur Sikri as a part of their tour when they saw a group of boys approaching them near Tehara Gate, which ended up with the couple being physically assaulted and badly injured.
The group of boys, which consisted of 3 minors and 2 adults, said that they saw the friendly couple from a distance when they were making some inquiries about Fatehpur Sikri. One of the boys stated that, sometime later, they saw the couple being intimate. He said that one of them suddenly assaulted the couple, following which all the members of the group joined him. They initially began assaulting the man, but the woman also got injured when she tried to save him. They admitted that they assaulted the couple with stones and sticks. The victims, however, rejected the claims that they were being intimate. They instead said that the boys were forcing the couple to take selfies with them and then them when the couple resisted.
The police arrested all the accused in this case on charges of voluntarily causing hurt and under other relevant provisions of the Indian Penal Code, 1860. The boys later regretted the crime and wished to apologise to the couple. This incident highlights the risks of PDA in India.
Moral policing in a museum in Kerala
This particular incident highlights the misuse of power and unnecessary moral policing by the police against the couples on the grounds of indulging in PDA, irrespective of whether they had committed it or not.
This incident took place in February 2017, when a couple was sitting in the park of a museum in Thiruvananthapuram, Kerala, when they were morally policed by two female police officers for sitting together.
The man had reportedly kept his hand on the shoulders of the woman when the two police officers approached them and asked them if they were married. The police began morally policing the couple when they said they were not married. They told them that such behaviour in public was vulgar.
The man then started a live video on social media to record the entire incident. He protested and tried to call out the unnecessary and invalid remarks of the police officers by questioning how their behaviour was vulgar when all they did was sit together with his hands around the woman’s shoulder. He repeatedly asked the police officers if they saw them kissing or indulging in any other act that could be termed vulgar, to which the police officers replied with silence.
One of the police officers was heard telling the couple that they would inform their parents and then decide what needed to be done, including whether to get the couple married off or not. The police officer was heard saying, “All of this is not permitted here”.
This was followed by the arrest of the couple by the police officers, who were then joined by two other male police officers. It was also reported that one of the male police officers abused the couple, particularly the woman. The police stated that the couple resisted providing their identities and hence, they were arrested for the offence of creating a public nuisance under Section 290 (punishment for public nuisance in cases not otherwise provided for) of the Indian Penal Code, 1860.
After this incident, the Kerala State Police Chief apologised for such an act by the police and informed that an inquiry was initiated against the concerned officers. The State Police Chief reiterated that the police were a law enforcement agency and not a moral keeper of the society. He stated, “The law of the land is very clear. No one has the right to disturb or harass any couple anywhere, more so in public places. In our country, we impose self-restraint on public display of affection (PDA), due to our culture and tradition, though there is no legal ban on it.”
All of the incidents discussed above highlight the social and cultural norms of Indian society, which are mostly against PDA. Although simple acts of PDA are not illegal in India, one might definitely encounter moral policing, either by the general public or by the police. Simultaneously, in valid cases of PDA and instances where a couple is actually indulging in PDA, it has to be kept in mind that simple acts such as holding hands, hugging, etc. might be permissible, but one must not go beyond such simple acts and a certain limit in public places considering the social and cultural norms of society, as getting too intimate can turn obscene and one might land into legal trouble.
Other legal provisions/PDA regulations in India
Apart from the provision of obscenity under the Indian Penal Code, 1860, several other regulations are available across India, depending upon the State legislation. Some of the provisions concerning PDA in a few cities of India are as follows-
Mumbai: Under Section 110 of the Bombay Police Act, 1951, charges may be filed against a couple if they are found to be intimate in public places.
Delhi: A couple might be charged with a fine of Rs.50 if caught getting intimate or cozy in public places. However, it is rarely executed.
PDA regulations across the world
PDA is a sensitive and controversial topic, not merely in India, but in several other parts of the world as well. Irrespective of your personal views on the subject, one must surely keep these in mind for their own security. Some examples are as follows-
Japan: Public display of affection is not very prevalent in Japan. People usually bow to each other.
Indonesia: It is largely a Muslim-populated country, strictly following Islamic traditions. Kissing in public places or any such sort of public display of affection is considered taboo.
Middle East: Most of the Middle Eastern countries do not allow any kind of public display of affection. The penalties for any such acts can be severe.
Conclusion
Public display of affection ranges from a mild handshake to compassionate kissing. However, the essential element of public annoyance must be established in order to bring an act within the scope of an obscene act punishable under Section 294 of the IPC. It is equally important to note that the boundaries or extent to which PDA can be performed, must also be kept in mind, given the cultural and societal norms of the concerned place. This is because the norms of society differ depending on the place. Moreover, the extent of PDA is subjective at an individual level as well. What might seem acceptable to one person, may not be appropriate to another. However, the consideration of boundaries doesn’t mean that even simple acts of PDA are inappropriate.
To conclude, PDA. as such, is not illegal in India. However, caution must be exercised with respect to the extent of such an action.
Frequently Asked Questions (FAQs)
Is PDA a criminal offence in India?
While PDA is not anywhere declared to be a criminal offence in India, it is often considered and treated as one under the umbrella of obscenity. It depends on the extent of the action. However, even simple actions of PDA may often be considered obscene, given the societal norms and the lack of clarity on the nature of the provision dealing with obscenity under Indian criminal law.
Which legal provision is PDA punishable under?
PDA is often treated as an offence under the scope of obscenity, which is criminalised under Section 294 of the Indian Penal Code, 1860. Under this provision, PDA would be punishable with imprisonment, which may extend to 3 months, a fine or both.
(Note: Under the new legislation, Section 294 of the Indian Penal Code is replaced by Section 296 of Bharatiya Nyay Sanhita, 2023)
Can a person be arrested for PDA?
Although there is no provision criminalising PDA as such, a person can be arrested by the police for the commission of any obscene act under Section 294 of IPC, 1860/296 of BNS, 2023 since it is a cognizable offence.
What changes are made to the provision relating to obscenity under the Bharatiya Nyay Sanhita, 2023?
The Bharatiya Nyay Sanhita, 2023 which has replaced the Indian Penal Code of 1860 has expressly provided a limit on the fine that may be imposed on the commission of an offence under Section 296 of BNS, 2023. The limit on the fine that may be imposed was not provided under Section 294 of IPC, 1860.
Section 296 of BNS, 2023 prescribes a limit of rupees one thousand (Rs. 1000).
Which was the first test propounded for the determination of obscenity?
The guidelines laid down in the case of R vs. Hicklin(1868) were adopted as a test for the determination of obscenity and it came to be popularly known as the Hicklin Test.
Which is the first landmark case relating to obscenity in India?
The case of Ranjit D. Udeshi vs. the State of Maharashtra (1964) is the first landmark judgement rendered by the Indian judiciary relating to the issue of obscenity. This case led to a modified version of the Hicklin test.
Which test is currently adopted in India for the determination of obscenity?
The Community Standards Test, which was adopted in the case of Aveek Sarkar vs. State of West Bengal (2014) is the test currently adopted in India for the determination of obscenity.
Under what provisions can the obscene materials be searched or seized?
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This article is written by Ritik Verma, pursuing a B.A.LL.B. from R.S. Banaras Law College, Varanasi. This article discussed the scope of divorce under Muslim law, especially regarding the conditions of Muslim wives before and after the passing of the Dissolution of the Muslim Marriage Act, 1939.
Table of Contents
Introduction
Muslim women generally faced difficulties regarding matrimonial relations; they had severely fewer grounds to get a divorce from their spouse. This act was especially passed to improve Muslim women’s conditions regarding seeking divorce as a matrimonial relief. This act empowered Muslim women to have additional grounds on which they could file a petition in any court and obtain a decree of divorce from their husband.
The Act consolidates and clarifies the provisions of Muslim women relating to suits for the dissolution of marriage by a married wife under Muslim law and removes doubts about the effect of the renunciation of the Muslim faith in Islam by a married Muslim woman on her status of marriage.
State of divorce under Muslim personal law
Pre-Islamic era
Before 610 A.D., the community living on the Arabian Peninsula was greatly unorganised. Men were neither bound to marry women and have children nor to protect the mothers of their children; the situation was not more than just prostitution. A man could marry any girl even without her consent and arbitrarily end the marital status without any concern for the wife.
Divorce among ancient Arabs occurred frequently and easily. This tendency could also revoke their divorce, remarry the wife and divorce her again as many times as they desire without any restrictions. Husbands could, at their presumption, accuse their wives of charges of adultery and leave her to suffer punishment given by the Islamic community for adultery. On the other hand, men were exempted from the responsibility of protecting their wives and maintaining them along with their children.
Post-Islamic era
“According to the Quran,”
The Quran permits divorce in some instances due to some customary obligations and partly to authorise men to get rid of the unpleasant tie of marriage.
The Quran verse states, “If both fear a breach between them (the husband and the wife), appoint an authorised, eligible person, one from the husband’s side and one from the wife’s side. If they desire to change the status of marriage, Allah will make them of one mind.”
The Holy Quran, the paramount source of Islamic jurisprudence, holds that the pronunciation of three divorces in a single breath would not affect three separate divorces pronounced in different Tuhar periods. This Quranic verse concludes that “a divorce is only permissible twice; the husband should wait for a reasonable period before pronouncing the third and last pronunciation of the Talaq sentence.”
“According to Prophet Mohammad,”
The Prophet regarded Talaq as the most hateful act before the almighty god; it prevented conjugal happiness and interfered with the proper bringing up of children. The Prophet showed his dislike of ending a marriage by divorcing.
Hadis dictated talaq as the most detestable of all permitted things before God.
Omnipotence of Muslim husbands regarding divorce
Muslim marriage Husbands possessed unlimited powers regarding seeking divorce; they could divorce their wives at any time, due to any reason or without giving any reason at their arbitrary wish. Husbands were not required to seek permission or consent from their wives before pronouncing the sentence of talaq, that is, to declare the intention of divorce either by ‘word of mouth’ or ‘in writing form’, the sentence of talaq being “I divorce you” or “Talaq, Talaq, Talaq” or “Talaq thrice”.
All the separations affected by causes directly originating in the husband were termed “Talaq,” whereas the term “Faraqat” referred to separating the marital relationship with the assistance of a court of law.
The uncodified Muslim personal law gave total authority to husbands and zero authority to wives of their own to seek divorce. The Prophet was extremely disapproving of the arbitrariness of husbands giving divorce to their wives at their will. The Prophet also regarded the husband’s conduct as according to the existing situation of Islam; it may be impossible to completely abolish the customs followed by men within the Muslim community.
Prophet Mohammad had to develop the mentality of Muslim men to a highly moderate and developed mindset from the outdated ideology of the superiority of husbands over wives. He restrained the husband’s unlimited arbitrary power to give divorce and gave the woman the right to obtain separation on some specific grounds discussed further in this article.
The inferiority of Muslim wives regarding divorce
The Prophet Mohammad is noted to have quoted, “If a woman is prejudiced by a marriage, let it be broken off” within the Sunnah. The Prophet extracted some of the powers of the husband to give Talaq and embedded the same in the wife, through whom she gave Talaq to his husband.
To pronounce a valid talaq, the spouse shall possess the following essentials:
Under Shia law,
Attained the age of puberty (15 years) (Baligh),
Must be of sane nature or sound mind at the time of pronouncing talaq (Aqil),
Not under any compulsion, duress, intoxication, etc.
If oral, then the presence of at least 2 witnesses (either 2 males or 1 male with 2 females).
Under Sunni law,
Attained the age of puberty (15 years) (Baligh),
Must be of sane nature or sound mind at the time of pronouncing talaq (Aqil).
Grounds for Muslim wives to seek divorce under personal law
Zihar (injurious assimilation)
If the husband compares his wife to his mother or any other female within a prohibited degree, the wife gets a right to refuse herself until he performs adequate penance to compensate for his wrongful act. In default of the expiration of penance, the wife gets the right to apply for judicial divorce.
Talaq-E-Tafweez (Delegated Talaq)
Tafweez means delegation of power. A husband may, himself, delegate his power to repudiate the marriage to his wife, or sometimes a third party. Such an agreement may happen before or after marriage, imposing a situation or condition on the delegation.
Talaq-e-Tafweez is one of the most important forms of divorce under Muslim law, as it gives Muslim wives a right to divorce their husbands without concern or obtaining consent from their husbands. A wife can only divorce the husband in situations where the husband has delegated such power to her or under an agreement, not on her own arbitrary will. Approaching a court of law is not required for the wife to take divorce herein; only an oral or written declaration to the husband is enough to enforce the dissolution of marriage.
Ameer Ali gives three kinds of tafweez. These are:
Ikhtiar: giving her the authority to talaq herself;
Amr-bayed: leaving the matter in her own hands; and
Mashiat: gives her the option to do what she likes.
Khula (Redemption)
Divorce happens at the request of the wife. The literal meaning of Khula or redemption, is “to lay down.” In legal Muslim jurisprudence, Khula means laying down by a husband of his rights and authority over his wife. In khula, the consent of the husband is obtained by the wife when she gives or agrees to give a fixed amount of money to the husband or simply waives her dower in lieu of her release from marital status.
Lian (Imprecation)
The husband falsely accused his wife of committing adultery and imputed unchastity. If a husband accuses the wife of infidelity, he is liable to punishment for defaming his wife unless he proves his allegation by the testimony of four witnesses, which is acceptable under law. If there was no proof produced, then the wife has a right to divorce her husband under the doctrine of Lian.
By mutual consent of husband and wife
Mubarat (Divorce by mutual agreement)
The meaning of “Mubaraa” is an act of mutually freeing one from another. It is the desired separation mutually from the consent of both sides together. The offer of divorce is given either from the husband’s or wife’s side and consecutively accepted by the other spouse.
When an offer of mubarat is accepted, it becomes an irrevocable divorce (talaq-ul-bain) and the wife needs to observe an iddat period of 3 months to marry another man.
Through Qazi (the magistrate or judge of a Sharia court):
Faskh
Faskh means cancellation, abolishment, rescission, revocation, abrogation, or annulment. Under Muslim law, a lady can approach the Qazi to dissolve her marriage. The Quran says the husband has a duty to give proper treatment to his wife. The wife is also bound by the duty to obey all the lawful orders of her husband. If the husband and wife both conclude that they cannot live together, either spouse can refer the matter to Qazi, who can, after careful examination, terminate the marriage.
According to Tyabji, the following were the main grounds for dissolving the marriage at the instance of the wife:
The marriage is irregular;
A person had the option to rescind marriage and thus exercised his option;
The marriage was held within prohibited degrees of marriage or fosterage;
The marriage was contracted between non-Muslims, and the parties adopted Islam later.
Condition of wives after enforcement of “The Dissolution of Muslim Marriages Act, 1939”.
Before the passing of the Dissolution of Muslim Marriages Act, 1939, there was no codified legislation through which a Muslim lady could ask for the dissolution of her marriage. Muslim ladies could only apply for the dissolution of their marriages under the subject matters specified within the doctrine of Faskh.
Currently for dissolving the marriage by wife, first she needs to file a civil suit in family court on any ground of judicial divorce provided under the Act or any ground specified within the doctrine of Faskh. After the court gets satisfied hearing both parties, it provides a decree for dissolution of marriage on the grounds claimed and proved by the wife side. This decree is proof of marriage dissolution and the end of the marital tie between the couple. The husband can appeal the decree provided by the higher court and the wife is restricted from marrying someone else until the appeal period for the husband has expired or the appeal has been dismissed by a superior court.
Grounds for judicial divorce provided under the Act
A Muslim wife married within Muslim law provisions shall be entitled to obtain a decree for the dissolution of her marriage based on any ground provided under Section 2 of the Dissolution of Muslim Marriage Act:
Missing husband [Section 2(1)]
The husband has not been contacted or discovered living for a period of four years. If a decree of divorce is obtained by the wife, then she shall not marry within a period of six months from the passing of such a decree. If the husband appeared within six months and satisfied the court that he was willing to perform his marital obligations, the court may set aside the decree.
The wife filing suit must contain the following information:
The full names and addresses of the residents of the husband, along with the relatives who would have been eligible to inherit property from the divorceable husband if he had died on the date of the filing of the plaint;
Notice shall be served of such suit filed against such heirs;
The right to be heard shall be given to such heirs;
Within such a suit, the parental uncle and brother of the husband are to be made parties.
Failure to maintain [Section2(2)]
If a husband is married under Muslim law and has neglected or failed to provide for maintenance for a period of two years to his wife, then the wife can obtain a decree for the divorce. Within Muslim law, the wife who was not faithful or obedient to the husband or who did not perform her marital duties is not bound to maintain her. So, if a wife files a suit for divorce on the ground of failure of maintenance and the husband proves that she was neither faithful nor obedient to her husband, the dismissal of the suit will take place.
Case- Rabia Khatoon vs. Mukhtaar Ahmad (1966)
In the landmark case of Rabia Khatoon vs. Mukhtaar Ahmad, the court ruled that a wife who lives separately from her husband without any valid reason will lose her right to seek divorce on the grounds of a lack of maintenance. This judgement highlights the importance of cohabitation in a marriage and establishes that a wife’s conduct can impact her entitlement to maintenance from her husband.
The court’s decision in this case was based on the principle that both spouses have certain obligations and responsibilities within a marriage. One of these obligations is the duty to cohabit, which means living together under the same roof and sharing a common household. When a wife voluntarily chooses to live separately from her husband without any justifiable cause, she breaches this duty.
The court held that when a wife refuses to cohabit with her husband, she not only deprives him of his conjugal rights but also makes it difficult for him to fulfil his marital obligations, such as providing maintenance. Therefore, the court ruled that such conduct on the part of the wife amounts to a forfeiture of her right to claim maintenance from her husband.
However, it’s important to note that the court did not completely deny the wife’s right to maintenance. If she has a valid reason for living separately, such as abuse or neglect by the husband, she may still be entitled to maintenance. The court’s decision in Rabia Khatoon v. Mukhtaar Ahmad emphasises the importance of cohabitation in a marriage and serves as a reminder that spouses must make every effort to uphold their marital vows and obligations.
Case- Mst. Nur Bibi vs. Pir Bux (1950)
Judgement:
In the landmark case of Mst. Nur Bibi vs. Pir Bux, the court expounded on the intricacies of marital obligations and the rights of spouses under the Dissolution of Muslim Marriages Act. The judgement centred on the issue of maintenance and its impact on a wife’s right to dissolve her marriage.
The court held that if a husband fails to provide maintenance to his wife for a continuous period of two years immediately preceding the filing of a suit, the wife is entitled to seek dissolution of her marriage under Section 2 (ii) of the Act. This right is granted irrespective of the wife’s willingness or actions in refusing to live with her husband during the period of non-maintenance.
The court recognised that a wife’s refusal to live with her husband could impact her ability to enforce any claim for maintenance against him. However, this factor alone does not negate the husband’s obligation to fulfil his maintenance responsibilities. The court emphasised that the provision of maintenance is a fundamental right of the wife, and the husband’s failure to fulfil this obligation for a significant period constitutes a breach of his marital duties.
This judgement underscores the importance of upholding the principles of fairness and equity in marital relationships. It ensures that wives are not left destitute due to their husbands’ neglect or unwillingness to provide for their basic needs. The court’s decision empowers women to seek legal remedies when their marital rights are violated, promoting gender equality and protecting the rights of vulnerable individuals within matrimonial bonds.
Husband in Prison [Section 2(3)]
If the husband has been sentenced to a period of seven years or more imprisonment, the wife would be entitled to obtain a divorce decree from the court. However, the decree shall not be passed immediately. It shall be passed only after the expiration of the period for appeal by the husband or after the appeal by the husband has been dismissed by the Supreme Court of India.
The rationale behind this provision is to give the husband an opportunity to challenge his conviction and sentence. If the husband is successful in his appeal, the divorce decree will not be granted. However, if the husband’s appeal is dismissed, the divorce decree will be granted.
This provision is important because it protects the rights of both the husband and the wife. It ensures that the husband has an opportunity to challenge his conviction and sentence, while also ensuring that the wife is not left in limbo indefinitely.
In addition, this provision also takes into account the fact that a divorce can have a significant impact on the lives of both the husband and the wife. It is therefore important to ensure that a divorce is not granted lightly and that both parties have had an opportunity to consider the consequences of their actions.
If the husband is successful in his appeal, the divorce decree will not be granted. However, if the husband’s appeal is dismissed, the divorce decree will be granted.
No marital obligations were performed [Section2(4)]
Herein, the husband, without reasonable cause, has failed to perform his marital obligations for a period of not less than three years. The wife becomes eligible to obtain a decree of marriage divorce.
The Act did not define ‘marital obligation of the husband’. For this ground, the husband’s failure to perform conjugal obligations as to ‘not cohabit with her’ or ‘desert her’ without reasonable cause makes up for the failure of the marital obligations of the husband, as a breach of other obligations is already a ground for divorce under this Act.
Case: Veeran Sayvu Ravuthar vs. Beevathumma (2002)
The case of Veeran Sayvu Ravuthar vs. Beevathumma, decided by the Indian courts in 2002, addressed the issue of divorce under the Dissolution of Muslim Marriages Act, 1939. In this significant judgement, the court examined the circumstances under which a wife could seek a divorce due to the husband’s failure to fulfil his marital obligations.
Facts of the Case:
The plaintiff, Veeran Sayvu Ravuthar, was the husband in the marriage.
The defendant, Beevathumma, was the wife in the marriage.
The couple was married under Muslim law.
After the marriage, Beevathumma resided in her parent’s house or her own house, away from her husband.
Veeran Sayvu Ravuthar made no attempts to establish conjugal company with his wife.
He did not initiate any legal action for the restitution of conjugal rights.
Legal issue:
The primary legal issue before the court was whether Beevathumma was entitled to a divorce under Section 2(iv) of the Dissolution of Muslim Marriages Act, 1939. This section allows for the dissolution of a Muslim marriage on various grounds, including the husband’s failure to perform his marital obligations without a reasonable excuse.
Court’s reasoning and judgment:
The court analysed the facts of the case and concluded that Veeran Sayvu Ravuthar had failed to fulfil his marital obligations towards Beevathumma.
The court noted that he had not attempted to establish conjugal company with his wife and had not taken any legal steps to restore their marital relationship.
The court emphasised that a husband has a legal and moral responsibility to provide for and protect his wife, including providing her with a suitable place of residence and conjugal company.
In this case, Veeran Sayvu Ravuthar’s failure to do so constituted a breach of his marital obligations.
The court held that Beevathumma was entitled to a divorce under Section 2(iv) of the Dissolution of Muslim Marriages Act, 1939, as her husband had failed to perform his marital obligations without providing any probable or reasonable cause.
Significance of the judgement:
The judgement in Veeran Sayvu Ravuthar vs. Beevathumma is significant for several reasons:
It reinforces the principle that both spouses in a marriage have certain rights and obligations and that failure to meet these obligations can lead to the dissolution of the marriage.
It provides legal recourse for women who are denied their conjugal rights and face abandonment or neglect from their husbands.
It emphasises the importance of communication and open dialogue between spouses to resolve marital issues before resorting to legal proceedings.
The judgement serves as a reminder that mutual respect and understanding are essential for a healthy and lasting marriage and that neglect of marital obligations can have serious consequences, including the possibility of divorce.
Impotence of the husband [Section2(5)]
Impotency means the inability to consummate the marriage via sexual intercourse between the married couple. Impotence may be physical or mental. If the husband was suffering from erectile dysfunction (impotency) exactly during the course of marriage and continues to be so, the wife is entitled to get a divorce judicially.
The wife needs to prove two facts to obtain a decree:
The husband was impotent at the initial stages of the marriage, and
The husband continued to be impotent until the suit was filed by his wife.
Judgement- The wife filed a petition for divorce on the ground of the impotency of the husband. The husband, to prove his potency, filed a medical certificate declaring that the man is able and potent.
Verdict- A husband is impotent if he is not able to have some sexual relationship with his wife and make her pregnant. Impotency in Section 2 denotes impotency concerning his wife, not concerning any other woman, generally any female. A husband can be competent to perform sexual intercourse and be able to pregnant her with his hormones but he can be impotent for only his wife, or maybe vice versa. Therefore, where the wife claims that her husband ceases to be potent, the husband shall satisfy the court that he can perform effective and productive sexual intercourse with his wife regardless of any general women.
Insanity and venereal disease [Section2(6)]
If the husband has been insane for a period of two years or if the husband has been suffering from a virulent disease for a period of two years, consider it recently. The insanity of the husband, with or without lucid intervals post-marriage as well as pre-marriage, arising either before or after the consummation of marriage, is all covered within this ground.
Marriage before puberty [Section2(7)]
If consent for marriage was given by her natural parents or another guardian before she reached the age of 15 years. She can repudiate the marriage through a decree of divorce before attaining the age of 18 years and her marriage has not been consummated after she attained the age of puberty.
Facts- A Muslim girl was put into marriage by her parents when she was 7 years old. The birth certificate and passport of her mother proved that the petitioner was 7 years and 23 days old at the time her parents contracted child marriage with their consent. This age was also confirmed by the ration card. The petitioner and respondent had never lived together as husband and wife and this was proved with evidence. Their marriage was never consummated at any time. Between attaining the age of puberty and attaining 18 years of age, the girl applied for the dissolution of her marriage before the Family Court at Jodhpur.
Verdict – High Court held that the married girl was eligible to obtain a decree to dissolve her marriage. Even if a married girl below 15 years of age whose marriage was consummated, this conduct shall not terminate her option to repudiate the marriage after she attains the age of puberty. The marriage should not be consumed after the wife attains puberty.
Cruelty by husband [Section2(8)]
A decree dissolving a marriage can be claimed by a Muslim wife if the husband treats her with cruelty. Cruelty can be both mental and physical. More specifically, the following conditions shall be deemed to be cruelty to the wife:
Constantly assaults her or makes her feel pathetic or bad, even if such conduct does not amount to physical ill-treatment.
lives an infamous life or has affairs with women of poor repute, or
forces his wife to live an immoral life, or
disposes of the property or prevents the wife from enforcing her legal right over the property, or
prevents or disturbs her from practicing or propagating her religious beliefs or faith,
If the husband has more than one wife and he does not treat each wife equally or similarly in accordance with the instructions provided in the Quran.
Facts- The parties got married in the year 1997. Within the same year, they got separated and during their subsistence, the husband got married to someone else within five months of separation. This came to light when he was examined in court. The first wife filed a suit seeking divorce on the grounds that her second marriage recently caused mental cruelty to her.
Verdict- The Court was very concerned with the attitude of the husband towards getting married again within five months of separation. The husband had remarried another female recently during the subsistence of a marriage that legally proceeded; necessarily, that will be mental cruelty towards the first wife. The husband was willing to cohabit with the first wife while enjoying the other wife and continuing the second marriage; there was no reason to reject the petitioner’s plea to grant a divorce decree.
The Muslim husband can have more than one wife; hence, there is also no reason to reverse the decree. Bigamy is permitted as per Muslim law. Even if the husband claims that he can equitably treat both wives without discrimination, it is practically impossible to do that without disappointing the other wife subsequently.
Other grounds for dissolution recognised by Mohammedan law [Section2(9)]
The grounds for the dissolution of a Muslim marriage under Muslim personal law are not limited to those codified in the Dissolution of Muslim Marriages Act (DMMA). The Act covers several additional grounds, including Ila, Zihar, Talaq-i-Tafweez, Khula, Lian, Mubaraat, Faskh, and apostasy from Islam. These grounds ensure that Muslim women have the right to seek the dissolution of their marriage on various grounds beyond those explicitly mentioned in the Act.
Ila: Ila is the husband’s oath to abstain from sexual intercourse with his wife. If the husband maintains this oath for four months, the wife can seek dissolution of the marriage.
Zihar: Zihar is a metaphor in which the husband compares his wife to his mother or other close female relatives. This act is considered offensive and degrading and can be grounds for divorce.
Talaq-i-Tafweez: Talaq-i-Tafweez is a type of divorce where the husband delegates the power of divorce to his wife. If the wife exercises this power, the marriage is dissolved.
Khula: Khula is a divorce initiated by the wife with the consent of her husband. The wife may offer compensation to the husband in exchange for the dissolution of the marriage.
Lian: Lian is a process where both spouses make oaths denying or confirming the paternity of a child. If the oaths are contradictory, the marriage may be dissolved.
Mubaraat: Mubaraat is a mutual agreement between the husband and wife to dissolve their marriage without assigning blame to either party.
Faskh: Faskh is the dissolution of a marriage by a court order due to factors such as cruelty, insanity, or impotence.
Apostasy from Islam: If one spouse converts to a religion other than Islam, it may be considered grounds for divorce in some interpretations of Islamic law.
The inclusion of these grounds ensures that Muslim women have the opportunity to seek the dissolution of their marriage in cases where traditional grounds may not apply. By codifying these grounds, the DMMA aims to protect the rights of Muslim women and provide them with legal recourse when their marriages have irretrievably broken down.
Legal consequences of divorce
The rights and obligations applicable to both husband and wife shall arise from the divorce:
After the divorce becomes irrevocable, the rights to inherit each other’s property cease to exist.
The unpaid dower becomes payable immediately, both prompt and deferred dower, if the married wife is entitled to immediate payment of the whole of the consummated within the contractual marriage settled between the parties;
If the marriage was not consummated even once, and the dower amount was specified in the marital contract, she is entitled to only half of that unpaid dower, but the burden of proof lies upon the wife to prove that the marriage was not even consummated once.
The wife becomes entitled to claim maintenance during the Iddat period observed due to divorce but not during the Iddat due to the death of her husband.
Both husband and wife become eligible to contract another marriage. If the marriage was consummated, after the wife observes the Iddat period of 3 months, she becomes entitled to marry another man. If the marriage was never consummated, then the wife is free to marry again immediately without observing any Iddat period.
If the marriage was consummated with the wife seeking a divorce and the husband had four wives at the date of divorce, including the divorced wife, he may marry another wife after the competition of the Iddat period of the divorcing wife, as practically he shall be left with three wives, then he can marry the fourth wife.
Cohabitation becomes unlawful after the talaq procedure is completed and talaq becomes irrevocable. Children born out of cohabitation after irrevocable divorce are considered illegitimate and cannot be acknowledged by the father.
Remarriage between a divorced couple is not lawful where the husband has divorced the wife, unless and until the concept of “Nikaah Halala” or “Halala” is adopted and thus applied to remarry that same divorced wife.
The procedure for applying Halala is:
The wife shall observe 3 months of the Iddat period;
After Iddat is observed completely, she should be lawfully married to another man;
This marriage must actually be consummated by the new husband;
The new husband must die or give talaq to the wife married for completing Halala rituals;
The wife should observe the period of Iddat in accordance with the dissolution of the second marriage, either by death or divorce for the later husband.
A marriage without fulfilling the conditions of Halala is irregular, but not void. In accordance with Muslim personal law. But mere cohabitation between the divorced couple without the fulfilment of the above conditions to remarry the divorced wife is void, and the children born out of such cohabitation are illegitimate and cannot be acknowledged by the father. This theory was elaborated inRashid Ahmad vs. Anisa Khatur.
Effect of apostasy (conversion to another religious faith)
Apostasy by wife
Section 4 of the Dissolution of Muslim Marriages Act of 1939 states that if a married Muslim woman exercises renunciation of Islam or converts to a faith other than Islam, this shall not by itself operate to dissolve her marriage immediately but the wife shall be entitled to obtain a decree for the dissolution of her marriage based on any of the grounds mentioned in Section 2 of the Act. The provisions of Section 4 shall not apply to a woman who was converted from any other faith to Islam and who re-embraces her former faith. An apostate wife is eligible to recover her deferred dower after her conversion.
Apostasy by husband
Section 4 of the Act does not apply to apostasy by a husband. Apostasy by the husband is still governed by their Muslim personal law regarding apostasy, which states that if a Muslim husband renounces his belief in Islam, his marriage is immediately dissolved just after the renunciation. When a Muslim husband converts to another religion, the wife ceases to be the Muslim wife of that husband. The wife is also not further governed by the provisions of Muslim law and she is not required to observe the Iddat period to marry someone else.
Case- Sarla Mudgal vs. Union of India
Facts:
In this case, the husband was accused of committing the offence of bigamy as defined under Section 494 of the Indian Penal Code, 1860. The husband, who was Hindu by faith, married twice. To solemnise his second marriage, he converted to Islam without legally dissolving his first marriage. This act raised the question of the validity of his second marriage and whether it constituted bigamy under the law.
Verdict:
The Supreme Court of India delivered a significant verdict in this case. The Court held that before the husband could enter into a second marriage, it was imperative for him to dissolve his first marriage in accordance with the provisions of the Hindu Marriage Act, 1955. The Court reasoned that the first marriage, being valid under Hindu law, continued to subsist and was not automatically dissolved by the husband’s conversion to Islam. Consequently, the Court declared the second marriage to be illegal and void under Section 494 of the Indian Penal Code, 1860.
Significance:
The Supreme Court’s verdict in Sarla Mudgal vs. Union of India has far-reaching implications for the legal recognition of bigamy in India. The Court’s emphasis on the need to comply with the Hindu Marriage Act, 1955, for the dissolution of a Hindu marriage, highlights the importance of adhering to the legal framework governing marriage and divorce. The verdict also underscores the principle that religious conversion alone does not automatically dissolve a marriage solemnised under a specific personal law.
This case serves as a reminder that individuals cannot circumvent the legal requirements for dissolving a marriage by simply converting to a different religion. It also emphasises the need for clarity and consistency in the application of marriage and divorce laws, ensuring the protection of the rights and interests of all parties involved.
Effect of the dower on divorce
Section 5 of the Dissolution of Muslim Marriage Act, 1939 states that “rights to dower are not to be affected.” This means that any right that a married Muslim woman possesses with regards to her unpaid dower under Muslim law remains entitled to the whole amount of the dower discussed at the time of her marriage if the marriage has at least been consummated once during the subsequent period of her marriage. The Dissolution of Muslim Marriages Act, 1939, does not infringe any right that a Muslim married woman may have under Muslim law to her dower or any part of matrimonial relief that she possesses due to the occurrence of the dissolution of her marriage.
Also, the Muslim personal law empowers the Muslim wife to be entitled to recover half of the dower amount even if the marriage has never been consummated.
Conclusion
Muslim wives did not have many grounds to dissolve their marriage through options provided within “Muslim law” and the “Muslim personal law (Shariyat) Applicability Act 1937.” The legislation, through the enactment of “The Dissolution of Muslim Marriage Act 1939,” gave several grounds to Muslim wives filing a suit in family court for dissolving their marriage on the account of their husband at default, such as falling within a ground specified in Section 2 of the Act.
Currently, Muslim wives can dissolve their marriage within the court on any ground specified under Muslim law, Muslim personal law (Shariyat) Applicability Act 1937, or the Dissolution of Muslim Marriage Act 1939.
Scaling up bioprocesses is a critical attempt in biotechnology and microbiology, aiming to transfer technology from a research laboratory to commercial scale after detecting its commercial viability. This process involves the optimisation of parameters at the flask level and comparing these results on a large scale for industrial production by exploring the challenges and developing strategies for scaling-up of bioprocesses. The ultimate goal of scaling-up is to achieve improved production, maintain the quality of the product and determine the economic feasibility of the process. Microorganisms are diverse in nature and prove potential for the synthesis of various industrial products like alcohols, amino acids, antibiotics, beverages, enzymes, pharmaceutical drugs, vaccines, vitamins and organic acids. The microbial isolates that show industrial potential are identified using various morphological, physiological, biochemical, chemotaxonomic and molecular techniques. After identification, the isolates are submitted to a microbial depository/ gene bank for long-term preservation using glycerol stocks, lyophilization and cryopreservation methods. The novel isolates are generally deposited under a safe deposit or patent deposit to get commercial benefit from these strains. The technologies using natural isolates for commercial gains need prior approval from the National Biodiversity Authority with a benefit-sharing agreement. There are many regulatory approvals and quality controls before marketing the product.
Microbial products of industrial importance
Microorganisms prove tremendous applications for the synthesis of various industrial products, including primary and secondary metabolites synthesised at log and stationary phases, respectively. Microorganisms can survive in diverse environments, including low temperatures, specifically -20 °C (psychrophiles), high temperatures of 80 °C (thermophiles), and extremely high temperatures of up to 110 °C (hyper-thermophiles). Similar to temperature, microbes can also thrive well under acidic conditions with a pH of 2 (acidophile) and alkaline conditions with a pH of 11 (alkalophile). Extremophiles, i.e., microbial cells that can grow and produce primary and secondary metabolites at high temperatures, acidic pH and high osmotic concentrations, are of industrial importance. Microbial cells that require oxygen for growth are called aerobes, whereas microbes that can grow well under oxygen deficient conditions are called anaerobes. Therefore, companies are spending millions of dollars in their research and development (R&D) for the isolation of potential microbial candidates that can be exploited for the synthesis of industrial products. The microbially synthesised products, which are of industrial importance, include amino acids, antibiotics, biofuels, food additives, enzymes, organic acids, vaccines, pharmaceutical drugs, beverages, single cell proteins, vitamins, biofertilizers, etc. Microbes are a good source for producing natural drugs possessing antiviral, antimicrobial, immunosuppressive and cytotoxic activities.
Tailoring of media and process parameters at flask level
Industrial products that include microbiological and fermentation processes utilise microbial strains, for which there is a need for tailoring/ or customisation of various media and process parameters to enhance the production yield, ensure product consistency and reduce the production cost of the desired product. Media parameters involve the carbon source with its concentration, the nitrogen source with its composition and combination of organic and inorganic nitrogen sources, trace elements that may act as inducers or inhibitors for various enzyme-based reactions, osmolarity to prevent cell stress and induce specific metabolic pathways. Process parameters include the effects of temperature, pH, aeration and agitation rate, dissolved oxygen, pressure and gas composition. Utilisation of agro-industrial wastes such as wheat straw, rice straw, paddy straw, bagasse, and corn cob, which are available in huge amounts in developing countries like India, further helps to reduce the cost of production along with promoting the circular economy principle.
Statistical methods, algorithms, and modelling approaches, including Design of Experiments, Response Surface Methodology, Multivariate Data Analysis, Artificial Intelligence, Machine Learning, and Fluid Dynamics, help to understand and optimise the media and process parameters in industrial applications.
Scaling-up of bioprocesses for commercialisation
Scaling-up refers to shifting from laboratory scale to commercial scale, and it includes both upsteam and downstream processes with the final aim of launching a product in the market. Scaling-up of bioprocesses is a complex process that requires interdisciplinary collaboration between biologists, engineers, chemists, regulatory experts, and business professionals to ensure the successful commercialization of biotechnological products. It takes into account bioreactor design, cell culture and production conditions at the fermentor level, harvesting and recovery of the product, quality control and regulatory compliance associated with the product to be marketed, validation studies, risk assessment and contingency plans, market and economic considerations, and continuous improvement with optimisation.
The media and process parameters, which have been optimised at the flask level, may not work well at the bioreactor level due to scale effects, mass transfer limitations, cell viability, shear stress and the time required for inoculum adaptation. Hence, understanding the metabolic pathway, cellular kinetics, and critical process parameters (CPPs) helps in the detailed characterization of the process. Scaling factors such as aeration rate, agitation size, oxygen transfer coefficient, heat dissipation, and vessel size need to be determined based on empirical data and engineering principles. The feed rate of the media depends on the type of fermentation process, i.e.
In batch fermentation, in which all the media components are added only once, followed by product recovery.
In fed-batch fermentation, media is added in small intervals to achieve better product yield.
In continuous fermentation, there is the continuous addition of media containing nutrients and inducers from the inlet and removal of the product from the outlet to avoid the accumulation of inhibitors and toxic substances.
To make production cost-effective, most of the industrial processes are conducted on a fed-batch and continuous scale.
Downstream processing is done for product recovery by separating biomass, purifying and concentrating. Purification of the product is carried out by using different filtration, chromatography, centrifugation, precipitation, extraction, dialysis and ultrafiltration techniques.
Validation studies are required during the scale-up of bioprocesses to ensure product quality, process consistency and reliability at the industrial scale. Identification of potential risks like equipment failure, contamination of media and the development of contingency plans during commercial operations are other parameters that need to be considered during the commercial synthesis of products.
Factors considering during technology transfer
There are various factors that need to be considered while transferring knowledge, skills, know-how or intellectual property from one organisation to another. The patent status of a technology is very important, as it is quite easy to transfer technologies for which patents have already been granted in different jurisdictions, including India. Whereas, the technologies for which patent applications that have been either abandoned or rejected by the Contoller General of Patents, Designs and Trademarks are difficult to transfer and commercialise. Technology Readiness Level (TRL) is very crucial during the valuation of a technology, i.e., a technology with a low TRL (initial level technology) is expected to be transferred at a lower amount because there are a lot of efforts and inputs required by the recipient entity; however, a technology with a high TRL (advanced level technology) is valued at a higher amount as this technology is almost ready and minimum inputs are required from the recipient entity before commercialising the product. The economic viability of a technology is estimated by its initial investment, operational costs, potential revenues, and return/ profit from the investment. Scaling up bioprocesses from the laboratory to commercial production is a critical step in the development of new biopharmaceuticals and other biologics. This process involves a number of challenges, including:
Maintaining product quality and consistency
Ensuring process efficiency and cost-effectiveness
Meeting regulatory requirements
To successfully scale up a bioprocess, a number of practical approaches can be employed. These approaches include:
Process characterisation: This involves understanding the key process parameters that affect product quality and yield. This information can be used to design a scale-up strategy that minimises the risk of process failure.
Pilot-scale studies: These studies are conducted at a smaller scale than commercial production, but they are large enough to provide meaningful data on process performance. Pilot-scale studies can be used to optimise process conditions and identify potential problems that may arise during scale-up.
Process validation: This involves demonstrating that the scaled-up process consistently produces a product that meets all of the required specifications. Process validation is typically conducted through a series of validation runs, which are designed to test the process under a variety of operating conditions.
Technology transfer: This involves transferring the scaled-up process from the development laboratory to the commercial manufacturing facility. Technology transfer is a complex process that requires careful planning and execution.
By following these practical approaches, bioprocess companies can successfully scale up their processes and bring new products to market.
Additional considerations for scaling up bioprocesses
In addition to the practical approaches described above, there are a number of other factors that should be considered when scaling up a bioprocess. These factors include:
Regulatory compliance: Bioprocess companies must ensure that their scaled-up processes comply with all applicable regulatory requirements. This includes obtaining the necessary permits and licenses, and conducting the required environmental impact assessments.
Cost of scale-up: The cost of scaling up a bioprocess can be significant. This cost includes the cost of building or expanding a manufacturing facility, the cost of purchasing new equipment, and the cost of training personnel.
Time to market: Bioprocess companies must balance the need to scale up their processes quickly with the need to ensure product quality and regulatory compliance. A rushed scale-up can lead to problems that can delay the launch of a new product.
By carefully considering all of these factors, bioprocess companies can successfully scale up their processes and bring new products to market in a timely and cost-effective manner.
The technical feasibility of the technology is another parameter that is very crucial, and it considers all the resources and existing infrastructure of the recipient entity and checks the viability of the technology. Training, skill development and support are necessary to build capability and capacity in the recipient organisation. Understanding market demand and opportunity by considering market size, competitive products available in the market, consumer preference and regulatory requirements helps to understand market demand and potential commercialization prospects of the technology. Risk assessment includes all the risks associated with market acceptance, implementation challenges and legal issues.
Considering all these factors, a successful transfer of technology requires a maximum gain in profits and long term good relationship between the provider and recipient entities.
Regulatory approvals
While transferring the products or technologies originating from nature and/or natural resources of the Indian Territory from Research and Development (R&D) to the industrial level, various regulatory approvals need to be obtained. If the research possess any biological material which is isolated directly from the natural environment or is derived from the natural isolate, National Biodiversity Approval (NBA) is required under Biodiversity Act, 2002 by filing Form-II. Similarly, National Biofuel Policy of India promotes the use of biofuels, also called as green fuel, in India to fulfil the enhancing fuel demand of rising population and prevent environmental pollution. Any entity with biofuel production facility needs to obtain permission from National Biofuel Authority (NBFA) to ensure compliance with environmental, safety and quality standards. Permission for environmental clearance is obtained from Ministry of Environment, Forest and Climate Change (MoEFCC).
The fermentation products that are projected for human consumption, such as nutraceuticals, health drinks, organic acids, amino acids, etc., need permission from the Food Safety and Standards Authority of India (FSSAI). The pharmaceutical products, vaccines and drugs require clearance from the Drug Controller General of India (DCGI) after conducting various preclinical and clinical trials. These products can be marketed only after getting approval by DCGI to meet safety and efficacy standards.
Conclusion
It has been concluded that microorganisms are industrially important biocatalysts, and they can be isolated from diverse habitats. These isolates can be exploited for the synthesis of various industrial products. Various media and process parameters are tailored at the flask level to achieve maximum product yield. Shifting from the lab/pilot scale to a commercial scale involves product synthesis at the bioreactor level, where some parameters like aeration rate, agitation rate, and oxygen transfer coefficient need to be optimised. Following product synthesis, there is product recovery by downstream processing with the final aim of enhancing the purity of the product. The parameters that need to be considered while transferring technology from one entity to another are intellectual property status, technology readiness level, technical feasibility in the recipient entity and economic viability of the technology. Different regulatory approvals need to be obtained from the authority before the launch of biotechnological products into the market.
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