Balmukand vs. Kamla Wati and Ors. (1964)

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July 9, 2024

This article is written by Isha Garg. It provides a detailed analysis of the Supreme Court of India’s verdict in the case of Balmukand vs. Kamla Wati and Ors. (1964), including the case facts, issues raised, arguments of the parties and reasoning behind the judgement. It also discusses in brief the concept of Karta under Hindu law and his power of alienation of the joint Hindu family property. It discusses the question of when the Karta of the family can validly sell the joint family property without the consent of other members of the family.

Table of Contents

Introduction

Hindu law, one of the oldest legal systems in the World, is rooted in the religious and philosophical texts of ancient India. Its development dates back to the early Vedic period. However, it was codified and modernised after India gained independence. Hindu law deals with marriage, divorce, adoption, maintenance and property rights among Hindus. The Hindu Code Bills were introduced, leading to the enactment of various legislation, one of which is the Hindu Succession Act of 1956, which deals with the laws of inheritance and succession among Hindus. It lays down rules and procedures for the distribution of property following the death of an individual.

The Hindu Succession Act of 1956 is landmark legislation in India that deals with the inheritance and property rights of all Hindus in India. It aims to provide a legal framework for the devolution of property among Hindus. It establishes a uniform and equitable system of succession, grants property rights to women, and introduces the concept of intestate succession. The concept of a joint family is largely governed by traditional Hindu law. The Mitakshara joint family is a unique contribution of Hindu jurisprudence that is unbeaten in any ancient as well as contemporary legal system. A Hindu joint family is headed by the chief of the family, who is known as Karta as per customary Hindu law. He undoubtedly manages the Hindu joint family and has extensive authority over the family. His authority includes alienation of the joint family property. However, his power to alienate joint family property is not absolute but rather limited. Generally, no individual coparcener, including Karta, can allocate the property of the joint family without the assent of all the members of their family. However, in special circumstances, Karta has the authority to dispose of property independently without the consent of other coparceners.

But a question may arise if the Karta alienates property without the approval of other coparceners and in the absence of exceptional circumstances, what will be the validity of that alienation?

The Supreme Court of India discussed the above issue in the case of Balmukand vs. Kamla Wati and ors. (1964). In this case, the Hon’ble’ Apex Court held that a transaction by the Karta of a Hindu joint family in regard to joint family property that is deemed beneficial for the family does not necessarily have to be defensive in character, rather, what transactions are for the benefit of the family need to be ascertained as per the facts and circumstances of each case.

Details of the case

Case Name: Balmukand vs. Kamla Wati & Ors.

Case No.: Appeal (civil) No. 7 of 1962.

Case Type: Civil Appeal

Name of the Court: The Supreme Court of India.

Citation: 1964 AIR 1385 and 1964 SCR (6) 321.

Petitioner: Balmukand

Respondent: Kamlawati and ors.

Bench: Hon’ble K. Subba Rao and J.R. Mudholkar JJ.

Date of Judgment: January 27, 1964.

Laws Involved: Hindu law

Facts of the case

The plaintiff (Balmukand) owned 79/120th share in Kasra Nos. 494, 495, 496, 497, 1800/501, and 529, as recorded in the 1943-44 zamabandi, located in Mauza Faizpur of Batala. On October 1, 1943, he bought a 23/120th share of this land from Devisahai at the rate of Rs. 175 per marla. Thus, he became the owner of 17/20th of the land in a village. The remaining 3/20th share of the land belonged to Pindidas, who was the Karta, that is, the manager of the Hindu joint family and his brothers Haveliram, Khemchand and Satyapal were coparceners of the Hindu joint family. With the intention of consolidating his estate, the plaintiff wanted to acquire the respondents’ share, that is, of Pindidas and his brothers. Therefore, he went to Pindidas and the latter consented to sell the 3/20th share of the joint family property for the price of Rs. 250 per Marla, which was significantly higher than the previous purchase price. Consequently, on October 1, 1945, a contract was entered into between both parties regarding the said transaction and Pindidas received Rs 100 as earnest money from the plaintiff. The parties went ahead to consummate the transaction through the sale deed. However, the respondent, Pindidas, failed to execute the sale deed in favour of the plaintiff. As Pindidas, Karta of the family, failed to give effect to the sale deed in the favour of Balmukand, the plaintiff, therefore, filed the suit of specific performance against Pindidas and his brothers.

The court of first instance and the High Court of Punjab and Haryana dismissed the plaintiff’s claim of specific performance of the contract. As a result, the plaintiff has filed an appeal with the Hon’ble Apex Court.

Issues raised

Whether the intended sale was advantageous to the Hindu joint family, and can the Karta of the family alienate property without the approval of other coparceners ?
Whether the plaintiff’s claim for specific performance of the sale deed should be allowed in the present appeal?

Arguments of the parties

Arguments of Petitioners

The plaintiff pleaded that it was undisputed that there was no urgent necessity for selling the joint family property as the respondents were wealthy individuals. Furthermore, the plaintiff argued that the intended sale was for the benefit of the family because the defendants could not practically use their fractional share of the said property under consideration and therefore, by selling that share, the family was positioned to gain.

He further mentioned that while the said property at the date of the agreement was worth Rs 175 per marla only, the plaintiff had agreed to purchase the same property for Rs. 250 per marla. Consequently, the family would benefit from the transaction by making an additional gain.

In addition, it was argued that the Karta of the joint Hindu family can exercise his power of alienation in all cases where every prudent owner of the property would alienate it for consideration if he regards it as sufficient and beneficial. This means his authority to alienate is not merely confined to defensive purposes.

Arguments of respondent

The suit was contested by all the defendants. The defendant, Pindidas, acknowledged vaguely the existence of a contract of sale for some land. He also admitted that the contract was made on October 1, 1945, and Rs. 100 was paid to him as earnest money. Nonetheless, he claimed that the contract was related to some other piece of land, not to the property disputed, that is, a share of joint Hindu family property.

Defendants 2 to 4 and, in the present case, respondents 13 to 15, denied the fact that the manager of the family agreed to sell the property on behalf of all. They also argued that even if Pindidas had been declared the Karta of the joint Hindu family and had consented to sell the share of the disputed property, the defendants were not bound by the contract of sale. Because the said contract was neither advantageous to the family nor was there any necessity for the sale.

Laws involved in Balmukand vs. Kamla Wati and Ors. (1964)

As per traditional Hindu law, the Hindu joint family is administered by the chief of the family, that is, Karta. As the head of a family, a Karta wields extensive authority in managing the affairs of the Hindu joint family. The role of Karta includes managing, maintaining and disposing of joint family property, as well as representing coparceners in legal matters.

Karta

Unlike the other Coparceners, Karta holds a pivotal position in the Hindu undivided family. His position is sui generis, which means “of its own kind.” The Karta has innumerable powers. However, his powers are not absolute but limited. The domain of his powers may be categorised under two distinct aspects:

the power to alienate the joint family property, limited to cases of necessity and benefit of estate and
other residual powers.

Under the first aspect, the power of the Karta is limited and qualified, but, within the scope of his sphere, he has vast powers unlike the other members of the family.

Alienation

Alienation means conveyance of property by way of gifts, sales, and mortgages. Under the Mitakshara school of Hindu law, the Karta or any other coparcener individually does not possess absolute authority over the joint family property or over his personal interests in the said property. However, under the Dayabhaga School, a coparcener has the right to alienate joint family property.

Karta’s power of alienation

Normally, no individual coparcener, including Karta, has the power to alienate the joint family property without the consent of other coparceners.

But there are exceptional cases where Karta can exercise his power of alienation without the consent of other coparceners.

As per Vijaneshwara, a Hindu Jurist and author of the Mitakshara, these are the following exceptional cases in which alienation of joint family property could be made by every member of the family:

Apatkale: in time of distress;
Kutumbarthe: for the sake of family; and
Dharamarthe: for the performance of indispensable duties.

But the formulation of Vijnaneshwaes has undergone modification in two aspects. Firstly, the power can be exercised only by the Karta of the family, not all the members of the family. Secondly, joint family property can be alienated only in the following exceptional cases:

Legal necessity
Benefits of estate
Acts of indispensable duty

Thus, Karta can alienate the joint family property without the consent of other members only in the above circumstances.

Legal necessity

There is no precise definition of the term legal necessity and it is argued that providing a specific definition is not feasible. Broadly, legal necessity will include all those things which are considered necessary and indispensable for all family members. Previously, it was stated that property belonging to a joint family could only be transferred at times of distress such as famine, epidemic, flood, earthquake, etc. however, it has been recognized under modern Hindu law that necessity is not confined to times of distress.

As in the case of Sri Krishna Das vs. Nathuram (1926), the court observed that if it is revealed that the family sold a property for fulfilling a need for a particular thing or article, and if the property was sold for fulfilling that need, then it would be regarded as a legal necessity for that purpose.

Benefit of estate

Generally, the benefit of an estate means something that is done for the common interest of all the members of the joint Hindu family. The Privy Council in the case of Palaniappa vs. Devsikmony (1917) has outlined situations like the preservation of the estate from destruction, the protection against litigation impacting it, preserving it from harm or deterioration by inundation, etc. that would fall under the benefit of the estate. In another case, the High Court opined that only that thing will be considered a ‘benefit of the estate’, which is defensive. It means a transaction done to prevent the property from imminent danger. In the case of Jagat Narain vs. Mathuradas (1928) the court laid down the test of the prudent owner. Therefore, it took the view that whatever a prudent person would do in respect of his own property for the direct benefit of the estate, the Karta can similarly do with respect to the joint family property. In the case of Nirmal vs. Satnam (1960), the Rajasthan High Court held that the Karta cannot liquidate the joint family property just because it is of no use without replacing it with more profitable property. But if the Karta’s power is limited to purely defensive acts, then there would be no progress and the family would stagnate.

Indispensable duties

It signifies the performance of religious, pious or charitable acts. This expression includes all indispensable duties like conducting the marriage of members of the joint family, especially daughters, though it is also covered under legal necessity. In Gangi Reddi vs. Tammi Reddi (1927), the Privy Council stated that the Karta can validly dedicate a fraction of the family property for religious and charitable purposes if the property allotted makes a smaller part of the total property of the family.

Burden of proof

It is well established that the burden of proving whether a transaction entered into by the manager or Karta of the family is within his authority or qualifies under exceptional circumstances such as legal necessity, the benefit of estate or indispensable duty is on the person who alienates , which means Karta has a burden of proof.

Relevant judgements referred to in the case

In support of his contentions, the plaintiff, Balmukand, relied on various decisions of different High courts.

In Jagat Narain vs. Mathura Das (1928), the High Court of Punjab and Haryana placed reliance on various decisions, including those in Hanooman Persaud Pandey vs. Babooee Munraj Koonweree (1856), 6 Moo.I.A. 393; Sahu Ram Chandra vs. Bhup Singh (1917) and Palaniappa Chetty vss. Sreemath Daivasikamony Pandra Sannadhi (1917). The court ruled that transactions justified by the rule of benefiting the estate are not confined to those that are defensive in nature.

According to the facts of this case, the managers of the family found it impractical and that retaining property is detrimental to the interests of the family. The management of the said property was not feasible. Therefore, they decided to sell that property and purchase a more easily accessible property elsewhere. It was considered that the transaction was beneficial for the family.

The next case is Sital Prasad Singh vs. Ajablal Mander (1939) In this case, the same test of prudential person was also applied, that is, whether, under usual circumstances, any judicious person would enter into an agreement to benefit the estate. The Patna High Court also determined that the term ‘benefit of the estate’ has a wider meaning than a mere pressing requirement and is not restricted to transactions of a defensive nature. Further, the court held that the Karta is a manager and not an absolute owner, and his powers are subject to certain restrictions. However, the Hindu law never meant to limit the authority of Karta, which would essentially preclude him from doing acts that are for the benefit of the family or to enhance the conditions of the family. The sole restriction that can be imposed upon him is that he must act with prudence. The meaning of Karta must be exercised cautiously rather than recklessly and arbitrarily.

In the matter of A.T. Vasudevan & Ors (1948), the court held that the Karta of the family has unqualified authority to alienate the Hindu joint family property if it is shown that it is advantageous for the family despite there being no legal necessity justifying the transaction.

Judgement in Balmukand vs. Kamla Wati and Ors. (1964)

Judgement of the Court of First Instance

The trial court found in favour of the Plaintiff, Balmukand, that Pindidas and the plaintiff had in fact entered into an agreement for the sale of a 3/20th share of the land that was owned by the joint family and also that Rs 100 was paid to the defendant as earnest money. However, the court decided that the family was not bound by the said contract as there was no legal necessity for the sale and the transaction was not benefiting the joint family. Therefore, the court dismissed the plaintiff’s claim of specific performance of the contract.

Judgement of the Punjab and Haryana High Court

Upon appeal, the High Court of Punjab and Haryana upheld the plaintiff’s claim for specific performance being dismissed and further ordered the defendants to reimburse the plaintiff for earnest money that he had paid at the time an agreement of sale was made between both parties.

Judgement of the Supreme Court of India

Aggrieved by the decisions of both lower Courts, the plaintiff filed a civil appeal before the Apex Court. After perusal of the facts of the case, the court held that:

For the transaction to be considered beneficial for the joint family, it need not compulsorily be of defensive nature. But what transactions would be regarded as beneficial for the family depends on the situation and context of each case. In each case, the court must be convinced, based on the evidence presented, that the transaction was expected to or did actually benefit the joint family.
Without the unanimous consent of all the family members of the joint Hindu family, the manager of the family is not allowed to part with the joint family property based on purported benefit to the family.
The court further noted that in this particular case, the appropriate pleas were not raised and sufficient evidence was not produced before the court. Therefore, the lower courts were right in refusing to order the specific performance in this case. Thereby, the appeal is dismissed.

Rationale behind this judgement

The Apex Court found that there is nothing in the plaint that shows that Pindidas agreed to sell the joint family property owing to difficulty in managing it or that the family was facing financial losses by continuing to hold the property. Moreover, there was no indication that the intention of the defendants was to invest the proceeds from the sale in a lucrative manner. The court also noted that there were no allegations made by the plaintiff suggesting that the sale was being considered for reasons of prudence, which is a key consideration in allowing the Karta to alienate the joint family property. It merely states that the family’s share is comparatively smaller than the plaintiff’s share in the land.

There is no indication that the family’s position varied due to the plaintiff owing the remaining 17/20th share of the land at the time of filing the suit. Therefore, even based on the decision taken by the Allahabad High Court in the case of Jagat Narain vs. Mathura Das (1928), the suit cannot be decreed in favour of the plaintiff.

As in the case of Sita Prasad Singh vs. Ajablal Mander, the court noted that if all the existing members of the joint family are of legal age, then the decision cannot be made by the manager alone; rather, all the members, including the manager, should take the decision.

The Apex Court applied this judgement in the present case and noted that the defendants 2 to 4, who were brothers of Pindidas, were of legal age at the time when the contract was made and there was no indication that all of them had consented to the transaction, were consulted about the same or even had knowledge of the transaction. Moreover, the court noted the fact that the members of the joint family had firmly opposed the claim for specific performance. They would not have opposed it if they were satisfied that the transaction was advantageous to the family. Further, the court said that the defendants were within their rights in resisting the contract entered into by the manager of the family. Therefore, the lower courts are right in dismissing the claim of the plaintiff for specific performance of the contract.

Analysis of the case

Balmukand vs. Kamla Wati and Ors. is a 1964 case and is a vital legal precedent that addresses the powers of the Karta within the Hindu joint family. In this case, the plaintiff sought to uphold the contract of sale entered between the parties on October 1, 1925, contending that it was beneficial for the joint Hindu family. The defendants, however, challenged the said contract on the ground of necessity and prudence, raising significant questions about the authority of the Karta and the criteria for justifying the transaction.

The Supreme Court ruled that the Karta’s authority to alienate the property is not only confined to defensive transactions but also for the benefit of the family. What transactions are considered for the benefit of the family must be assessed based on the specific circumstances of each case. The Apex Court acknowledged that a transaction could be regarded as beneficial if it resulted in financial gain or if retaining the property was impractical or disadvantageous to the family.

The Court broadened the criteria of what constitutes a beneficial transaction and thus bypassed traditional Hindu law. It allowed for more flexibility in the management of the property. This flexibility is essential in contemporary contexts where rigid traditional views may not align with the family’s best interests. Thus, this case contributes to the body of law by clarifying that the Karta’s authority to alienate property is not limited to situations of dire necessity. Rather, the transaction should overall benefit the family, which should be the guiding criterion.

Conclusion

This case serves as a landmark decision in the realm of Hindu joint family law with regard to the Karta’ power to alienate joint Hindu family property. The court concluded that the karta’s power is not restricted solely to situations of legal necessity. Rather, transactions that are beneficial for the family, considering the specific facts and circumstances, are also equally valid. This broader interpretation by the court allows for more flexible and practical management of the property, ensuring that decisions made by Karta can adapt to contemporary contexts. The court in this case reaffirmed that Karta can transfer the family’s property only for their benefit and if the members are of legal age, then he cannot alienate without the consent of all the members. The ruling emphasises the importance of evaluating each case individually and balancing traditional legal principles with contemporary family dynamics.

Frequently Asked Questions (FAQs)

For what purpose can Karta alienate joint family property?

As per old Hindu law, Karta has no absolute authority to alienate the joint family property. He is not allowed to alienate the property without the consent of other members of the joint Hindu family. But in certain cases, Karta is allowed to do so. For example:

To meet essential and urgent needs of the family, like paying off family debts, covering marriage expenses, financing education, etc.
He can transact for the benefit of the family. For example, generating financial gain, avoiding impracticalities or losses associated with retaining property or investing in more profitable ventures.
As a prudent owner, he thinks that alienation is worthy of adequate consideration and reflects good management practices.

What does ‘legal necessity’ mean in context of this case?

Legal necessity has no precise definition. Generally, it refers to situations where the head of the family is justified in selling the property belonging to the joint family. There are some instances of legal necessity :

Basic necessities like food, housing and clothing for the members of the joint family.
Marriage of all the members of the family, including daughters. However, the second marriage of a member of the family is not a legal necessity. Also, the marriage of a granddaughter, when the daughter is not, is not a legal necessity.
Medical care of the whole family.
For payment of rent, etc.

The above enumeration of cases of legal necessity is inclusive.

What criteria did the court use to determine whether the sale was beneficial?

The court laid down the criteria that for the transaction to be beneficial, it must provide financial gain or resolve impracticalities associated with the family’s fractional share in the property. It does not necessarily have a defensive nature, which means preventing the property from being in imminent danger.

What is the basic difference between the terms ‘legal necessity ‘ and ‘benefit of estate’?

Legal necessity refers to the circumstances where Karta must alienate the property of the joint family to fulfil the urgent and essential needs of the family. It is typically a reactive measure undertaken to address immediate needs under compulsion. In the case of Rani and Anr. vs. Santa Bala Debnath and Ors. (1970), the Supreme Court ruled that legal necessity does not mean actual compulsion but rather the pressure upon the estate, which the law considers sufficient and serious.

On the contrary, the benefit of the estate refers to transactions that are undertaken because they are advantageous for the joint family but not immediately necessary, unlike in the case of legal necessity. It is a proactive measure, aimed at enhancing the wealth of the family.

What are the circumstances that would be covered under the Benefit of the estate?

Following are the instances that could be covered under the expression ‘benefit of estate’. These are only illustrative, not exhaustive.

Selling unproductive or loss- making property to invest in more profitable ventures.
Consolidating fragmented property holdings for better management.
Improving the financial status of the family through profitable sales or investments.
Selling property when it is not feasible to manage property because of its geographical location.

Was Pindidas liable for specific performance regarding his interest in the joint family property?

The court found that undoubtedly, as per Section 15 of the Specific Relief Act of 1877 ( corresponding to Section 12 of the Specific Relief Act of 1963), Pindidas was personally liable for the performance of his part of the contract that was made by the parties to the dispute. Therefore, the plaintiff could claim relief for partial performance of the contract. However, the court noted that plaintiff did not assert the fact that he is willing to pay the whole amount of consideration for obtaining a decree of part performance against the interest of Pindidas alone. Therefore, the plaintiff did not get any relief from the court of law.

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McCulloch vs. Maryland (1819)

By

Rachit Garg

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July 9, 2024

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This article is written by Charu Kohli. The article deals with the case of McCulloch v. Maryland (1819) wherein the struggle for power control between the States and the Federal Government of the United States of America is underlined. To understand the principle of the Proper and Necessary Clause present in the law of the land, dive deep into the article.

Introduction

The case of McCulloch vs. Maryland (1819) is a landmark judgement of the United States that helped establish the relationship between the state and the federal government while also defining this relationship in great detail. It is deemed to be the case that culminates within itself one of the earliest controversies in establishing the defined lines of the power struggle between the centre and the state.

The case highlights the nature of banks established by the Centre and the rule of taxation over them. It further centres on the question of power dynamics between the two entities that are the centre or federal unit and independent states in the federal structure of the United States of America. The case at hand gave the answers to grave questions like the power of Congress to establish a bank at the national level and whether such a bank can have a tax imposed on it by another state.

Details of the case

Case Name: James McCulloch vs. The State of Maryland, John James
Case No.: 17 U.S. 316 (1819)
Equivalent Citations: McCulloch vs. Maryland Decision; 3/ 6 /1819; Engrossed Minutes, 2/1790 – 6/ 7 /1954, DC, 17 U.S. 316 4 Wheat. 316; 4 L. Ed. 579; 1819 U.S. LEXIS 320; 4 A.F.T.R. (P-H) 4491; 42 Cont. Cas. Fed. (CCH) ¶ 77,296Records of the Supreme Court of the United States, Record Group 267; National Archives Building, Washington
Acts Involved: The Constitution of the United States of America
Important Provisions: Article 1 Section 8- Necessary and Possible Clause
Court: Supreme Court of United States of America
Bench: Chief Justice of Supreme Court John Marshall, Associate Justice Bushrod Washington, Associate Justice William Johnson H. Brockholst Livingston, Associate Justice Thomas Todd Gabriel Duvall and Associate Justice Joseph Story
Petitioner: James W. McCulloch
Respondent: John James
Judgement: Unanimous decision on March 6, 1819

History of McCulloch vs. Maryland (1819)

The case revolves around the proposal made by the Secretary of the Treasury in Washington, Mr. Alexander Hamilton, in the first year of his tenure. The proposal laid out by Hamilton talked about the need for a Second Bank of the United States of America, as the first one had ended as per its charter. The objective of the proposal was to ensure that the after-effects of the 1812 war on the economy could be dealt with and the money could be brought into circulation once again. This proposal got serious consideration from various members and officials.

Later, this proposal was taken up by the Congress, which discussed it in great detail as to whether the authority to create a nationalised bank lies within their ambit or not. This idea of Hamilton was based on the plan of nation and economy-building by paying off the debt that was incurred due to the Revolutionary War. It was to be achieved by the creation of national banks, which would help the government to not only raise taxes at the central level but also pay off the debts, make the payments that were still due, and also hand out short-term loans so as to bring the economy into motion.

The proposal detailed the creation of a national bank by the Congress and turning it into a corporation, which would be bestowed with certain benefits to exercise its authority by the Congress itself in the year 1816. Congress later accepted the notion, and after discussing the matter with various cabinet ministers, President Washington eventually signed the Bill. However, the Attorney General of the time, Mr. Edmund Randolph, and the Secretary of State, Mr. Thomas Jefferson, believed it to be an unconstitutional act of Congress and did not support the motion for the creation of the nationalised bank. They were of the view that the power to create banks at the national level was not ascertained by the Constitution and, therefore, felt this plan was violating the basic framework of the nation itself.

However, the First National Bank of the United States was established in 1817 with its headquarters in Philadelphia, as the motion had received majority support from the Congress and the President had assented to the bill. Further, the federal bank started establishing various branches in several states of the USA and one such branch was established in the Baltimore area of Maryland.

Importance of the case

The Supreme Court of the USA, in its ruling in the case of McCulloch vs. Maryland, underscored a fundamental principle of American federalism. It states that there exists a supremacy of federal law over state laws when there is a conflict between the two of them. Chief Justice John Marshall, while delivering the unanimous judgement of the case, asserted that the powers granted to Congress are derived from the citizens of the United States of America and not the individual states. The case, in simple words, established that the sovereignty of the state cannot supersede the authority of the federal entity, i.e., the National Bank of America. This landmark judgement by the Apex Court of the nation solidified the balance of power between the centre and the state and ruled heavily in favour of the federal government of the state. This decision changed the course of the narration and was in contrast with rulings that leans more towards the rights of the State over the federal entity, like in the case of United States vs. Lopez (1995). The case of McCulloch vs. Maryland has since served as a pivotal precedent that helps the judiciary guide subsequent judicial interpretations. It has helped establish not only the rule of the federal-state power dynamic or the flow of power between the two entities but also talked about how the two influence each other and how the conflicts between state and federal laws are resolved in American jurisprudence.

Facts of McCulloch vs. Maryland (1819)

In the month of May of 1818, there was a lot of hostility towards the national bank by a number of states because of the economic panic in society. Due to the competition between the state and the national banks and the piling up of unpaid loans, the states started levying taxes on the Federal Bank. In the same year, the state of Maryland passed an act imposing a $15,000 tax on non-state banks. This tax was to be paid annually by all the banks that were operating in the state but were out-of-state banks. The term ‘out-of-state banks’ refers to those banks that were incorporated in any other state apart from the state of operation and the banks whose charter as well as headquarters are based in another state.

The act, which appeared to be neutral at the forefront, actually targeted the National Bank of the United States of America only since it was the only out-of-state bank in Maryland at that time. That was when the cashier named James McCulloh of the Baltimore Branch of the bank refused to pay as had been levied by the State. Therefore, the Maryland state went ahead and filed a case against James McCulloh to get their dues recovered. The case was therefore filed by Maryland in the State Court in order to get the taxes paid.

Maryland won the case in both the State Trial Court and the High Court. Both courts directed James McCulloh to pay the taxes as per the directions of the state of Maryland. However, the cashier at the Baltimore branch, Mr. McCulloh, filed an appeal petition requesting review of the decision by the High Court and the Supreme Court of the United States of America.

Issues raised

Does the State of Maryland have the power to levy taxes on the National Bank, Baltimore branch of the United States of America, which was established by Congress in the year 1818?
Whether the federal unit has the constitutional power to create the National Bank or not?
Whether this National Bank can be taxed by the state government or not?

Principles and concepts involved in McCulloch vs. Maryland (1819)

Principle of Necessary and Proper Clause

The principle of power that was used by the Congress to initiate the procedure of incorporating a national bank and further establishing one was the principle of the Necessary and Proper Clause. This clause is situated as the 18th clause under the Constitution of the United States under Article 1, Section 8. It further states that the Congress, i.e., the elected body of representatives by the citizens of the nation, has the power to make any and all such laws as may be necessary.

The laws which can be created are those that are necessary, proper and needed by the Congress to carry out the execution of their pre-established powers, which include the listed powers as well as the ones that are vested by the basic framework of the nation. In simple terms, it means that the Congress has the right to make any law that is a requisite in order for them, any state, or any office under them to exercise the powers already vested in the Constitution of the United States. In other words, if the Constitution does not prohibit any sort of power and the spirit of the Constitution is upheld in the question of law, then the law made will be deemed to be applied and it will stand.

However, such power authorised and laws made should be of a necessary and proper nature, as the name of the principle also suggests. This clause allows the Congress to make laws that can help them execute and efficiently carry out the execution of the power.

Power to tax can be the power to destroy

The Chief Justice of the Supreme Court of the USA gave the statement that the ‘power to tax can be the power to destroy’ and by this, he meant that the power of the states of the USA to levy a tax on a federally created entity like the national bank might destroy the federal entity itself. Chief Justice John Marshall basically stated that there is no right to claim by the states as they cannot destroy the federal entity or override the entity created by the centre.

Federal law over state law

In the United States of America, the principle that federal law takes precedence over state law as in centre over state is enshrined in the Supremacy Clause of the U.S. Constitution, found in Article 4, Section 2 of the Constitution. The clause states that the Constitution, along with federal laws and treaties, constitutes the “supreme law of the land.” Essentially, this means that when federal laws are in direct conflict, federal law takes precedence over conflicting state laws and supersedes state laws.

The Supremacy Clause provides the legal basis for ensuring the uniform and consistent application of federal law across all states and the provision allows for rule by the representatives of all the states who have a position in the centre. It lays down the law that state governments may not enact laws that contradict or interfere with federal laws, policies, or constitutional provisions of the United States of America. This principle is critical to maintaining a consistent national legal framework and preserving the federal government’s authority in areas where it has constitutional power, such as trade, immigration, and defence.

Courts play a key role in interpreting and applying the Supremacy Clause, as was done by Justice Marshall in the case. When conflicts arise between federal and state laws, courts typically resolve them by invalidating state laws that conflict with federal or constitutional provisions since the state only talks about their individual interests, whereas the centre or federal unit talks about the smooth functioning of the whole nation and its citizens. This mechanism ensures that federal law continues to prevail in areas where the federal government has jurisdiction, while states can continue to legislate in areas where the federal government has not explicitly reserved power as per the lists in the US Constitution.

Overall, the Supremacy Clause emphasises the hierarchical relationship between federal and state law by ensuring the primacy of federal power while respecting the autonomy of states within their constitutional spheres of influence.

Contentions raised

Petitioner’s contentions

Section 8 of Article 1 of the Constitution of the United States of America clearly states-

“The Congress shall have the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.“

The power of the Congress to create a national bank therefore falls under the category of the ‘proper and necessary clause’, whereby it states that the Congress can do any act or create any law or rule in order to execute the function as per the Constitution of the United States. The term necessary here has been contended to refer to anything that is convenient or even useful to follow up on the express powers of the Congress and the term proper means that such a power should be in accordance with the Constitution and should not overpower it.

The petitioner stated that the bank, once established as a nationalised bank, carries a lot of execution powers, namely taxation and commerce powers, which is why the Bill for the same was adopted by Congress.

Appellant’s contentions

Maryland contended that there is no federal power with the Centre to create a national bank. The power is not given in the Constitution and therefore, it does not exist. So the question of taxation imposed by the state on the bank is of an unproblematic nature since it is the right of the state to levy such a tax on corporate bodies functioning in their jurisdiction.

They further argued that the phrase of the principle ‘necessary and proper’ holds two words necessary as well as proper, which means that the Congress is authorised to make those laws that are absolutely necessary to carry out the express powers as mentioned by the Constitution.

Here, the creation of a national bank was deemed not necessary or even proper by Maryland; they contested that the clause, therefore, should not be applied in his case. They believed that the creation of a National Bank would lead to effectuate power, which authorised the bank to do almost anything and that is a problem in the commerce sector.

Judgement in McCulloch vs. Maryland (1819)

Chief Justice John Marshall was of the view that the bank established by the centre was constitutionally formed. He gave the judgement that the Congress had the power and they possessed the authority to go forth and create a national bank in the state. Further, the judgement stated that the states do not possess any authority to levy any sort of tax on the national bank since it is a federal entity.

Justice Marshall, while observing the question of the power of Congress, clearly stated, “In considering this question, then, we must never forget that it is a Constitution we are expounding.” Mr. Marshall held that the creation of the bank was well within the Necessary and Proper Clause Principle, which was used by Congress to support their arguments. He authored the unanimous decision wherein he acknowledged that the scope of the federal government’s power is limited to what is written by word in the Constitution of the land. However, the Constitution itself has also guaranteed them the power to go beyond what is written with black ink in times of need. The judgement clearly stated that Congress has not only enumerated powers but implied powers as well in order to maintain the smooth functioning of the State and its citizens. Marshall states that when the Constitution authorises a specific objective, Congress should also be granted implied means to achieve that objective. He used the Necessary and Proper Clause as a principle in order to support his argument, which says that Congress can make all laws necessary and proper for executing its enumerated powers.

Justice Marshall did not agree with the interpretation of the term ‘necessary and proper’ as defined by Maryland, but rather applied the interpretation of the petitioner. He stated that the term necessary and proper is meant to state something that is needed and required for the performance and execution of any duty by Congress in relation to the law of the land.

He also held that the federal bank, as created by Congress, is necessary and useful for distributing as well as raising money under Article 1, Section 8. This will lead to Congress being able to collect taxes, and expenditures for public welfare, borrow money on credit by the United States, regulate commerce with foreign nations and between states, and raise armies with the help of the Federal Bank structure.

Moreover, on the question of whether taxation can be levied on the Federal Bank, Justice Marshall held two principles in relation to the United States of America, ‘the power to tax involves the power to destroy’ as well as ‘federal laws are supreme over the laws of the state’. He further held that the power given by the Constitution gave power to the people not the state and it was always the people and the citizens of the United States of America who were superior and since the representation of the people was the Congress in the Center, the superiority was held directly by the Congress and not the State. This meant that the state and its laws cannot be superior to an institution or entity that is federally created. It held that it would be inappropriate for the national bank, which was created in order to serve the nation entirely, to just be subjected to the taxation laws of a single state like Maryland.

Analysis of the case

The Hon’ble Supreme Court of the United States of America reversed the judgement that was delivered by the High Court of Maryland. This judgement gave the Congress the implied power to implement the express constitutional power so as to have a smooth functioning state. The principle of, “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional” was upheld in the case.

Further, the Hon’ble Court held that even though the power of the Congress does not extend to the creation of a national bank or to the chartering of a national bank since these powers are not enumerated in Article 1, Section 8 of the Constitution of the United States of America, clause number 18, which talks about the Necessary and Proper Clause principle, is to be held as important. Here, it provides the federal government with the power to even make laws that are allowed, that are necessary, and those that are proper in order to execute any law by them. For example, the act of borrowing money or issuing currency led them to give way to the creation of the bank at the national level as a means to an end.

The judgement by the Chief Justice is based on the 1790’s argument of Hamilton, who was of the view that the Congress, as the federal power body, can derive its power from the Necessary and Proper Clause. The view was that the power of the Congress does not always need to be derived directly from the Constitution; rather, sometimes it can be inferred or even derived from the basic framework of the law of the land.

This opinion was upheld in the case; however, the State of Maryland was following the Jeffersonian approach. It stated that the measure as adopted by the federal entity must be of such nature that it is indispensable and absolutely necessary; otherwise, it will not be revered as constitutional.

Aftermath of the case

This landmark judgement has expanded the concept of federal supremacy and held that the centre has the power to establish National Banks for the welfare of the community at large. The judgement of the Hon’ble Court also led to the states not being able to impose any tax on the nationalised bank. This resulted in the federal government having the power to rule the nation as a whole without being subjected to state limitations and laws.

However, while the decision greatly expanded federal power, it also affirmed limits on that power by stating that the federal government can only act within its enumerated powers and those necessary to execute them. They categorised as to what is necessary and proper should only be applied in the realm of federal power and prohibited the federal government from acting arbitrarily. Further, this precedent has given way to a lot of landmark judgements and one such case is Gibbons vs. Odgen (1824), whichwasn built upon the observations of the case at hand.

Conclusion

Many academicians have tried to analyse the judgement and the conclusion came that there are 3 positions on the power of Congress that are not written in the Constitution of the United States of America and they are:

The Hamilton View, which is sometimes deemed to be the liberal view. This view basically states that the new law made or rule established must be a matter of expediency or convenience. This allows Congress to do as it wishes for the smooth functioning of the state at large.
The Jefferson view, which in this case aligns with the Maryland State, upholds that for a law or rule to be deemed constitutional, it must be a requisite by Congress or any office under them. Such a rule must be indispensable, logical and necessary for the proper functioning of the Federal Unit.
The third position is that of in-between which is now mostly used in the State. It upholds that a law to be deemed accepted in society must be more than just a matter of convenience for the centre and rather should be necessary and proper in nature.

In this landmark case of McCulloch vs. Maryland, the Supreme Court of the United States has not only recognised the federal government’s superiority over state laws but also upheld the necessary and proper clause that acted as a significant precursor to the American Constitution. Chief Justice John Marshall’s opinion stated that the federal government’s powers are implied and need to be executed by the Constitution’s enumerated powers, which include the power to create a national bank. By rejecting the attempt by Maryland to tax the Second Bank of the United States, the Court demonstrated the superiority of federal laws over local laws and maintained the integrity of national institutions. This important decision not only defined the distinction between federal and state authority but also created a mechanism that would be used by subsequent courts to maintain a proportional system of power. McCulloch vs. Maryland continues to be a foundation of American law, its rulings have influenced the interpretation of federalism and have demonstrated the crucial role of the federal government in the country’s government.

Frequently Asked Questions (FAQs)

Who was Chief Justice John Marshall of the Supreme Court of the United States of America?

Chief Justice John Marshall authored the judgement in the case of McCulloch vs. Maryland (1819). Before stepping into the legal arena, he was a Marshall in the Revolutionary War. During his time in the military, John associated himself with the American identity first and then with the identity of his state, which was Virginia.

What is the federal form of government in the United States of America?

The United States of America has a federal form of government with a power division between the centre, i.e., the national government and the independent states. Here, the powers are divided between the centre and state as per the lists and the tenth schedule of the Constitution. The demarcation of power allows the states to remain independent at the bottom level and take their own decisions, and the centre here is empowered to regulate the workings between the states.

References

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Types of divorce (talaq) in Muslim Law

By

Rachit Garg

-

July 9, 2024

0

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

This article is written by Shreya Patel. This article covers the concept of marriage and divorce under Muslim Law in India. The article emphasises on the meaning of marriage and divorce under Muslim law, the essentials of Muslim marriage, the different types of divorce in Muslim law and the valid conditions for a divorce (talaq) under Muslim law. This article also discusses many landmark cases on various types of divorce in Muslim law in India.

Table of Contents

Introduction

Marriage and divorce have been integral parts of the ancient stance of Muslim law. The notion of divorces and marriages also holds a historical perspective among Muslims. There are four main sources for the development of Muslim personal laws which are:

the Quran (which is the holy book),
Ijma (consensus),
Sunna (precedent) and
the Qiyas (analogical deductions).

In these four main sources, the Quran is the primary source of the development of Muslim personal laws. All these sources hold great importance and are considered sacred in the Muslim religion. As per the Muslims, these sources are unchangeable.

Marriage is often considered as a social requirement that balances social life by creating some types of obligations and rights that both partners have to oblige to. Women in pre-Islamic Arabia were considered objects and their conditions were miserable and pitiable. During this period, buying and selling of women, marrying real sisters at the time, polygamy, divorcing the wives freely, temporary marriages etc. was very common and prevalent. The status of women in Muslim society only became better after the emergence of the laws made by Prophet Muhammad. Earlier, people were irresponsible towards Muslim women. Despite this, there are many concepts/notions that were followed which were patriarchal in nature, such as polygamy or considering women inferior to men in the aspects of intellectual dominance, masculinity, etc. The laws for Muslim marriages and divorces are shaped by the customs, precedents, legislations and thoughts that were prevalent in the old time.

The Muslims are divided into different sects and have different schools, which also lead to various forms of divorce and marriage. Muslims accept different types of divorces and marriages. The different types of marriages in Muslim religion are Sahih marriage (valid marriage), Muta marriage (temporary marriage), Batil marriage (void marriage), etc. In Muslim marriages, there is always the presence of an offer and the acceptance of that offer, as by nature, a Muslim marriage is considered a civil contract.

The Muslim marriage can be ended by using two means, which are talaq and divorce. Both words are often used as synonyms for the same in the day to day conversation, but both have different meanings when it comes to legal implications. If a divorce is sought by some person, then they are subjected to the provisions of the Dissolution of Muslim Marriage Act, 1939. This Act is a legal structure that governs the process of dissolution of marriage as per Muslim personal laws, while the talaq is governed by laws that are traditional in nature. The rules and regulation for divorce between a muslim couple are outlined under the jurisprudence of Islam. Through ‘Mubarat’ or ‘Khula’, a Muslim marriage can be dissolved with mutual consent. There are various legislations that provide rules and regulations for divorce such as Muslim Women (Protection of Rights on Marriage) Act, 2019, Dissolution of Muslim Marriage Act, 1939 and Muslim Women (Protection of Rights on Divorce) Act, 1986.

Marriage under Muslim Law

Sunnis and Shias are the two main sects in which Muslims are divided. The four main schools of Muslim law are Hanafi, Maliki, Hanabali and Shafi. The Hanafi school is the most prevalent school of thought in India as compared to other schools. As per Ameer Ali, who was a scholar of Islam and a social and political reformer for the protection of society, marriage was considered very significant. The concept of celibacy is not followed in Islam. As per the Muslim religion, marriage is part of the social structure. In order to validate an intimate relationship and to give the status of legitimacy to the children born as the result of the intimate relationship between a woman and a man, marriage is a solemn declaration.

Nature of marriage under Muslim Law

Muslims consider marriage a civil contract. Two parties enter into an agreement with their free consent. There is an offer made by one party that is accepted by the other party, and the rights of the wife and husband are given to them. The husband has more rights as compared to the wife when it comes to the dissolution of marriage. Women are considered inferior and, hence, have fewer rights than men due to the existence of the patriarchal notion.

The Allahabad High Court, in the case of Abdul Kadir vs. Salima (1886), stated that Muslim marriages are very similar to civil contracts. As civil contracts and Muslim marriages have an offer made by one party, acceptance is to be made by the other. There should be free consent at the time of offer and acceptance, and no coercion, fraud or any undue influence should be present in either the offer or the acceptance.

In the landmark case of Anis Begum vs. Muhammad Istafa (1993), the Chief Justice of Allahabad High Court has given a more balanced view that marriage is both a religious sacrament and a civil contract under Muslim law, ending the debate on the nature of the marriage, as there was constant disagreement and debate about whether marriage was only considered a civil contract or merely a religious sacrament.

Essentials of marriage under Muslim Law

Capacity to marry

In order to be eligible for marriage, a person must have reached puberty and be of sound mind as per the Quran. The man’s puberty is considered to be fifteen years old, as per Muslim law. In the event of dower, divorce or marriage, the Indian Majority Act, 1875, is not applicable to Muslim religion. The Prohibition of Child Marriage Act, 2006, on the other hand, is applicable to all religions and is secular in nature.

Offer and acceptance

The next essential for a valid marriage is the presence of an offer, i.e., ijab and acceptance, i.e., qubul. The offer and the acceptance have to be made in one meeting only. The acceptance should be after the offer has been made. The offer and acceptance should be within a particular time frame that is prescribed for the offer to be accepted.

Consent of the parties

There should be no undue influence, ill-will, coercion or fraud at the time of offer and acceptance. Both parties must agree to marry with mutual consent.

Mehr

In Muslim marriage, the wife has to pay a consideration at the time of marriage. This type of consideration is formally referred to as ‘Mehr’. This consideration acts as a mark of respect by the husband for his wife. Mehr is one of the crucial aspects of a Muslim marriage. A marriage will not be considered valid without mehr.

No legal impediment

No legal impediment should be present. If any hindrances are found, the marriage will not be considered valid. Hindrances like those mentioned below should not be present:

Absolute impediment

Consanguinity (marriage between people who share blood relations is prohibited), a marriage between a Muslim male and his grandmother, daughter, mother, niece, aunt, or granddaughter cannot take place.
Affinity (prevents the man from marrying all relations of women with whom he is married.
Fosterage (prevention of relationship with foster relatives).

Relative impediments

Unlawful conjugation
Polygamy
Lack/Absence of proper witnesses

When an idda or iddat is not yet completed by a woman (the woman has to undergo an idda/iddat period after the divorce is pronounced), the death of the husband has taken place. This iddat period helps in avoiding the confusion of paternity related issues if the wife is pregnant. A period of three lunar months is to be observed as the iddat period for the women who are non-menstruating. An iddat period of three menstruation courses is to be observed by a woman who is menstruating.
Marriage with an individual who is not Muslim

	Marriage with Non-Muslim	Shia Law	Sunni Law
Woman	Not valid	Void	Irregular
Man	Not valid	Void	Irregular

Types of marriages under Muslim Law

Temporary marriage (Muta marriage)

Muta marriage is also known as pleasure marriage or temporary marriage. This kind of marriage is followed and practised by the Ithna Ashari, who belong to the Shia sect. Muta marriage is not practised by other Muslim sects. An Ithna male can marry as many wives as he wants. The women can be Jewish, Muslim or a fire worshipper. On the contrary, Muslim women are allowed to marry only Muslims. All the terms and conditions have to be mentioned when the couple is entering into the contract of marriage, also known as ‘nikah nama’. Any terms cannot be entered afterwards and will be considered invalid.

Following are the characteristics of Muta marriage (temporary marriage):

A contract must exist that the marriage is temporary in nature.
The presence of an offer and acceptance must be there by the parties.
The specifications related to dower must be made.
The duration for which the marriage is to be continued must be mentioned in detail. If there is no such specification, then the marriage is considered permanent in nature.
The rights to mutual inheritance are not given to the parties.
The maintenance to the wife is only liable if there is any specification about the same in the contract of marriage.
The wife will be entitled to dower in full if the consummation of marriage has taken place and if the marriage is not consummated, then the wife is entitled to only half dower.
The wife will also have to observe iddat period if the consummation of marriage has taken place.
The right to refuse procreation is with the husband; the permission of the wife is not required.
The right to inherit the property of both parents is given to the offspring. The offspring have to be legitimate.
The temporary marriage ends when mentioned in the contract, unless any extension is made. The extension has to be mentioned in the marriage contract.

Sahih (valid) marriage

A marriage is considered a Sahih marriage when all the required and mandatory legal formalities are fulfilled. Both the Sunni and Shia accept this type of marriage.

Following are the characteristics of sahih marriage (permanent marriage):

The parties are legally recorded as partners and obtain the status of wife and husband.
The right to inheritance is mutual between the marriage parties. The wife has the right to maintenance under Section 125 of the Code of Criminal Procedure, 1973 for both her children and herself.
The husband cannot marry the sister of the wife after the marriage is dissolved due to the death of the wife, divorce between the parties, etc.
All the essential conditions are followed in this kind of Muslim marriage.
The children conceived out of this kind of marriage have a legitimate status.
The parties in marriage can add other conditions as per their convenience in the contract of marriage. These terms and conditions should not be against public morals and public policy as per Muslim laws and society.
Under the Sunni sect, the acceptance as well as the proposal must take place in presence of 2 male witnesses and in one meeting only. It can also be two females and one male. For the Shia sect, the presence of witnesses is not a requirement.

Batil (void) marriage

A marriage is a batil marriage when all the essential conditions that are absolute in nature or impediments that are relative are not performed at the time of the Muslim marriage. This marriage is also known as a void marriage. For a marriage to be valid, the parties should have the capacity to enter into the marriage contract. In batil marriages, there is a lack of capacity; hence, the marriage is regarded as void. The Sunnis and Shias both accept this kind of marriage.

A marriage is considered void on the basis of many reasons. A marriage between the parties that share a prohibited relationship (for instance, a blood relative) is void. A marriage is also a batil marriage if it takes place between parties that are related by affinity to each other. For example, an aunt or sister. As per Shia law, if marriage takes place during the iddat period, then it is also a void marriage.

Following are the characteristics of a batil marriage (void marriage):

As this marriage is a void marriage, no legal rights or duties arise from it.
The parties do not confirm their status as husband and wife.
As the marriage is not considered valid, the children that are born out of this wedlock are considered illegitimate in nature.
The offence of bigamy or polygamy is not committed if the parties enter into other marriages, as the marriage is void in nature. The parties are free to enter into other valid marriages.

Fasid (irregular) marriage

When a relative impediment is violated and a marriage takes place, this is known as a fasid or irregular marriage. This type of marriage is neither void nor valid by nature. This type of marriage can be converted into a valid marriage by removing the irregularity. Both Sunnis and Shias accept this type of marriage, except the Ithna Ashari school of the Shia sect.

Following are the characteristics of fasid marriage (irregular marriage):

If the parties that are in a fasid marriage want to dissolve the marriage, then they will have to terminate the marriage by using legal procedures (judicial proceedings).
The right to maintenance is to be given to both children and wives.
A confirmation by both parties that the marriage has taken place is needed for the marriage to become effective.
The right to terminate the marriage is with both wife and husband at any time.
If the death of the husband takes place or divorce happens, then the iddat period is to be observed by the wife.
The right to inheritance is given to the kids that are born out of this wedlock and are considered legitimate.
The mutual right of inheritance is not with the husband and wife.

Divorce under Muslim Law

During the time of pre-Islamic Arabs, the husbands possessed unlimited powers of divorce. The husbands could at any time have the right to divorce their wives without giving any reasons for doing so. The divorce could also be revoked by the husbands as per their preference and as many times as the husband wanted. The husband, when still living with the wife, can make a promise that he will not enter into any sexual relations with her.

The divorce provisions are acknowledged by all religions. Islam is one of the first religions to expressively recognize the dissolution of marriage. The concept of divorce was introduced in England only around a hundred years ago, while Muslims have been practising talaq earlier than this period.

The Urdu word for divorce is ‘talaq’. There are a set of predetermined special rights where the husband can take action and enunciate his intent to divorce. The process of legally dissolving the marriage between husband and wife is referred to as divorce. The process of divorce mainly depends on the sects (Shia or Sunni) that the couple belongs to. Islam also uses the way of divorce to end the marital life between the couple.

The concept of divorce in Islam is very different from that in Hindu marriages. Marriage is considered a contract in Muslim law. Divorce for the Muslim couple is governed by their personal laws. A dissolution of marriage takes place by divorce or when the husband or wife’s death takes place. Marriages are considered a civil contract, and divorce means ending the civil contract, which entails that consent is also equally important in cases of divorce as it is in marriage. As per the personal laws, the parties involved in a marriage can, at any time, back away from the marriage through the means of talaq. The wife, under Muslim law, cannot, on their own accord, divorce their husband.

The right to divorce is given to the Muslim wife only when the husband gives the right himself or through a mutual agreement between the husband and wife. This mutual agreement is known as ‘Mubarat’. Nevertheless, the legislation has now provided Muslim women with statutory rights to give divorce to their husbands. This right is extended under the Dissolution of Muslim Marriages Act, 1939. Before the Act came into existence, there were no rights under which a Muslim wife could seek a divorce from her husband. Only in the case of false charges of impotency, adultery and insanity could the Muslim wife seek divorce. Many crucial grounds in relation to the basis that can be used by the Muslim wife to seek divorce and get her marriage dissolved with a court order were introduced in the Act. The modern concept of divorce by mutual consent is now present in Islam, which is also very famously known as the break down theory of divorce.

In the case of Musst. Rebun Nessa vs. Musstt. Bibi Ayesha & others (2011), the Gauhati High Court stated that, as per the holy book of the Quran, there should be a reasonable cause for talaq. The couple must try to reconcile first using arbitration, where two arbitrators, one from each side of the family along with the couple, try to resolve their problems. Only if the attempt at reconciliation fails should the couple move ahead with the talaq. Divorce between the married couple cannot take place due to small issues that can be solved through discussion. Only when grave matters are in question should the option of talaq be used by the married couple.

Conditions for a valid divorce in Muslim Law

There are some conditions that must be fulfilled for a valid divorce under Muslim law. These conditions differ as per Shia and Sunni laws. However, two main important conditions that are common are free consent and capacity.

Free consent

Free consent is one of the most important conditions that are required for a valid divorce. The husband’s consent must be free at the time of pronouncing the divorce. The only exception is seen in Hanafi law, where divorce is pronounced under undue influence; coercion, fraud, compulsion, intoxication, which is voluntary in nature, etc. are valid for dissolving the marriage.

Capacity

The Muslim husband must have the capacity to pronounce a divorce. The Muslim husband who has attained the age of puberty and is of sound mind can, without any reason/ cause, pronounce a divorce. If the husband is of unsound mind, then the guardian, on behalf of the unsound husband, can pronounce a talaq. The divorce should be pronounced in such a condition only if it is in the interest of the Muslim husband. The judge or kazi, also has the right to dissolve the marriage on behalf of the Muslim husband if there is no guardian who can take these kinds of decisions for the husband.

Express words

The intention of dissolving the marriage must be expressly and clearly indicated by the husband. The divorce should be pronounced in express words. The need to have proof or any evidence of divorce, the motive of the husband and his intention is not necessary if the talaq is in express words. When there is a clear utilisation of the word talaq, the husband cannot deny in any way that he has no intention of dissolving the marriage. The intention to dissolve the marriage is to be proved by the husband only if the pronouncement of the talaq was ambiguous in nature and was not expressed clearly.

Valid Divorce under Sunni law

The talaq (divorce), as per the Sunni law, can be in writing or oral. The written form of talaq is through the ‘talaqnama’, which is also known as divorce papers. Under the Sunni law, there are no specific words or actions that are to be taken in order to consider a talaq a valid divorce. When the husband clearly expresses the desire to end the marriage (dissolve the marriage), it is considered adequate to dissolve the marital relationship. The talaq does not require the presence of any witnesses under Sunni law. Any type of divorce, whether it is in writing or oral, can be considered a valid divorce without witnesses under Sunni law.

Valid divorce under Shia law

There are different formalities for a valid divorce under the Shia law as compared to the Sunni law. In Shia law, in order to consider a divorce valid, the oral pronunciation of the word ‘talaq’ is necessary. There is an exception to this condition where the husband cannot speak. Oral pronunciation is very important. If the husband gives the divorce in writing when he is able to speak, the talaq will be considered void in nature.

Contrary to Sunni law, in Shia law, witnesses are mandatory when the talaq is being pronounced. There should be two competent witnesses. A Muslim male who has attained the age of puberty and is of sound mind is considered competent to become a witness. If there is no such Muslim male present, then two female adults (female Muslims) who have a sound mind can also be considered competent witnesses. As per Shia law, if the witnesses are not competent in nature or are not present at the time of divorce, the talaq will be considered void. The specific use of Arabic words is a mandatory requirement for a valid divorce under Shia law.

Types of divorce (talaq) under Muslim Law

The two main ways by which the muslim can dissolve marriage is by divorce or when the death of one party takes place, then automatically the marriage is dissolved. There are four main types of divorce among Muslim. The four types are:

Divorce by husband

The husband can divorce his wife using 4 methods of divorce. The four ways a Muslim husband can give divorce are as follows:

Talaq

A Muslim husband can give talaq to his wife anytime during their marriage with the intention of dissolving the marriage. All the conditions are to be fulfilled by the husband at the time of pronouncing the divorce. The Talaq is further divided into two modes, which are:

Talaq-ul-Sunnat

The talaq-ul-sunnat is often referred to as talaq-ul-raje. In this form of divorce, there are always chances of reconciliation and compromise. Both Shias and Sunnis recognise and approve talaq-ul-sunnat as a valid form of divorce. Talaq-ul-Sunnat is further divided into two types:

Ahsan

In this type of divorce, the announcement is to be made in a single sentence for divorce by the husband. The announcement of the divorce must be made when the wife is not having a menstrual cycle and it has to be done during the tuhr period. The announcement is to be made only once.
Iddat is to be observed by the women after the divorce. The iddat period of three months is to be observed in order to represent the Muslim wife’s three menstrual cycles. If the wife is pregnant, then the iddat period will continue until the birth.
During the period of iddat, the husband cannot enter into sexual intercourse with the wife. If he does, then the divorce will be revoked. The revocation will be considered an implied revocation rather than irrevocable.
Ahasan, as a type of divorce, is the most approved mode of talaq. This mode of divorce is considered the most proper form of talaq.
The mode of divorce can be pronounced, when the wife is having a menstrual cycle, but for the divorce to be considered valid, the couple must not have consummated their marriage.

Hasan

The Hasan is less approved as compared to Ahsan. In this type of divorce, revocation can take place.
There should be the pronunciation of the word ‘talaq’ three times in successive tuhrs.
All three announcements should be made when the wife is free from the menstrual cycle and in a state of purity.
When the age of menstruation is crossed by the wife, the announcement is to be made in thirty days with an interval between the three pronouncements.
Sexual intercourse between the husband and wife should not take place during the period of announcement that is to be made three times. If the couple indulges in sexual intercourse, then the divorce is revoked.
The divorce is irrevocable after the pronouncement is made for the third time.

Talaq-ul-Biddat

Talaq-ul-Biddat is considered sinful and is not an approved form of divorce. This form of divorce is not considered a proper way to dissolve a marriage. Talaq-ul-biddat is also called talaq-ul-bain.
Talaq-ul-Biddat is also referred to as triple talaq, wherein after pronouncing the word talaq three times, the talaq is irrevocable immediately.
Only the Sunni law recognises this form of divorce. The Shias and Malikis do not recognise or use this type of divorce.
If the parties want to marry each other again, the female will have to perform the ‘nikah halala’ which means she will have to first marry another male and divorce him in order to marry again.

In India, this form of divorce is considered unconstitutional. The Supreme Court in the case of Shayara Bano vs. Union of India (2017) recognised triple talaq as unconstitutional. The Chief Justice of Allahabad High Court in the case of Rahmat Ullah vs. State of UP (1994) observed that Talaq ul-Biddat is a type of divorce that is irrevocable in nature. This type of divorce is an instant divorce, where it takes place in only a single sitting or when pronounced in tuhr. Talaq ul-Biddat does not give any reconciliation chance or a waiting period nor does it allow Allah’s will for reunion, which can be possible by getting rid of differences and helping the married couple reconcile. This is opposite to what is stated in the holy book of the Quran.

Ila

The next form of divorce is ila. In this type of divorce, the power to pronounce the divorce is given to the husband, who states that he will not enter into any sexual intercourse with his partner (wife) and will follow a vow of continence for four months.
After such pronouncement, the iddat period is to be observed by the wife. The revocation of ila will take place if, during the iddat period, the husband and wife indulge in a sexual relationship.
The divorce will become irrevocable only when the Iddat period is completed.
This mode of divorce is not followed or practised in India.

Zihar

Zihar is also a constructive divorce, similar to Ila.
Under such divorce, the wife is compared by the husband with some other female, who shares a relationship that is prohibited and also does not indulge in any sexual relationship with the wife.
In this case, the wife will have the right to ask for judicial remedies. The wife cannot seek a judicial divorce in such a case.
The husband has to be an adult (attained the age of 18 years) and should be of sound mind when making such comparisons.
The husband can make amendments by feeding sixty people, observing a fast for two months or freeing a slave to revoke zihar. The time period for revocation is four months. After the completion of four months, the zihar is completed.
India does not practise this type of divorce.

In the case of Masroor Ahmad vs. The State (Govt of NCT of Delhi) & Anr. (2022), it was observed by the Delhi High Court that both Ila and Zihar are absent virtually in India as a form of divorce. In place of Ila and Zihar, Lian is found to be a mode of divorce used in India, when a wife is charged with false adultery by the husband and the husband is then not able to prove the same. The wife has the right to seek divorce from the Muslim husband in this case. When the wife files the suit for divorce, the husband has the chance of taking back the allegation of adultery. In this case, the suit will fail. If the husband is adamant about the charges of adultery, then in order to support the charges, he has to take an oath (four oaths). The wife will also, in her defence take four oaths and prove her innocence in front of the court. This entire process is known as the dissolution of marriage by the mode of lian.

Divorce by wife

Talaq-e-Tafweez

The other name of talaq-e-tafweez is delegated divorce.
Both the Shia and Sunni sects recognise this kind of divorce by wife.
The husband who is of sound mind and has attained the age of 18 years has the power to delegate this right to his wife. The power can be conditional or absolute in nature, or it can be permanent or temporary in nature.
The parties can enter into such an agreement before the marriage has taken place or after the marriage. This type of divorce is also known as a contractual agreement.
The wife can seek a divorce if the conditions that are mentioned in the agreement are not fulfilled.
Delegating such a right to divorce to the wife does not deprive the husband of his divorce rights that he already has. The husband will have all the rights to pronounce the divorce intact.

In the case of Sadiya Begum vs. Attaullah AIR 1933 Cal 885, both the wife and husband had entered into an agreement where the right to divorce was given to the wife, with the condition that the husband wanted to marry again for the second time. This type of talaq was considered a delegated talaq and was upheld as a valid form of agreement. The option of using the right to divorce herself was given to the wife in this case. This right would be active when a condition that was previously specified takes place. In the current case, it was the second marriage of the husband, which was the condition for exercising the right to divorce herself. It is totally the decision of the wife to use this right. If the wife chooses to not exercise the right even when the husband marries for the second time, which will be considered a violation of the agreement, the marriage will not be dissolved and will continue.

Lian

When the husband falsely charges the wife with adultery, this type of divorce takes place.
The divorce must be on the grounds of false adultery charges against the wife by the husband.
The Muslim husband must be 18 years of age or older and of sound mind when he is imposing the charges of adultery on the wife.
The court has to pass the dissolution decree for the marriage to be dissolved. The divorce becomes irrevocable in nature when the decree is passed.
If the husband wants to prevent the divorce, then he can withdraw the charges of false adultery against his wife. This has to be done before the court passes the decree.

In the case of Nurjahan Bibi vs. Kajim Ali (1976), the wife filed the suit for divorce on the basis that her husband had charged her with false adultery and bad character. The Muslim wife can bring in such a suit and seek divorce through Section 2 (ix) of the Dissolution of Muslim Marriages Act, 1939.

Divorce by mutual consent

Khula

Khula means ‘laying down’; in this type of divorce, the authority is laid down to the wife by the husband.
Khula required mutual consent from both sides. The wife will pay some consideration from her property in return for her release from the husband.
For the husband’s benefit, the wife releases her rights and mehr. The wife in this type of divorce purchases the divorce from her husband in exchange for consideration.
The wife first makes the offer, which is then accepted by the husband. In Khula, like other divorces, the iddat period is to be observed.

Mubarat

The word mubarat means ‘mutual release’, the parties discharge/release their marital rights.
The parties, in order to become free from each other, mutually divorce each other.
Mubarat and Khula have similar formalities. Like Khula, in Mubarat there is also an offer and acceptance that takes place.
Like all other types of divorces in Muslim law, in Mubarat, the Iddat period is also to be observed.

Divorce by judicial decree under Dissolution of Muslim Marriages Act, 1939

Faskh

A Muslim married couple can file for divorce if they find themselves incompatible with each other.
The basis on which divorces can be filed by the wife is mentioned in Section 2 of the Dissolution of Muslim Marriage Act, 1939.

The grounds for divorce by wife are:

For four years, the husband’s whereabouts are not known as per Section 2(i) of the Act. Provided that for a period of six months, a decree passed on this ground will not be effective. If, during the period of these six months, the husband agrees to fulfil his marital duties by an authorised agent or physically appears before the court stating the same, then the decree can be cancelled by the court.
The husband is impotent when the marriage takes place and continues to be so as per Section 2 (v) of the Act. Provided that the husband will be given one year by the court to prove that he is no longer impotent before the decree is passed on this ground. If the husband is able to prove that he is impotent, then the court will not pass the decree.
For the period of two years, the husband has failed to maintain the wife.
The husband is sentenced to seven years or more in imprisonment, provided that an official order cannot be passed on this ground until the court has given a final sentence.
For three years, the husband has failed to perform the marital obligations, and there is no reasonable cause for the same.
The husband suffers from virulent venereal disease, leprosy or insanity (for a period of two years).
The husband is very cruel to the wife and imposes physical assault or makes statements that are defamatory in nature and affect the wife’s reputation.
If the wife at the time of marriage is under the age of 15, then when she turns 18, she can deny the marriage’s validity, as long as the consumption of marriage has not taken place.

Case laws on Divorce (Talaq) under Muslim Law

The rights that the personal laws grant are established based on religion. These rights are not absolute in nature. The two landmark judgements by the Supreme Court of India in relation to this can be discussed to get a clear idea of this notion.

In the case of Mohd. Ahmed Khan vs. Shah Bano (1985), at the age of sixty-two, Shah Bano’s husband had divorced her and she and her five children were disowned by the husband and thrown out of her marital house. Shah Bano then approached the High Court of Madhya Pradesh in order to restore the amount of her maintenance, which was two hundred rupees. The husband stopped her from doing the same. Shah Bano also wanted to increase the maintenance amount to five hundred rupees as she was divorced using the triple talaq (Talaq-ul-Biddat). The husband used the triple talaq as a defence to not pay the maintenance as Shah Bano was no longer his wife. Under Section 125 of the CrPC, the court granted Shah Bano maintenance on the grounds that, as she was not able to maintain and earn for herself, she is liable for maintenance. This was against Islamic provisions.

The same happened in the case of Shayara Bano vs. Union of India (2017). Shayara Bano, who was married to Rizwan Ahmed, was divorced by a divorce letter that was sent to her when she was at her parent’s house visiting them. She was also a victim of domestic violence. The letter was for talaq-ul-biddat which means triple talaq, a talaq that is instant divorce. A petition was filed by Shayara Bano before the Supreme Court of India to declare that triple talaq, polygamy and nikah halala are unconstitutional. The Supreme Court considered the plea of triple talaq to be unconstitutional. The Court also held that the government has to formulate new provisions for the same and until then, an injunction against pronouncing triple talaq by the husbands on their Muslim wives should be there.

The triple talaq violated Article 14 of the Constitution and is unconstitutional in nature. The Talaq-ul-Biddat discriminates between Muslim men and women, as only men under Muslim personal laws have the right to pronounce triple talaq. The discrimination in religion can also be seen, as other religions have no such type of divorce that is cruel and unjust to women. Article 21 of the Constitution is also violated on the grounds that the right to live with human dignity is violated by triple talaq. With the practice of triple talaq as a form of divorce, women in the Muslim religion are subject to behaviour that is cruel and derogatory. The triple talaq does not give a chance to any kind of reconciliation procedure to the married couple.

The case of Shamim Ara vs. State of Uttar Pradesh (2002) is one of the landmark cases when it comes to divorce under Muslim law. In this case, Shamim Ara, who is the petitioner, has filed a suit against her husband. The wife has claimed that her husband has deserted her and has also not supported her family by providing any financial support. The husband claims to have given the wife a triple talaq in 1987. The key issue in this case is the validity of the talaq by the husband. There were various questions, like, did the talaq take effect when the husband pronounced it but the wife was not present but there were witnesses or did the effect take place when the husband gave the divorce in writing to his wife in the year 1990? It was also noted that there was no validity to the divorce. The Supreme Court decided that the divorce was not valid in the end. The wife was not present when the talaq was given and it was later communicated to her through writing. This is considered unfair to the wife and such a divorce will not be recognized legally.

Justice Krishna Iyer observed in the case of Yousuf vs. Sowramma (1970) that it is a false notion that males under Muslim laws have arbitrary power that is unilateral in nature when it comes to the dissolution of marriage. The view is not in line with instant divorce and is not in accordance with the rules and regulations laid down by Islam. The holy book of the Quran has forbidden expressly that a Muslim husband cannot find excuses to divorce his wife. If the wife is obedient and loyal to the husband, then the husband should not find reasons that are false in nature to divorce her. There is no power given to the Muslim man under the rules and laws of Islam to divorce the wife whenever he wants.

In the case of Danial Latifi vs. Union of India (2001), the Supreme Court ruled that when a talaq is pronounced under the personal laws of a Muslim, it should act in accordance with the natural justice principles and the reasons for obtaining the divorce must be given by the husband. The communication of the talaq must take place as per the rules laid down in Muslim personal laws to consider it a valid divorce. The liability of the husband will not end with the completion of the Iddat period. In the case of destitution of wife and vagrancy, the wife must be maintained by the husband. The husband has to make just and reasonable provisions for the wife, even when it is after the customary period.

As per the prescribed form laid down by the divorce laws and rules for Muslim husbands, a Muslim husband may give the right to divorce to his wife; this was held in the case of Hamidoolla vs. Faizunnissa (1882). In the case of Shaikh Taslim vs. the State of Maharashtra and Other (2022), it was held by the Bombay High Court that the dissolution of the marriage can be done by the family court with mutual consent between a Muslim couple and as per the Muslim personal law.

The validity of the contingent talaq was given some thought by the High Court of Allahabad in the case of Bachchoo vs. Bismillah (1936). There was a dispute between the Muslim couple in which the Muslim husband filed a suit for the restitution of conjugal rights. The talaqnama was presented by the wife, which expressed that when the husband defaulted under any conditions mentioned, the deed would automatically be counted as the talaq kamil. (absolute divorce). The court found that the husband had failed to fulfil the conditions and considered the divorce effective and valid. The Court also dismissed the suit for the restitution of conjugal rights.

Muslim Women (Protection of Rights on Marriage) Act, 2019

The Muslim Women (Protection of Rights on Marriage) Act, 2019, was introduced with the intention of providing protection to Muslim women who are married and to prohibit the husband from pronouncing talaq and other related matters. This Act now makes the triple talaq declaration a cognizable offence in nature.The key provisions under the Act are:

Section 3 of Muslim Women (Protection of Rights on Marriage) Act

This Section states that triple talaq, when given by a Muslim husband to his wife, will be considered void. A triple talaq given in any form, either electronic, written, spoken or in any other way, will be illegal and void in nature.

Section 4 of Muslim Women (Protection of Rights on Marriage) Act

As triple talaq is unconstitutional and illegal in nature, pronouncing such talaq will result in punishment. Section 4 of the Act talks about the punishment for pronouncing the triple talaq. An imprisonment of three years, which can be extended, is given along with a fine to the Muslim husband who divorces his wife using triple talaq.

Section 5 of Muslim Women (Protection of Rights on Marriage) Act

This Section states that the Muslim wife is entitled to a subsistence allowance. The Muslim wife who is divorced is entitled to an allowance from her husband for her and her dependent children.

Section 6 of Muslim Women (Protection of Rights on Marriage) Act

This provision is related to the children’s custody. When the husband pronounces the talaq to his wife, in that case the wife is entitled to custody of the minor children.

Conclusion

The Muslim religion has more than one type of marriage and divorce. The dissolution of marriage can take place using various types of divorce, some of which are followed in India and some are not. Under Muslim law, a marriage is regarded as a civil contract, contrasting with Hindu laws that consider marriage a sacrament. Marriage is regarded as fundamental and is vital for the establishment of a family. Marriage is considered the sole way for establishing an intimate relationship that will be considered legal or halal between women and men and for the children’s legitimacy.

There are certain types of divorces that are no longer practised due to their rigidity. Muslim laws have changed time and again in order to accommodate changing circumstances. The government has introduced acts like the Muslim Women (Protection of Rights on Marriage) Act, 2019 or the Muslim Dissolution of Marriage Act, 1939. The divorce laws in India for Muslims are a blend of legal principles and Islamic principles. With the declaration of triple talaq as unconstitutional, the Muslim laws in India are adapting and changing with time.

Frequently Asked Questions (FAQs)

Is it allowed for a Muslim woman to start a divorce procedure in India?

A Muslim woman can start a divorce procedure in India as per Muslim personal laws. Muslim wives are given rights to divorce their husbands in some types of divorces under Muslim law. Talaq-e-tafweez is a type of divorce that allows Muslim women to start a divorce procedure along with approaching the court if the right is denied.

Are there specific legal requirements that are to be fulfilled in the case of divorce under Muslim personal law?

There are some essential legal requirements which are to be fulfilled, such as the husband should be of sound mind at the time of pronouncing the divorce and should have attained the age of puberty, etc.

Can a Muslim wife file for divorce if her husband is mentally ill under Muslim law?

A wife has the right to file for divorce and dissolve the marriage if the husband is mentally ill. In order to file for divorce, the husband must have been suffering from mental illness for at least two years, as per Section 2(vi) of The Dissolution Of Muslim Marriages Act, 1939.

Is child custody one of the aspects of divorce under Muslim law?

Child custody is also one of the most vital aspects of Muslim law. The custody of the child is given after taking into consideration the best interests of the child.

What is meant by the doctrine of halala?

If the wife wants to go back to her husband after Khula, she will first have to marry another man, dissolve that marriage and remarry again. The Muslim wife can remarry after reconciliation with the husband.

What is Iddat and is it mandatory to be observed?

Iddat is very important and mandatory after the divorce. If the wife is pregnant, then the iddat period will be until the end of the pregnancy. And if there is no pregnancy, then the iddat period of three months is necessary to observe.

Can remarriage take place before the Iddat period is completed?

Remarriage cannot take place if the period of iddat is yet to be completed. A Muslim woman has to complete the iddat period as a condition for a valid divorce.

References

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Comprehensive overview of cyber law and offences

By

Vanshika Kapoor

-

July 8, 2024

0

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

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

In today’s generation, most of us own our personal computers, and the majority of our personal and professional activities are performed using this device known as a “computer.” The one who created it, as we all know, “Charles Babbage,” might not have imagined how he had gifted us both with a boon and a bane. Because of the intense work-from-home trend brought about by the pandemic, we all now have access to this invention known as the computer. Along with this, access to the World Wide Web or the Internet, has made it fast and easy for us to connect with people across borders and collaborate with them. During these collaborations and interactions, we have encountered advanced digital and AI technology that has enhanced the purposes of individuals as well as professionals to cater to various needs effectively and efficiently. However, we have also become prone to becoming victims of cyber-attacks. It means that individuals, organisations, systems, and networks are being targeted and compromised by cybercriminals or hackers daily. These frequent attacks might happen due to various factors such as inadequate cybersecurity measures, outdated software, a lack of employee awareness, poor network security, or vulnerabilities in systems and processes. Thus, it requires attention and action to mitigate the risk of cyber threats.

To mitigate this risk, cyber laws were framed. Cyber laws are a set of rules and regulations that are framed to protect individuals and organisations from fraudulent activities in this digital world of cybercrime. If an individual or an organisation in India has ever been a victim of cybercrime, then they must be aware of the laws, rules and regulations provided below. In India, there are several rules and regulations laid down by the Indian Penal Code 1860 and the Information Technology Act 2000.

Importance of cyber law

Safeguarding information integrity

Cybersecurity laws enable individuals and organisations to navigate through the challenges of facing ransom cybercriminals that perform these cyber-attacks. These laws help protect personally identifiable information, financial information, and health information. It provides privacy, prevents the dissemination of personal information and keeps it private when we use various online portals, e-commerce websites, shopping websites, etc.

Foster organisational trust and assurance

It builds trust and confidence in an organisation when they know that they have laws to protect their digital data, network servers, employees’ personal data, and the company’s data. Enables the smooth and effective functioning of the organisation’s structure by ensuring that the organisation has cybersecurity policies in place to prevent any kind of fraudulent activity. Most of the time, these criminals not only try to steal financial information but also hinder the reputation of an organisation with ill intent.

Mitigating criminal activities

The increase in cybercrime and cyberattacks during the pandemic had tremendously increased, wherein most of the reputed organisations and firms were being attacked by these hackers due to the existence of vulnerabilities in an organisation’s infrastructure. However, the existence of cyber laws had made it difficult for most of these hackers and the major organisations were able to put up strong security interfaces and checks like double authentication methods, e.g.: Microsoft authentication, to enable the smooth functioning of their organisation.

Facilitating digital evolution

Cyberlaws have tremendously helped in the digitization of activities in both personal and professional lives. We are free to use online applications and install applications on our smartphones after accepting the terms and conditions of the EULA or relevant rules and regulations of the application due to the existence of cyber laws.

Advocating for optimal cyber security protocols

Most organisations nowadays have their cybersecurity policies in place. It encourages organisations to implement these best practices, which are commonly used for the welfare of businesses, and effectively promote business activities across borders without any dilemma.

Safeguarding vital infrastructure

There are provisions in the cybersecurity laws that are there to protect different institutions and infrastructures, such as healthcare, finance, and public and private sector businesses, from cybersecurity attacks. It is equally important for maintaining public peace and national security.

Tackling privacy challenges

In matters of safeguarding personal rights and interests, cybersecurity plays a distinctive role by giving individuals control over how to use their data online safely.

Legal ramifications of cyber offences under Indian Penal Code 1860 and IT Act, 2000

The provisions that apply to cybercrimes related to India are as follows:

Theft

If your mobile is lost or stolen, the relevant section that applies is Section 379 of the IPC Act, which contains a punishment for theft that is three (3) years of imprisonment, a fine, or both.

Identity theft or cheating by personation: For example, we all use Facebook and Instagram nowadays and with the widespread use of social media platforms, individuals are vulnerable to identity theft. Punishment for identity theft under Section 66C of the IT Act is either for a term that can extend to three (3) years of imprisonment, a fine of up to Rs. 1 lakh or both.

Lost and found device

If you lose your mobile phone, data, or computer and it is found with someone else, the accused person can be imprisoned for a period of three years under Section 411 of the IPC Act, with a possibility of a fine or both. Additionally, as per IT Act Section 66B, a fine of up to Rs one lakh can be imposed, along with imprisonment for a period of three (3) years or both.

Organisation’s data

In the event of a cyber attack when an organisation’s data is stolen, the accused can face imprisonment for a period of three (3) years as per Section 379 of the IPC Act, along with a possibility of a fine or both. Similarly, under IT Act Section 66B, a fine of up to Rs one lakh and imprisonment for a period of three (3) years, or both, can be imposed.

Password theft

Using someone’s password to conduct illegal and fraudulent activities can lead to a punishment under Section 419 of the IPC three years of imprisonment, a fine or both. The punishment can extend to a period of seven years under Section 420 of the IPC.

Biometric theft

Misusing someone’s thumb impression can result in imprisonment for up to three (3) years under IT Act Section 66B, a fine of up to one lakh or both.

Sale or distribution of obscene material

As per IPC Section 292, selling, distributing, exhibiting or possessing obscene materials or engaging in advertising, publication or transmission of such materials can lead to imprisonment of up to two (2) years and a fine up to Rs 2000. For repeat offenders, the penalties may increase to Rs 5,000 and imprisonment for up to five years. However, there is an exception to this rule; if the said material is used for educational and religious activities, then the same is exempt.

Voyeurism

A man who engages in an act of observing a woman without their consent while they are engaging in intimate activities, thereby capturing and sharing images of their private parts, faces imprisonment of (one to three) 1 to 3 years in the first instance and a fine under Section 354 of the IPC. Repeat offenders may face imprisonment, which may extend from (three to seven) 3 to 7 years, along with a fine up to (two) 2 lakhs or both, as per Section 66E of the IT Act 2000.

Cyberstalking

Engaging in malicious acts to harass, scare, intimidate or attempt to harm a woman to engage her in a conversation despite her consent

with the intention of financial gain causing harm, instilling fear or causing damage to the personal life or career; this also includes activities such as tracking physical location, stealing identities for financial gain, issuing death threats, blackmailing with personal information, spreading false accusations online, etc. The above harmful acts amount to Cyberstalking. Under Section 354D of the IPC, such an offender can be imprisoned for a period of up to three years, with a fine for the first conviction and up to 5 years for the second or subsequent conviction.

According to Section 67 of the IT Act, if a stalker shares any obscene material online with the victim through electronic media, such a stalker can be punished with imprisonment up to (five) 5 years and a fine of one lakh in the first instance. In the second instance, the punishment increases to ten (10) years of imprisonment with a fine of Rs 2 lakhs.

Forgery and email spoofing

This is a technique used by hackers to send an email to users which appears to be genuine in the first place. This method is used to attack the user or recipient of an email making him/her believe that the email has been received by a trusted source. Eg: Spam emails, as per Section 271 of IPC if a document or electronic record which the creator is aware is a forged document is used in a manner or with the intention that it is a genuine document then such offender shall be punished in the same manner as if he has forged such documents or email records.

These examples illustrate the prevalence of cyber-attacks and thefts in today’s digital landscape.

Four different types of cyber laws in India

Information Technology Act (2000)

The Information Technology Act, enacted in 2000, is a comprehensive law that governs information technology in India. It aims to provide a legal framework for electronic transactions, promote e-governance, and protect sensitive personal data.

One of the key features of the Act is its recognition of electronic records and digital signatures as legally valid. This provision has facilitated the growth of e-commerce and e-banking in India by enabling secure and legally binding transactions over the internet. The Act also establishes the legal framework for digital signatures, ensuring that they are as legally binding as handwritten signatures.

Another significant aspect of the Act is its focus on cybersecurity. It criminalises various forms of cybercrime, such as hacking, unauthorised access to computer systems, and denial of service attacks. The Act also empowers law enforcement agencies to investigate and prosecute cybercrimes effectively.

To protect sensitive personal data, the Act mandates organisations to implement reasonable security safeguards to prevent unauthorised access, disclosure, or misuse of such data. This provision has helped enhance privacy protection and reduce the risk of data breaches.

The Information Technology Act has played a crucial role in shaping the legal landscape of information technology in India. It has facilitated the adoption of digital technologies across various sectors, including e-governance, e-banking, and e-commerce. The Act has also contributed to improving cybersecurity and protecting sensitive personal data, making the digital environment more secure and reliable for individuals and businesses alike.

However, the Act has also been criticised for some of its provisions, such as the broad powers granted to law enforcement agencies to intercept and monitor electronic communications. There have also been concerns about the potential misuse of the Act to suppress dissent and free speech online.

Despite these criticisms, the Information Technology Act remains a landmark piece of legislation that has transformed the legal framework for information technology in India. It has helped bridge the gap between the physical and digital worlds, enabling individuals and businesses to harness the benefits of technology while ensuring a certain degree of legal certainty and protection.

Key provisions of the IT Act include:

Cybercrime offences: The IT Act defines and criminalises various forms of cybercrime, such as unauthorised access to computer systems, data theft, cyber fraud, and online harassment. These provisions aim to protect individuals and organisations from malicious activities conducted through digital platforms.
Electronic transactions: The IT Act recognises the validity of electronic transactions and provides a legal framework for conducting business online. It establishes guidelines for digital signatures, electronic contracts, and online payments, ensuring the enforceability and security of electronic transactions.
Data protection: The IT Act addresses data protection and privacy concerns in the digital age. It mandates organisations to take reasonable security measures to protect personal information collected and stored electronically. Additionally, it provides individuals with the right to access and correct their personal data.
Cyber security: The IT Act emphasises the importance of cyber security and mandates organisations to implement appropriate security measures to protect their systems and data from unauthorised access, hacking, and cyberattacks.
Cyber Appellate Tribunal: The IT Act establishes the Cyber Appellate Tribunal to adjudicate disputes and appeals related to cybercrimes and online transactions. This specialised tribunal ensures prompt and efficient resolution of cyber-related disputes.

Indian Penal Code (IPC) (1980)

The Indian Penal Code (IPC) (1980) serves as a comprehensive body of legislation that effectively tackles a broad spectrum of criminal offences, including those associated with cyber fraud. The significance of the IPC in safeguarding users who unfortunately fall victim to cyber fraud on various online portals cannot be overstated.

The IPC meticulously defines and categorises various forms of cyber fraud, ensuring that perpetrators are held legally accountable for their actions. It addresses common cyber fraud offences such as phishing scams, identity theft, digital forgery, and online extortion, among others. By establishing clear legal boundaries, the IPC provides a robust framework for investigating and prosecuting cyber fraud cases.

Furthermore, the IPC plays a crucial role in providing legal recourse and remedies for victims of cyber fraud. Through its provisions, individuals who have suffered financial losses or emotional distress as a result of cyber fraud can seek legal action against the perpetrators. The IPC empowers victims to file complaints, and seek compensation and restitution for the damages incurred.

Moreover, the IPC’s significance lies in its ability to deter potential cyber fraudsters. By outlining the severe consequences associated with such offences, the IPC sends a strong message that cyber fraud will not be tolerated. It acts as a preventive measure, discouraging individuals from engaging in fraudulent activities online.

To ensure its effectiveness in addressing the evolving landscape of cyber fraud, the IPC is subject to regular amendments and updates. These amendments reflect our continuous efforts to keep pace with the sophistication of cyber fraud techniques and emerging threats. The IPC’s adaptability ensures that it remains relevant and capable of safeguarding users from the ever-changing tactics employed by cybercriminals.

The IPC’s provisions are supplemented by the Information Technology Act, 2000, which specifically addresses cybercrimes and provides additional safeguards for online transactions and data protection.

Companies Act (2013)

This Act ensures that the companies meet the regulatory requirements and follow the rules and regulations laid down in the Act. It also covers laws relating to e-discovery, cyber forensics, and cybersecurity diligence that enable the company’s leaders to be diligent and compliant with the same, thereby adhering to the law.

NIST Compliance

The National Institute of Standards and Technology (NIST) framework serves as a comprehensive guide for organisations seeking to enhance their cybersecurity posture and address potential threats. Established in 2014, the framework consists of a set of standards, guidelines, and best practices designed to protect information systems and critical infrastructure from cyberattacks and data breaches.

At the core of NIST compliance lies the Cybersecurity Framework (CSF), a voluntary risk management framework that provides a structured approach to identifying, assessing, and mitigating cybersecurity risks. The CSF is based on five core functions:

Identify: Organisations must identify and document their assets, systems, and data that require protection from cyber threats.
Protect: Once assets have been identified, organisations must implement safeguards and controls to protect them from unauthorised access, use, or disclosure.
Detect: To ensure timely response to cyber incidents, organisations must have mechanisms in place to detect and monitor suspicious activities within their systems.
Respond: In the event of a cyber incident, organisations must have a response plan in place to minimise the damage and restore normal operations promptly.
Recover: After a cyber incident has occurred, organisations must recover lost or compromised data and restore their systems to normal functionality.

By adhering to NIST compliance requirements, organisations can significantly enhance their cybersecurity posture, reduce the risk of data breaches, and meet regulatory requirements. NIST-compliant organisations benefit from improved security measures, increased resilience to cyber threats, and greater confidence from customers and stakeholders.

Achieving and maintaining NIST compliance involves ongoing efforts, including regular risk assessments, the implementation of security controls, employee training, and continuous monitoring of cybersecurity threats. Organisations can leverage NIST resources, such as the Cybersecurity Framework Implementation Guide and the NIST Cybersecurity Practice Guides, to assist with their compliance efforts.

NIST compliance is essential for organisations that handle sensitive data, operate critical infrastructure, or are subject to regulatory requirements. By embracing NIST’s cybersecurity guidelines and best practices, organisations can proactively safeguard their information assets, mitigate cyber risks, and ensure the integrity and confidentiality of their data.

US case laws that have shaped the laws on hacking and data theft in the US

Now let us see below a few US case laws wherein there have been several landmark cases that have shaped the legal framework surrounding hacking and data theft in the US.

United States vs. Aaron Swartz (2013)

Aaron Swartz was a talented computer programmer, internet activist, and open access advocate. In 2011, he was arrested and charged with multiple counts of fraud and violating the Computer Fraud and Abuse Act (CFAA) for systematically downloading millions of academic articles from JSTOR, a subscription-based online academic journal database.

Swartz had been a research fellow at Harvard University, and he had legitimate access to JSTOR’s database. However, he used a Perl script to automate the downloading of articles from JSTOR, without the permission of JSTOR. Swartz’s actions were motivated by his belief that academic research should be freely available to everyone, and he intended to make the downloaded articles available to the public.

The case against Swartz drew widespread attention and sparked a debate about the scope of the CFAA and the appropriate balance between intellectual property rights and the public’s right to access information. Swartz became a symbol of the fight for open access and internet freedom.

In 2013, Swartz committed suicide while facing the prospect of a lengthy prison sentence. His death was a tragedy and a loss to the internet community and the open access movement.

United States vs. Albert Gonzalez (2009)

Case Summary: An individual named Albert Gonzalez, became a secret informer to the United States Secret Service. During the tenure of his service from 2003 to 2008, he had committed a lot of fraudulent activities, including identity thefts and computer crimes, as part of his covert operations. He was accused of combined credit card theft and reselling more than 170 million card and ATM numbers. He had created the biggest fraud in history. His activities also include data breaches from top companies, namely TJX Companies, BJ’s Wholesale Club and others. In the year 2020, he was sentenced to 20 years of federal imprisonment for conducting fraudulent activities in these cybercrimes.

Facebook, Inc. vs. Power Ventures, Inc. (2012)

In 2012, Facebook, Inc. filed a lawsuit against Power Ventures, Inc., a data analytics company. Facebook alleged that Power Ventures had violated the Computer Fraud and Abuse Act (CFAA) by accessing the data of Facebook users without their consent. Power Ventures collected this data by creating fake Facebook profiles and sending friend requests to real users. Once the friend requests were accepted, Power Ventures could access the personal information of those users, including their names, email addresses, and photos.

Power Ventures argued that its actions were not illegal because it did not access Facebook’s computer systems without authorization. Instead, it argued that it merely used the public features of Facebook’s website, such as the friend request system, to collect data.

The Ninth Circuit Court of Appeals disagreed with Power Ventures’ argument. The court held that Power Ventures’ actions violated the CFAA because they exceeded the scope of Facebook’s terms of service. The court noted that Facebook’s terms of service prohibited users from using fake profiles or sending friend requests to people they did not know. By creating fake profiles and sending friend requests to real users, Power Ventures violated Facebook’s terms of service and thereby exceeded the scope of its authorization to access Facebook’s website.

The court also held that Power Ventures’ actions caused Facebook harm. The court noted that Facebook spent significant resources developing and maintaining its website, and that Power Ventures’ actions interfered with Facebook’s ability to provide its services to its users.

The Ninth Circuit Court of Appeals’ decision in Facebook, Inc. vs. Power Ventures, Inc. is an important precedent for cases involving the unauthorized access of data from social media websites. The decision makes it clear that such actions can violate the CFAA, even if the defendant does not access the website’s computer systems without authorisation.

Conclusion

With the type of curbs that are being used in today’s generation to mitigate the risk of cyber threats and attacks in different countries, it can be good to sum up that the laws and risk mitigating solutions are strengthening its pace day by day. Having a good framework for cybersecurity in an organisation is a critical, mandatory requirement that has been followed by almost all organisations and has reduced the number of attacks. However, we as individuals need to be very careful while dealing in this world of the internet so we don’t become victims of such attacks.

References

Quid pro quo under contracts : an insight

By

Vanshika Kapoor

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July 8, 2024

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This article has been written by Utkarsh Shukla pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

The law relating to contracts is to be found in the Indian Contract Act, 1872. The Act, instead of formulating statutory rights and duties that could be governed and protected under the law, rather spreads out a skeleton framework consisting of limiting principles under which both parties to the contract may formulate their corresponding rights and duties as permissible under the skeleton framework, which eventually the law will uphold.

The aim of the Indian Contract Act, in simple terms, is to make sure that agreements between people are fair and legally binding. It lays down the rules for how contracts should be made, what makes them valid, and what happens if someone doesn’t keep their end of the deal. It’s there to ensure that when people make promises to each other, they stick to them, and if they don’t, there are consequences.

Definition of a contract

A contract is an agreement between two or more parties that creates legal obligations that are enforceable by law. It must involve an offer, acceptance, and consideration, and the parties must have the capacity to enter into the agreement. Additionally, the purpose of the contract must be legal. Halsbury defines a contract as “an agreement between two or more persons which is intended to be enforceable at law and is constituted by the acceptance by one party of an offer made to him by the other party to do or abstain from doing some act.”

Section 10 of the Indian Contract Act, 1872, entitled ‘What agreements are contracts’ lists down the mandate for an agreement to be fit to be a legally binding contract. As per the provision, the agreement in question must have the free consent of the parties; the parties to the agreement must be competent to contract as per the statutory requirement; the agreement in question must be for a lawful consideration and lawful object; and the agreement must not be thereby expressly declared to be void.

What is Quid pro quo

Quid pro quo, which means ‘something for something’, pertains to the principle of exchange, fundamental in the realm of reciprocating benefits. In regard to the contractual relationship, it mandates that any concession or benefit provided by one party must be met with corresponding reciprocation from the other party, establishing it as a form of reciprocity. In the legal sphere, quid pro quo embodies the concept of consideration, an essential criterion for the validity of contracts as per Section 10 of the Indian Contract Act. For instance, if party X agrees to sell their vehicle to party Y for a fixed amount of ₹5,00,000 and party Y commits to pay ₹5,00,000 as the agreed fixed amount for the vehicle, thus illustrating the mutual exchange of promises as consideration.

The term ‘consideration’ in the contract law sphere can be defined as the recompense given by one party to the contract to the other party of the contract. It is the price that makes a promise legally binding and it is what each party gives to the other party or does in return to recompense the other party’s promise. The consideration makes each party to the contract obliged to do something or abstain from doing something as per the desire of the other party.

All contracts must be supported by consideration. In most cases, the promisor for doing an act or not doing an act derives some benefit by way of consideration. Hence, consideration is an identifiable benefit as quid pro quo from the promise or performance of the promisor. Pollock has defined ‘consideration’ as “the price for which the promise of the other is brought, and the promise thus given for value is enforceable”.

Consideration in a contract, according to the Indian Contract Act of 1872, is basically what each party gives or promises to give the other. It could be doing something, not doing something, or promising something. However, if this exchange involves doing something illegal, the agreement becomes void. Now, for the consideration to be valid, it must meet certain conditions.

Firstly, the consideration has to be something the promisor wants. It can come from the person they’re making the promise to, or even from someone else. But it can’t be something a third party wants. Secondly, this consideration can be from the past, present, or future. So, whether you did something in the past, you’re doing it now, or you promise to do it in the future, it counts. Lastly, the consideration should be real, meaning it has to be something of value. It doesn’t have to be exactly equal to what’s promised in return, but it has to be real and not just a fake promise or something the person is already legally obligated to do.

In simpler terms, consideration in a contract is what each side gives or promises to give each other. It has to be something the person making the promise wants, can be from the past, present, or future, and has to be real and valuable. If it involves doing something illegal or if it’s just a fake promise, then the contract isn’t valid.

Exceptions when agreement without consideration is valid

Section 25 of the Indian Contract Act, as a general rule, declares that an agreement without consideration is void. The section, however, mentions three exceptions when there is no need for any consideration of the validity of the contract. It lists out the instances wherein contracts, even without considerations, are valid. Firstly, a written and registered agreement made on account of natural love and affection between parties standing in near relation to one another is valid even without consideration. Secondly, an agreement without consideration for a promise to compensate a person who has already voluntarily done something for the promisor or something that the promisor was legally compelled to do is a valid contract. Thirdly, a written and signed promise to pay time-barred debt is a valid contract.

Quid pro quo and English Common Law

The English common law concept of quid pro quo understands that something of value has to be provided or performed for something of value, typically when there’s uncertainty about the fairness of the transaction. The doctrine of consideration mandates that for a contract to be valid, there must be an exchange of value between the parties involved. This principle ensures fairness in agreements. If there is no such exchange or quid pro quo, either a provision or the entire contract may be deemed invalid, due to it being labelled as unfair. It’s important to note that this principle falls under civil law rather than common law.

Judicial interpretation of ‘Quid Pro Quo’

The Supreme Court in Sreenivasa General Traders & Ors. vs. the State of Andhra Pradesh & Ors. (1983) delved into the concept of quid pro quo in the context of contractual relationships. The court emphasised that, for a contract to be legally enforceable, there must be a mutual exchange of benefits or promises between the parties involved. This element of quid pro quo is fundamental to the validity of a contract.

The Court reasoned that a fair exchange is essential for the creation of a legally binding agreement. Both parties must derive some tangible benefit or consideration from the contract in order for it to be recognised as such. Without this mutual exchange, the contract lacks the necessary elements to be considered legally enforceable.

The court’s decision in Sreenivasa General Traders reinforces the principle of reciprocity in contractual relationships. It ensures that both parties enter into the contract with the expectation of receiving something in return for their obligations. This element of quid pro quo prevents one party from gaining an unfair advantage over the other and promotes fairness and balance in contractual arrangements.

The court’s ruling also highlights the importance of carefully considering the terms and conditions of a contract before entering into it. Each party must ensure that they understand their rights and obligations and that the contract reflects their true intentions and expectations. By ensuring the presence of quid pro quo, the court helps to protect the interests of all parties involved in contractual relationships.

In conclusion, the Supreme Court’s decision in Sreenivasa General Traders serves as a reminder that a fair exchange is at the heart of every legally enforceable contract. The element of quid pro quo ensures that both parties benefit from the agreement and that their rights and obligations are clearly defined and understood.

In the landmark case of Krishi Upaj Mandi Samiti vs. Orient Paper & Industries Ltd. (1994), the Supreme Court of India made a significant ruling regarding the applicability of the quid pro quo principle in the context of taxpayer-public authority relationships. The court held that the traditional notion of quid pro quo, which requires a direct exchange of benefits between two parties, does not apply in this specific scenario.

Instead, the Court emphasised the principle of reciprocity, highlighting its absence in the case at hand. The court reasoned that a valid contract, including those involving taxpayers and public authorities, requires a balanced exchange where both parties mutually benefit. In the absence of such reciprocity, the court found that the conditions for a valid contract were not met.

The Court’s decision in this case has far-reaching implications for the interpretation of taxpayer-public authority relationships. It establishes that the traditional quid pro quo principle, often associated with commercial contracts, does not fully capture the complexities of these relationships. The court’s emphasis on reciprocity recognises that the benefits derived from public services and infrastructure by taxpayers extend beyond immediate and direct exchanges.

This ruling underscores the importance of considering the broader social and economic context when evaluating the fairness and validity of taxpayer obligations. It acknowledges that public authorities have a responsibility to provide essential services and infrastructure for the betterment of society and that taxpayers, in turn, have a corresponding obligation to contribute to the collective well-being through their taxes.

The principle of reciprocity, as established by the Supreme Court in this case, serves as a guiding framework for interpreting taxpayer-public authority relationships. It ensures that both parties acknowledge and fulfil their respective roles and responsibilities, fostering a balanced and mutually beneficial dynamic.

In the case of Nagar Mahapalika Varanasi vs. Durga Das Bhattacharya & Ors., decided in 1968, the Supreme Court of India delivered a significant judgement regarding the legality of annual licence fees imposed on rickshaw owners and drivers by the Varanasi Municipal Board. The Court delved into the concept of quid pro quo, emphasising that the imposition of such fees must be justified by a clear exchange of value between the municipality and the individuals paying the fees.

The Court analysed the expenses incurred by the Municipal Board in providing services related to rickshaws, such as the construction and maintenance of roads and the regulation of traffic. After deducting these expenses from the revenue generated through the licence fees, the court found that the remaining benefits did not sufficiently match the amount of the fee. This imbalance meant that the fee could not be considered a fair exchange of value or a true quid pro quo.

Consequently, the Court held that the license fee imposed by the Varanasi Municipal Board was unlawful and could not be upheld as a tax. This decision established the principle that municipalities cannot arbitrarily impose fees on individuals or businesses without providing commensurate benefits or services in return. The concept of quid pro quo serves as a crucial safeguard against the misuse of taxation powers by local authorities.

The Nagar Mahapalika Varanasi case has had a lasting impact on the interpretation of municipal taxation laws in India. It has been cited as a precedent in subsequent cases involving challenges to the legality of licence fees and other charges imposed by municipalities. The Court’s emphasis on quid pro quo has helped ensure that municipalities act reasonably and in the best interests of their citizens when determining and imposing fees.

In the case of Kewal Krishna Puri vs. State of Punjab (1979) it was determined that when a fee is imposed, it places an obligation on specific individuals or groups to submit accounts, returns, or similar documents to the relevant authorities, especially when the fee amount depends on such submissions. This process can involve inconvenience and sometimes even unjust treatment for those liable to pay the fee. The authorities collect the fee from them, and in some cases, economic laws may allow the burden to be shifted to others over time. However, despite any services rendered, no matter how remote, it was found that simply providing a service does not meet the requirement of quid pro quo necessary for fee imposition. Registration fees, on the other hand, are considered differently, as they are primarily charged as a regulatory measure and do not need to demonstrate such a direct relationship between the fee and the service provided.

Conclusion

Quid pro quo stands as a crucial legal concept, emphasising the necessity of transparent exchanges in legal dealings. While it’s beneficial for setting expectations and responsibilities, it’s vital to ensure ethical and lawful quid pro quo arrangements. In contract law, it forms the foundation, ensuring a balanced distribution of rights and duties among parties. Quid pro quo serves as the linchpin of contract law, anchoring the deliberate equilibrium of rights and obligations between contracting parties. The careful application of quid pro quo guarantees fairness and enforceability in contracts, promoting trust and accountability in business transactions. Thus, a thorough grasp of quid pro quo is essential for legal professionals, stakeholders, and commercial transaction professionals, enabling them to navigate contract law intricacies accurately.

References

Indian Contract Act, 1872.
Unfair Contracts Terms Act, 1977
Sreenivasa General Traders & Ors. Etc vs State Of Andhra Pradesh & Ors. Etc, 1983 AIR 1246
Krishi Upaj Mandi Samiti vs Orient Paper & Industries Ltd, 1995 SCC (1) 655 5.
Nagar Mahapalika Varanasi vs Durga Das Bhattacharya & Ors, 1968 AIR 1119
Kewal Krishan Puri & Anr vs State Of Punjab & Others, 1980 AIR 1008.

Sahoo vs. State of UP (1965)

By

Rachit Garg

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July 8, 2024

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This article has been written by Satyanshu Kumari. The article explores the concepts of admission and confession under the Indian Evidence Act, of 1872, wherein both admission and confession act as the exceptions under the Act. In this article, different kinds of confessions have been discussed under Section 24 to Section 30 of the Indian Evidence Act, of 1872.

Table of Contents

Introduction

The case of Sahoo vs. State of U.P. (1965) is an important legal matter that delves into the admissibility of a confession in criminal cases. This case falls under criminal law and evidence law, specifically focusing on interpreting and applying Sections 24 to 30 of the Indian Evidence Act (1872) (hereinafter referred to as the ‘Evidence Act’) The central issue is whether a self-incriminating statement muttered by the accused himself can be considered a confession, and if such a confession requires communication with another person to be admissible in court.

Both admissions and confession are the exceptions to the hearsay rule of the Indian Evidence Act. It should be mentioned that the probative value of (probability of reaching its proof purpose of a relevant fact in issue) admission and confession are not dependent on the conduct of one another, but, like any other piece of evidence, it may only be considered as evidence if it is proven. This proof may only be provided by witnesses who heard the admission or confession, as the case may be. In this article, we will understand confession and admission, which are exceptions to the hearsay rule of the evidence.

Details of the case

Case Name- Sahoo vs. State of U.P. 1966 AIR 40
Equivalent Citations– 1966 AIR 40
Case Number: 248 of 1964
Acts involved: The Indian Penal Code, of 1860 (hereinafter referred to as “IPC”) and the Indian Evidence Act, of 1872.
Relevant statutes and provisions: Section 302 of IPC and Sections 24 to 30 of the Evidence Act.
Name of the Court– The Supreme Code of India
Bench– Subbarao. K, J.C. Shah and R.S. Bachawat
Petitioners– Sahoo
Respondents– State of U.P.
Judgement Date– 16th February 1965

Facts of Sahoo vs. State of UP (1965)

Sahoo, the appellant in the said case, is a resident of Pachperwa in the district of Gonda. He has two sons, Badri and Kirpa Shankar. He lost his wife years ago. His eldest son, Badri, married one Sunderpatti. Badri had taken up employment in Lucknow and hence his wife lived with his father, the appellant. It was commonly believed that Sunderpatti and Sahoo shared an illegitimate relationship which was intimate.
However, there were several quarrels between them and on 12th August 1963 Sunderpatti fled during one such quarrel, to the house of a neighbour, Muhammad Abdullah.
The appellant brought her back after one such quarrel and after some worldly altercation, they both slept in the same room of the house. The appellant’s second son, Kripa Shankar, an 8-year-old boy, was the only other resident of the house.
The next morning Suderpatti was found severely injured and was rushed to the hospital, however, she died soon after.
Early on the same morning, the appellant was seen muttering to himself, the fact that he had finished Suderpatti, he had put an end to daily quarrels. Sahoo was sent up for trial before the Court of Session, Gonda, on a charge under Section 302 of the IPC (Section 101 of Bharatiya Naya Sanhita, 2023, hereafter referred to as “BNS, 2023).

Issues raised

Whether muttering by the accused amounts to confession under the Indian Evidence Act and if so, is it admissible evidence under Section 17 of the Evidence Act?
Whether communication with another person necessary for an extra-judicial confession under Sections 24 to 30 of the Evidence Act?
What is the probative value of a confessional soliloquy?
Whether the consideration of circumstantial evidence alongside the confession establishes the guilt of the accused?

Arguments of the parties

Petitioners

Petitioner argued that mere muttering cannot be considered a confession. Confession needs to be made by the offender to someone else. Further, the circumstantial evidence was insufficient to prove the guilt of the accused as there was no direct evidence.

It was contended that the muttering of the accused did not constitute a confession, arguing that a confession, whether judicial or extra-judicial, requires communication with another person. The petitioner raised arguments about the concept of confession in the present case and questioned the validity of a self-incriminating statement made by the accused.The petitioner challenged the admissibility and weightage of the confession as primary evidence in this case, therefore emphasising on the need for corroborative evidence to support its validity.

Respondent

In this case, the respondent argued that a valid confession does not necessarily require that such a statement be made to the authorities; they contended that mere muttering is sufficient. Further more, they argued that a series of circumstantial evidence point towards the guilt of the accused. The incident of Sunderpatti running into her neighbour’s house for seeking help established the enmity between the appellant and the deceased. Moreover, Kripa Shanker witnessed the appellant leaving the house murmuring something.

Thus, respondents asserted that the confession made by the accused is admissible and constitutes valid evidence. They argued that the confession, along with other evidence presented, was sufficient to prove the appellant’s guilt and support the conviction under Section 302 of the IPC.

Law discussed in Sahoo vs. State of UP (1965)

The laws involved in this case are Section 302 of the Indian Penal Code and Section 24 to Section 30 of the Indian Evidence Act.

Section 302 of the Indian Penal Code

Section 302 of the IPC provides about the “punishment for murder”. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to a fine. However, Section 300 mentions that whoever ‘causes the death of any person to cause death, or intending to cause death or to cause such bodily injury as is liable to cause death, or with the knowledge that his act is likely to cause death, or with the knowledge that his act is likely to cause death, is said to commit murder’.

Punishment under Section 302 of IPC

Under this Section, murder is punishable by “life imprisonment or death”. The court has the discretion to determine the punishment depending on the facts and circumstances of each case. If the murder involves exceptional brutality or cruelty, the court may impose the death penalty on the accused.

It is also important to understand the distinction between murder and culpable homicide, not amounting to murder. Culpable homicide is a ‘lesser offence’ than murder and is defined under Section 299 of the IPC. The difference between the two lies with the “intention of the accused”. In cases of culpable homicide, the accused “may not have had the intention of causing death but has acted with reckless or negligent behaviour that has led to the death of another person”. However, in the case of murder, the accused has the intention to cause the death of the person.

Section 302 is classified as a ‘non-bailable and non-compoundable offence’, indicating that the accused cannot be released on bail easily and the case cannot be settled out of the court between the parties involved. The accused must stand trial and face the full consequences of his actions.

‘Confession’ under the Indian Evidence Act

The word ‘confession’ has not been defined under the Evidence Act. Confession deals under the Evidence Act from Section 24 to Section 30. Further, it is provided under Sections 164 [Section 183 of Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’)], 281 (Section 316 of BNSS) and 463 (Section 511 of BNSS) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Code”). A confession can be defined as the admission or acknowledgement of the offence by the accused.

Forms of confession

Judicial confession

Judicial confessions, as the name suggests, are those confessions that are recorded in the presence of the magistrate or made in the court as prescribed by the law. The evidentiary value of the judicial confession is governed by Section 80 of the Evidence Act, in which it is provided that if the confession is made in the presence of the magistrate or the court recorded by the magistrate in due course of the legal proceedings, then such confessions shall be presumed to be true and genuine confessions upon which the accused can be duly tried.

Section 164 of the Code empowers the magistrate to record the confession of the accused, thereby establishing that recording of the confessions is an exclusive domain of the judicial function, and the executive does not have the authority to record the confession.

Extra-judicial confession

An extra-judicial confession is made by the accused elsewhere in the absence of a magistrate or the court is considered an extra-judicial confession. When done during a conversation with a person other than the magistrate, a free and voluntary confession of guilt is termed an extra-judicial confession against a guilty plea on an arrangement made before a court by the person in a fit state of mind. The extra-judicial holds lower evidentiary values compared to the judicial confession.

Relevancy of confession under the Evidence Act

Section 24 to Section 30 of the Evidence Act deals with the relevancy of the confession.

Section 24: Confession by inducement, threat or promise

Section 24 considers certain confessions to be irrelevant if they were obtained as a result of an incentive, threat, or promise, particularly when made to someone in authority, in the court’s opinion to give the accused person grounds, which would appear to be reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature about the proceedings against him. Confessions that are not voluntarily provided are assumed to be fake.

E.D. Smith vs. Emperor (8th November 1917)

In this case, Mr E.D. Smith, a tailor doing his business in Mount Road, Madras, is against a conviction by the Chief Presidency Magistrate for the dishonest possession of the stolen property under Section 411 of the IPC (Section 315 of BNS, 2023). The property consists of various articles alleged by the prosecution to have been stolen from the Army Clothing Factory situated close to the accused’s premises. In support of the conviction, the Chief Presidency Magistrate has largely relied on certain statements made by the accused at the time of the search of his shop by the officer of the Army Clothing Department, examined as the second prosecution witness.

It was held that the statements are confessions and that their admission in evidence is barred by Sections 25 and 26 of the Evidence Act. The Chief Presidency Magistrate has held that there are no confessions within the meaning of these Sections, and it seems convenient to dispose of, the question of the admissibility of this evidence before proceeding further.

Section 25: Confession made to the police officer not to be proved

This Section provides that no confession made to a police officer shall be proved against the person accused of any offence. This provision provides a safeguard for the rights of the accused, in situations where the confessions are obtained under police custody and may be coerced or extracted through torture.

Pakala Narayana Swami vs. King Emperor (1939)

In Pakala Narayana Swami v King Emperor, the Privy Council ruled that the statement obtained from the accused given to police before the arrest was improperly admitted into evidence under Section 162 of the Code, as amended and substituted by Section 34 of the Code of Criminal Procedure Amendment Act, 1923. The Privy Council, in this case, expressed their opinion that the statement of the accused was partly confession and partly explanation of his innocence. In this particular case, it was determined that the processes did not fail to provide justice.

Despite the statement’s rejection, other evidence proved the deceased’s presence at the accused’s house, which was the statement’s entire purpose.

Section 26: Confession by the accused while in custody of police not to be proved against him.

Section 26 provides that no confession taken in police custody can be used against a person unless it was made in the immediate presence of a Magistrate. Additionally, this Section also specifies that “magistrate” excludes the head of a village discharging magisterial duties, in the Presidency of Fort St. Gorge or elsewhere, unless such headman is a magistrate exercising magistrate authority under the provisions of the Code of Criminal Procedure.

Ram Narayan Singh vs. State of Bihar (2000)

In this case, the Supreme Court held that the confession made by the accused person to a police officer after being promised leniency was inadmissible, under Section 26. The court held the promise of leniency was a promise that was sufficient to give the accused person reasonable grounds for supposing that by confessing, he would gain the reasonable advantage.

Section 27: How much information received from the accused may be proved

This Section acts as an exception to Sections 25 and 26, where both Sections protect the accused from self-incrimination and abuse of power by the police authority. Section 27 provides that, “when any fact has been discovered in consequence of the information from a person accused of any offence, in the custody of a police officer, whether that information amounts to the confession or not, as relates directly to the facts thereby, discovered, may be proved.” In other words, it states that if the accused has made any confession while in police custody that leads to the discovery of any relevant information or facts, such confession will be considered admissible in the court.

In the case of Mohan Lal vs. Ajit Singh (1978), the accused disclosed the location of the stolen goods, leading to their recovery when he was arrested, and later on the things were discovered within a few days at the location mentioned by the accused. The court regarded the statement as important, and the accused was found guilty of murder and robbery based on the evidence presented. Further, the court states that the accused’s statement cannot be utilised against the co-accused.

Section 28: Confession made after removal of impression caused by the inducement, threat or promise, relevant.

Section 28 addresses the admissibility of confessions made after the removal of inducement, with the admissibility of the confession made after removing inducement, threat, or promise. This section is an exception to the general rule provided under Section 24.

State of Bihar vs. Ram Bahadur Rai (1958)

In this case, the Supreme Court reiterated that the prosecution has the burden of proving that the confession was made voluntarily after the removal of any inducement. The court also clarified that the test of admissibility is not whether the inducement was successful but whether it had a lingering effect on the accused at the time of the confession.

Section 29: Confession otherwise relevant not to become irrelevant because of the promise of secrecy, etc.

This section provides that, any confession that is otherwise relevant does not become irrelevant because of the promise of secrecy, etc. The main objective of this section is to ensure that the relevant confessions are not excluded solely based on how they were obtained.

State of Kerala vs. Rajan (1981)

In this case, the Kerala High Court emphasised the importance of carefully examining the circumstances surrounding the confession. The court stated that “the court must consider all the facts and circumstances of the case to determine whether the confession was freely and voluntarily made.” The court also highlighted the need to consider the time gap between the inducement and the confession, the conduct of the accused, and the presence of any independent corroboration.

Section 30: Consideration of proven confession affecting the person making it and others jointly under trial for the same offence.

This section applies in circumstances where multiple individuals are accused of the same offence. This provision makes an exemption to the common rule of confessions as evidence that can only be used against the person who made them and not the others. It states that when many people are tried together for the same offence, a confession given by one is admissible against all of them.

Emperor vs. Nanhoo Singh (1930)

The court held that a confession made by one co-accused person is not sufficient to convict another co-accused person, but it can be taken into consideration as corroborating evidence.

Judgement of the case in Sahoo vs. State of UP (1965)

In the case of Sahoo vs. the State of U.P. (1965), the judgement delivered by the court upheld the conviction and sentence imposed by the High Court. The appellant, Sahoo was found guilty of the murder of Suderpatti based on the evidence presented, including an extra-judicial confession. In the case of Sahoo vs State Of U.P. On 16 February 1965, the The oral statement made by the accused was admissible under Section 17 of the Evidence Act. The court further stated that confession need not be made by the accused to someone else, mere muttering is sufficient.

Rationale behind the judgement

The nature of the evidence in the present case is wholly circumstantial, except for the extra-judicial confession. Before applying the present circumstances to this rule, the Court examined the confession of the accused, which was extra-judicial. The two issues relating to the confession were identified by the Court as distinct-

firstly, the admissibility of a confession where there has been no communication with another; and
secondly, the probative values of such confessions.

The common line of argumentation used is that the implicit idea of a confession is that it is communicated to another person. Hence, a confession made to one’s self is not a confession. Section 24 to Section 30 of the Evidence Act deals with the issue of the admissibility of the confession but does not define the word ‘confession’. The Court referred to the case of Pakala Narayana vs. R, in which the confession has been defined as ‘a statement made by an accused which must either admit in terms the offence or substantially all the facts which constitute the offence.’ However, that raised the question of the definition of a statement. The dictionary meaning of the word ‘statement’ is the ‘act of stating, reciting or presenting verbally or on paper’. Plainly from this definition, communication with another does not appear as a necessary ingredient of a confession. The Court further deliberated that there was no particular reason in law that communication with another would be held to be an essential ingredient.

The Court further illustrated that an admission or confession can be admitted so long as it is proved. The illustration is of a person A, who kills person B and records the event in his diary without communicating it to another. In such a case, the statement of the accused can be proved and hence will amount to a confession made by him. The same principle applies in the case of an oral statement hence concluding that communication to another is not a necessary ingredient.

The Court also referred to the case of Bhogilal Chunilal Pandya vs. the State of Bombay (1958), the issue in this case was whether a former statement made by a witness falling within the meaning of Section 157 of the Evidence Act had to be communicated to another before being used to corroborate the testimony of another witness. In this case, the Court concluded that the word ‘statement’ used in Section 157 refers only to ‘something that is stated’ and therefore held a statement which admits guilt, whether communicated or not amounts to a confession. The Court held that no matter the nature of a confession soliloquy it is a direct and relevant piece of evidence. It may be presumed that as it is a declaration against the interest of the person making it, it is likely to be true. However, before such evidence is accepted it must be established using clear and logical evidence what the exact words used by the accused were. Moreover, even if such is proven evidence of such nature, keeping in mind the principles of prudence and justice, the Court concluded that it cannot be the sole ground of conviction and holds only as a corroborative piece of evidence. Therefore, in the present case as the words of the accused were heard and his confession could be proved using the witnesses the Court held it to have corroborative value.

The Court identified the circumstantial evidence to be the following-

The illicit connection between the accused and the deceased;
The quarrel between the accused and deceased on the evening of Janmashtami day when the deceased was persuaded to go back to the home of the accused by the persuasion of their neighbour, namely, Mohammed Abdullah;
The deceased had last seen in the company of the accused;
During a crucial night, 3 persons namely the accused, the deceased, and the accused’s second son Kripa Shanker slept in the room inside the house;
The next morning when Kripa Shanker was asked by his father to go out of the house to attend nature’s call he heard a gurgling sound and saw his father leaving the house muttering something to himself; and
The rest of the witnesses saw the accused leaving the house at about 6 A.M. muttering that he finished Sunderpatti and hence ended their daily quarrels.

Considering the circumstantial evidence, the Court was led to the only conclusion that the accused must have murdered no reasonable alternative hypotheses were presented. Here, the Court reaffirmed the rule of circumstantial evidence which is that if the chain of circumstances from which the conclusion of guilt is to be drawn is so complete that it excludes any other possible hypotheses.

Conclusion

By the end of this article, we learned about admission and confession under the Indian Evidence Act, especially confession. Both admission and confession play important roles in the legal system, especially in civil and criminal matters. While both admission and confession in the Evidence Act need relevant remarks, they have different features and ramifications.

Admission, unlike confession, encompasses statements made in civil actions that either can be in favour of or against the person making them. Importantly, admission can be made in various settings, including encounters with the authorities or even during police custody. Admission may or may not be convincing proof and can be given by either the parties concerned or a third party. In contrast, confessions in criminal cases represent a direct acknowledgement of guilt and substantial admission regarding the events surrounding the crime, serving as pivotal evidence in legal proceedings. Furthermore, confessions not only implicate the confessing individual but also have implications for co-accused parties, underscoring their significance in establishing culpability and legal accountability. They hold a higher evidentiary value when compared, and are generally considered satisfactory proof of the accused’s guilt.

Frequently Asked Questions (FAQs)

What do you mean by admission under the Indian Evidence Act, of 1872?

Admission is a ‘statement, oral, or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstance’. Admission as specified in Sections 17 to 31 of the Indian Evidence Act, of 1872. Sections 17 to 23 address ‘general admission’, whereas Sections 24 to 31 address ‘confession’. Admission in evidence can be self-harming or self-serving’. Section 17 defines admission as ‘a statement, oral or recorded, which indicates any conclusion as to the fact in question or pertinent facts, and which is made by any of the people, and under the conditions, hereby indicated’.

What is the relevancy of the confession?

A confession is a substantial piece of evidence against its maker, and if it is properly recorded, there are no legal problems. It would be sufficient to condemn the accused who has confessed, however, the court requires confirmation before acting on it, out of prudence.

What is extra-judicial confession?

Extra-judicial confession means ‘a confession that is not made in the immediate presence of a Magistrate’. This type of confession is not specifically defined in the Evidence Act, of 1872 and therefore carries less weight as evidence.

References

Ahmed G. H. Ariff vs. Commissioner of Wealth Tax (1971)

By

Rachit Garg

-

July 8, 2024

0

This article is written by Meenakshi Kalra. This article delves into an analysis of the facts, issues raised, arguments put forth and judgement passed in the case of Ahmed G. H. Ariff vs. Commissioner of Wealth Tax (1969). This case clarified that the right to receive income from a Wakf, even if it’s intended for maintenance and support, is a taxable asset under the Wealth Tax Act, 1957.

Table of Contents

Introduction

The case of Ahmed G. H. Ariff vs. Commissioner of Wealth Tax (1969) primarily revolves around the Wealth Tax Act, 1957 (hereinafter referred to as the WT Act) and tries to interpret the purview of Section 2(e) (definition of assets) of the WT Act. In the present case, the dispute arose when the appellants were taxed on their share of income arising out of a Wakf property that was set up by a Hanafi Muslim for their support and maintenance after his death.

The case reached the Supreme Court through appeals that were filled by the aggrieved appellants, who felt that their right to receive income from a Wakf-alal-aulad was being curtailed and was being termed as an “asset” incorrectly by the wealth tax officer.

This matter attempted to find solutions to issues related to the computation of wealth tax in India, by highlighting the complexities and challenges that might occur while trying to interpret these laws. In any country, taxes are one of the main sources of revenue for the government and for the development of the financial framework. Proper implementation of these taxation laws also plays an important role in making sure that there is social equity and the economy remains regulated.

By examining the facts, issues, and judgement of this case, it has been attempted to interpret the implications of wealth tax and the legal landscape surrounding it.

Details of the case

Appellants

Ahmed G.H. Ariff & Others

Respondents

Commissioner of Wealth Tax, Calcutta

Case type

Civil Appeals Nos. 2129 to 2132 of 1968.

Court

Supreme Court of India

Bench

Chief Justice J.C. Shah, Justice A.N. Grover, Justice V. Ramaswami

Judgement Date

20th August, 1969

Equivalent citations

1971 AIR 1691, 1970 SCR (2) 19, AIR 1971 SUPREME COURT 1691, 1971 TAX. L. R. 952

Legal provisions involved

Section 2(e) of Wealth Tax Act, 1957
Section 5 of the Wealth Tax Act, 1957
Section 27 of the Wealth Tax Act, 1957
Section 3 of Mussalman Wakf Validating Act, 1913

Background of the case

This case is a result of appeals from the judgement and order dated 4th December, 1964 in Tax Matters Nos. 69, 62 and 64 of 1963 delivered by the High Court of Calcutta.

A Wakf-alal-aulad, which in simple words means a family trust, was created by a Hanafi Muslim, Golam Hossain Kasim Ariff (also referred to as the settlor), to secure benefits for his wife and his three sons and heirs after his death. It was further stated that if the descendants of the settlor die without making a will, then the benefits that were reserved for his family and descendants were to be given to the poor Muslims and Sunni community, for their betterment, as the ultimate benefit.

The appellants were already paying income tax on the amount and benefits that were being given to them under the deed of Wakf. In 1957, the WT Act was enacted and now, along with the income tax, the appellants were required to pay wealth tax as well. This would be assessed by the Wealth Tax Officer according to the income received by them and their share in the Wakf property during the assessment years 1957-58 and 1958-59.

The Wealth Tax Officer in the present case assessed the worth of the immovable property of the Wakf estate as 20 times that of the annual municipal valuation. Further, the net wealth of each assessee was assessed to be one sixteenth of the total worth of the immoveable property in the Wakf estate.

Facts of Ahmed G. H. Ariff vs. Commissioner of Wealth Tax (1971)

The settlor, by a deed dated 19th November, 1928 and further by a deed of rectification dated 5th July, 1930, which was altered, chose himself as the only Mutawalli (manager of a Wakf) of a Wakf-alal-aulad established by him for his properties located in Noormul Lohia Lane and Armenian Street in Calcutta. In his deed, he stated that after his death, his sons, along with his widow, would become Mutawallis together.
It was done with the purpose of securing benefits for his wife, sons and their successors. They would all receive a share of the net monthly income from the property. He died on 1st January, 1937 and was survived by his widow and his three sons, who became the appellants in the present case.
The benefits given to them would be determined by clause 5 of the modified Wakf deed, which stated that- following the payment of all charges, such as establishment charges, collections charges, revenue taxes, costs of repairs, law charges and other costs for the maintenance and management of the Wakf property, the net income arising out of the property shall be used by the Mutwalli or Mutwallis. In this case, it would be in a way where:
1. One fifth of the net income shall be paid to Golam Hossain Kasim Ariff, by way of monthly instalments
2. One sixth of the net income shall be paid to all three sons for their lifetime, by way of monthly instalments.
3. One tenth of the net income shall be paid to the wife of Golam Hossain Kasim Ariff for her lifetime, by way of monthly instalments.
Further, it was stated that the net income arising out of the sons’ share of the said properties, was to be invested after deducting the necessary expenses for their education and sustenance till they attain the age of majority. Such investment was to be made in appropriate securities or by investing in properties in Calcutta. After the sons attain majority, these properties and securities shall be transferred to them.
It was also stated in the deed that if the settlor’s descendants die without a will, then all the benefits that such family and descendants are entitled to, shall be given to poor Muslims and Sunni community for their help as the ultimate benefit.
In 1957, the Wealth Tax Act came into force, under which the appellants, along with paying the income tax, were also said to be liable to pay a wealth tax on the income from the Wakf estate for the assessment years 1957-58 and 1958-59. The wealth tax officer, in assessing the income from the estate, determined that the total value of the immovable property was estimated at 20 times the annual municipal valuation and each assessee was to be assessed at one sixteenth of the value of the property as their net wealth.
The appellants, aggrieved by this, approached the Appellate Assistant Commissioner of Wealth Tax and, further, the Income Tax Appellate Tribunal, but the appeals were dismissed and no dispute was raised. The case then reached the High Court of Calcutta by way of reference under Section 27 of the WT Act. Here it was held that the right of the assessee to receive a specified share of the Wakf income is subject to wealth-tax and the decision was made against the assessee. Appeal was filed with the Supreme Court against the judgement of the Calcutta High Court in the present case.

Issues raised in the case

Whether the assessee’s right to obtain a share of net income arising out of the Wakf estate is an asset, monetary value of which is assessable as wealth tax?

Arguments of the parties

appellant

It was argued by the appellants that the right granted to them by the Wakf deed was merely a right to an annuity given under Section 2(e)(iv) of the WT Act, and was therefore not an asset that should be assessed as a wealth tax.

Further, it was argued that the income that was payable to the beneficiaries was non-transferrable, as stated under Section 6(d) (what may be transferred) of the Transfer of Property Act, 1882 (hereinafter referred to as TPA, 1882) and was for their maintenance and sustenance. The income and benefits conferred on them had no market value. Thus, it could not be incorporated into the net wealth of the beneficiaries. Moreover, the appellants claimed that the income received by them was for the purpose of maintenance under the Wakf deed and hence, they have the right to maintenance.

The main argument of the appellants was that their right to receive income under the deed cannot come under the meaning of “property”, even if it is taken in a broad and liberal manner. As per the origin of the rule, which is stated by the prophet of Islam, once the property is declared Wakf, all rights of the Wakif end there and are placed in God. Merely the ownership is transferred to the Mutawalli, and that too in the sense that such a Mutawalli is basically the manager of the property and not a trustee. The Mutawalli, without obtaining the prior authorisation of the court, has no rights to sell, mortgage or exchange the Wakf property, unless the Wakf deed states otherwise. The Wakf estate lacks the basic characteristics of property, as the Mussalman Wakf Validating Act, 1913, states that in order to be in compliance with the provisions of the Act, a Hanafi Muslim should only use the income from the estate to maintain and support himself, thus making it non-transferable and non-liable to an attachment. If the income is used otherwise, then it would be against the provisions laid down in the Act and would become transferable and attachable. Hence, clause 5 of the Wakf deed should be interpreted to mean that the share of income given to the beneficiaries is for their maintenance and support. Otherwise, the deed as a whole would become void.

Respondent

It was argued from the side of the respondents that the share of net income of the appellants, derived from the Wakf property, fell under the scope of the term “asset” under Section 2(e) of the WT Act. It was not merely a right of the beneficiaries to an annuity. Rather, there was a clear demarcation between the right of an assessee to receive a share of income from the Wakf properties and an annuity.

Further, it was argued that even if the asset was of non-transferable nature and had no real market value, it was still to be judged by the Wealth Tax Officer on the grounds that it could be sold in an open market and the value assessed accordingly. The sale of the right to share in the income does not mean the actual sale of the right. It means that it is assumed that if there was a sale that was to take place, then what price would such a right fetch in a market.

Moreover, Section 5 of the WT Act lists certain assets that are exempt from wealth tax. These assets alone are exempt from tax and the right to maintenance. The assets, as claimed by the appellants, have not been mentioned under the Section. Hence, they are not liable to be exempted.

Laws involved in Ahmed G. H. Ariff vs. Commissioner of Wealth Tax (1971)

Section 2(e) of Wealth Tax Act, 1957

This Section describes the term “assets” to mean all property which may be movable or immovable in nature and also provides for what is not included under assets:

Under sub-clause (1), with regards to assessment year beginning on 1st April, 1969 or prior to it, the scope of the term does not include-

agricultural land and growing crops, grass, standing trees on such land.
any building that is owned or occupied by a cultivator or receiver of revenue/rent arising out of agricultural land
animals
the right to annuity, where the terms state that it cannot be converted into a lump sum payment.
any interest in property where such interest is not for more than 6 years from the date the interest was acquired.

Under sub-clause (2), with regards to assessment year beginning on 1st April, 1970 and any year succeeding it, but before 1st April 1993 it does not include-

animals
the right to annuity (except the ones that were bought by the assessee or anyone else who entered into a contract with the assessee) that cannot be converted into a lump sum payment.
any interest in property where such interest is not for more than 6 years from the date the interest was acquired.

With regards to the assessment year beginning on April 1, 1981 and April 1, 1982, item number (i) of sub-clause (1), which talks about agricultural land and growing crops, grass, and standing trees on such land shall be replaced by:

agricultural land except the land being used to grow tea, coffee, rubber or cardamom.
any building that is owned or occupied by a cultivator or by someone who receives rent/ revenue arising out of agricultural land except land being used to grow tea, coffee, rubber or cardamom.
animals

With regards to the assessment year beginning on April 1, 1983 or any assessment year after that, item number (i) of sub-clause (1) which talks about agricultural land except the land being used to grow tea, coffee, rubber or cardamom shall be replaced by:

agricultural land and growing crops (including fruits growing on trees), grass and standing trees on such land.
building/ buildings that are owned or occupied by a cultivator or receiver of rent or revenue arising out of agricultural land.
animals

For the State of Jammu and Kashmir, the assets listed in items (i) to (iii) of sub-clause (1) (i.e (i) agricultural land and growing crops, grass, standing trees on such land, (ii) any building that is owned or occupied by a cultivator or receiver of revenue/rent arising out of agricultural land, (iii) animals) are to be used instead of those listed in item (i) of the above sub-clause (2) (i.e (i) agricultural land and growing crops (including fruits growing on trees), grass and standing trees on such land).

Section 5 of the Wealth Tax Act, 1957

This Section states the exemptions that might be given in the case of listed assets where the assessee is not liable to pay any wealth tax and those assets shall not be counted in the net wealth of the assessee:

Wealth tax shall not be payable on a property that is held by the assessee as part of a trust or any other legal obligation which is being used for any charitable or religious purpose in India.

This does not include the property being used in a business unless it is a business stated in Section 11(4A) of the Income Tax Act, 1961 such business should have separate books of accounts or it should be a business run by an institution, fund, or trust as stated in Section 10(23B) or Section 10(23C) of the Income Tax Act, 1961.

Wealth tax shall not be payable by the assessee for the coparcenary property of a HUF of which he is a member.
Wealth Tax shall not be liable to be paid on a building that was occupied by a Ruler, provided that it was his official residence immediately before the Twenty-sixth Constitutional Amendment Act, 1971, as declared by the Central Government under paragraph 13 of the Merged States (Taxation Concessions) Order, 1949, or paragraph 15 of the Part ‘B’ States (Taxation Concessions) Order, 1950.
Wealth tax shall not be payable on jewellery that was in the hands of a Ruler, provided it was not his private property and was given the status of an heirloom before the enforcement of the WT Act by the Central Government. If there was no such recognition made, then the Board may, according to the rules laid down by the Central Government, recognise it as an heirloom during the first assessment to wealth-tax.

Provided that,

The jewellery shall be permanently kept in India, except when the removal of such jewellery was authorised by the Board.
Rational and practical steps must be taken to keep the jewellery intact and in its authentic condition as far as possible.
Genuine provisions shall be made in favour of the officer of Government authorised by the Board to conduct examination of the jewellery at all times.

If the conditions are not conformed with, the Board can take back the acknowledgement of the jewellery as an heirloom, retrospectively, with effect from the date of the beginning of clause (b) of Section 5 of the Rulers of Indian States (Abolition of Privileges) Act, 1972 (now repealed), by stating its reasons in writing. If the recognition is withdrawn, the Ruler would be obligated to pay wealth tax for all the assessment years for which an exemption was given.

The fair market value of the jewellery for the above clause shall be the value of the jewellery on the withdrawal date of each previous assessment year.

Further, the aggregate of the wealth tax to be paid for the jewellery, after the withdrawal of recognition shall not be more than 50% of its fair market worth on the valuation date applicable to the assessment year in which its acknowledgement was withdrawn.

Wealth tax shall not be payable if the assessee is a person of Indian origin (or Indian citizen), who normally resides in a foreign country, but has returned to India with an intention to live there permanently. In such a case, the assets and money bought or acquired by him (within one year of his returning to India and anytime after returning) are exempt from falling under the ambit of asset. This exemption applies for seven consecutive assessment years, beginning from when the person returned to India.

A person is said to be of Indian origin if he, his parents or any of his grandparents were born in undivided India.

“Money” refers to the money present in the Non-Resident (external) Account in an Indian bank, conforming to the provisions stated under Foreign Exchange Regulation Act, 1973, at the time of the person’s return to India, and is considered to be money brought into India.

Wealth tax shall not be payable if a house or part of a house or a plot of land is provided, if the plot of land is up to 500 square metres or less and belongs to an individual or a Hindu undivided family.

Section 27 of the Wealth Tax Act, 1957

This Section talks about reference to the High Court, wherein either the assessee, the Chief Commissioner or the Commissioner, can refer any question of law arising out of an order in which they were served. The application has to be made in the prescribed form within 60 days of the date on which the order was served (before June 1, 1999), under Sections 24 (appeals) or 26 (appeals from orders of enhancement) or 35(1)(e) (rectification of mistakes). If the application has been made by the assessee, he/she will be required to submit a fee of two hundred rupees, along with the application. The Appellate Tribunal is empowered to refer to the High Court any question of law arising out of the said order, according to the other provisions stated in the Section. The Appellate Tribunal is required to make a statement of the case within 120 days of receiving the application for reference and refer it to the High Court.

If the Appellate Tribunal is convinced by the reason and the assessee has shown sufficient proof as to the failure to submit the application within the 60 days time period, the Tribunal may allow an extension up to 30 days.

The Appellate Tribunal may reject the application for reference if there is no question of law that has arisen or if the application is time barred. If the applicant is aggrieved by the refusal, then within 90 days from the receipt of such a refusal, he may approach the High Court. The High Court can direct the Appellate Tribunal to state the case to the High Court if it feels that the order of the Appellate Tribunal was incorrect.

If the Tribunal states that no question of law arises and refuses the application of the assessee, and the assessee withdraws the application within 30 days of such refusal, then he is entitled to a refund of the fees paid by him.

If a conflict arises between the decisions of the high courts regarding the question of law upon which the reference application is made, the Appellate Tribunal can directly make a statement of case and present it to the Supreme Court through its President.

If sufficient cause is shown, then the High Court may allow an application to be filed even after the expiration of 90 days.

The statement of case made to the High Court or the Supreme Court shall include facts, the conclusion reached by the Appellate Tribunal and the question of law on which the case is based.

If the High Court or the Supreme Court feels unsatisfied by the statement of the case, as stated by the Tribunal, and is unable to infer the question of law, then it may direct the Tribunal to make changes in such a statement.

The High Court or the Supreme Court, after hearing the case, may decide on the question of law raised and, if needed, modify the question of law, decide upon it and give a judgement stating the grounds on which the decision was reached. A copy of the same is to be sent to the Appellate Tribunal with the seal of the Court and the signature of the Registrar, after which the Tribunal shall pass any other orders that are important to dispose of the case in accordance with the judgement.

The cost of reference made to the High Court or the Supreme Court, excluding the fees, shall be decided by the court.

Section 3 of Mussalman Wakf Validating Act, 1913

Section 3 talks about the power of Muslims to create certain Wakfs. According to this Section, any person professing Muslim faith can create a Wakf, but it should be in consonance with the Muslim law and for the following purposes:

It is created for his family’s support and maintenance which include children or descendants.
It is created by a Hanafi Muslim for his own support and maintenance for his lifetime or to replay the debts out of the rent or revenue from the property.

The ultimate benefit arising out of the Wakf must be secured and set aside for the poor, either expressly or impliedly, or the benefit must be for a religious, pious or charitable purpose of permanent nature recognised by Muslim Law.

Judgement in Ahmed G. H. Ariff vs. Commissioner of Wealth Tax (1971)

The Supreme Court stated that the rights and benefits in favour of the sons to receive a share of income arising out of the Wakf property were property or an interest in property and it fell under the definition of “assets” under Section 2(e) of the WT Act. Such enjoyment of property was not limited to a period of six years and hence, no exemption could be claimed under the exception contained in Section 2(e).

It was further noted by the Supreme Court that the petitioners’ claims that their right was merely a right to an annuity were incorrect and that the right to share of the income under the Wakf deed rather fell under the scope of an asset and thus, could be assessed upon its value.

The Court also noted that in cases where the value of the asset could not be determined, it was to undergo valuation by the Wealth Tax Officer. The value was to be estimated in such a way as if it were being sold in an open market.

The Supreme Court delivered its judgement in this case, by dismissing the appeals, with costs, filed before it, and stating that the appellants were liable to pay the wealth tax on the share of income received by them, as it fell under the definition of assets.

Rationale behind the judgement

The main point of contention in the case was whether the right to receive income from a Wakf-alal-aulad falls under the scope of the term “asset” given under Section 2(e) of the Wealth Tax Act, 1957.

The Court highlighted that the term “asset” as defined under the WT Act, is broad and includes all types of property, whether movable or immovable and therefore, it includes a wide range of interests that can be taxed under the scope of this Act. The appellants’ argument that the right to receive income cannot be valued was also rejected by the Court, and in reply, it was stated that in case the asset cannot be valued, then it is the job of the Wealth Tax Officer to assume and estimate the value of the asset, based on which it would be priced in an open market.

The right to receive a share of income was examined in this case. The Court concluded that the right of the appellants was not merely a right to maintenance. Rather, the income from the Wakf estate was being used by them for more than just maintenance and support, making it a proprietary interest with tangible value. Due to this, the income received from the Wakf estate could be said to have the characteristics of a property, making it an asset and thus, it was held to be taxable under the WT Act.

Relevant judgements referred to in the case

Vidya Varuthi Thirtha vs. Balusami Ayyar (1921)

In the case of Vidya Varuthi vs. Balusami Ayyar (1921), the Bombay High Court stated that as soon as a Wakf is created and ownership is transferred to the Mutawalli, the right to Wakf is extinguished on the property on which it was created. The rights are taken from the Wakif and placed in the hands of the Almighty and because the Mutawalli has no rights in the property from which the Wakf was created, he cannot be called a trustee as well.

Abdul Karim Adenwalla vs. Rahimabai (1945)

In the case of Abdul Karim Adenwalla vs. Rahimabai (1945), the Bombay High Court highlighted the difference between a Hanafi Muslim settlor saving the income arising out of the Wakf property for his own support and maintenance during his lifetime, and saving income from the property for absolute use during his lifetime, which suggests that the income might be used for more than just his maintenance and support. Saving the income only for maintenance and support is permitted under the Mussalman Wakf Validating Act, 1913 and it is not considered to be transferable property under the TPA, 1882. It is also not considered attachable under the Code of Civil Procedure, 1908. However, if the income is used for more than just maintenance and support, it will attract Section 6 of TPA, 1992 and become transferable and also attachable under Section 60 of the CPC, 1908.

The Commissioner, Hindu Religious Endowments, Madras vs. Shri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954)

In the case of The Commissioner, Hindu Religious Endowments, Madras vs. Shri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954), the Supreme Court of India stated that property should not be interpreted in a narrow manner but should be given a wide and flexible interpretation to include all types of properties as well as different types of interests that are vested in different types of properties. Further, it was stated that even though a Mahantship is not heritable, like an ordinary property, it still has a few characteristics that match “property,”, which is enough to bring it under the scope of Article 19(1)(f) (right to property; now omitted).

Commissioner of Wealth Fax, Bombay City vs. Purshottam N. Amersey and Another (1968)

In the case of Commissioner of Wealth Fax, Bombay City vs. Purshottam N. Amersey (1968), the Bombay High Court stated that the definitions of “assets” and “net wealth” under Section 2(e) and Section 2(5)(m), respectively, were broad and extensive provisions. The definition of assets provided under the Act covers all property, whether movable or immovable and also lists down the items that are excluded from its ambit.

Analysis of Ahmed G. H. Ariff vs. Commissioner of Wealth Tax (1971)

The judgement in the case Ahmed G.H. Ariff & Ors vs. Commissioner Of Wealth Tax (1969), highlighted the fact that the right to receive income from a Wakf-alal-aulad is an asset under the definition provided under the Wealth Tax Act. Hence, it is liable to be assessed during the assessment of income for the purpose of determining the amount of tax payable by the assessee.

The Supreme Court considered various types of interests that fall within the definition of “property” before reaching its verdict. It concluded that the right to receive income from a Wakf property was indeed an asset under the WT Act. Firstly, it considered the broad definition of “assets” as provided by the Act, which included all types of properties and interests, both movable and immovable in nature and stated that just because the right to receive income does not fall in the conventional definition of physical property does not mean that it cannot be treated as an asset. The WT Act is by design highly inclusive and encapsulates various types of property interests to ensure extensive scope for dealing with taxation matters. The Court emphasised that the legislative intent behind the WT Act was to include not just physical, tangible properties, but also intangible interests that hold economic value. The right to receive income from a Wakf property holds serious economic worth and not making such a right taxable would be against the purposes and objectives of the WT Act. Therefore, the right to receive income from a Wakf property can be compared to how rental income from property or dividends from shares are considered assets. Secondly, the Court noted that income arising from the Wakf estate in the present case is not a right to annuity, nor is it a right to maintenance, as the use of income from the estate went beyond support and maintenance. This cleared up any doubts about whether or not the income from the estate would be exempted under Section 2(e) of the WT Act. Thirdly, upon further analysis, it can be stated that this judgement strived to reinforce the fact that the WT Act had a wide scope, as it tried to cover all types of properties and interests within its ambit and tried to maintain fair and reasonable taxation practices.

This judgement is also important from a jurisprudential point of view, as it is based on liberal interpretation of statutes. This type of interpretation is necessary, since it provides flexibility and helps in promoting the purpose of the WT Act, that is, to address the ambiguities and inequalities in wealth of individuals with significant and weighty investments, and to bridge the gap between the rich and the poor as it helps in making sure that there is minimal evasion of tax.

Conclusion

Wakfs were developed for the fulfilment of charitable and pious purposes. Even though there is no mention of Wakf in the Holy Quran, the idea of Wakfs finds its roots in Islamic law. Under Muslim law, the ownership of the Wakf vests in the Almighty and the benefits from the Wakf property are given to the poor for their development and support.

This case tries to answer the question of law regarding whether the right to receive a share of income from a Wakf estate would be taxable under the Wealth Tax Act as an asset after the relevant assessment year. The Court concluded by stating that the income received from a Wakf-alal-aulad in the present case, indeed falls under the purview of the term “asset”, as even though the right in question was related to religious purposes and personal maintenance and support, it still held value and hence would be taxable.

Frequently Asked Questions (FAQs)

Has the wealth tax been abolished?

Yes, the wealth tax has been abolished. This was done by way of the 2015 budget introduced on 28th February, 2016, which was applicable for the financial year of 2015-2016. This move was made by the then Union Finance Minister, Arun Jaitley. The need to abolish the said tax arose because the disadvantages far outweighed the benefits of collecting wealth tax.

Whom did wealth tax apply to?

The wealth tax applies to individuals, a Hindu undivided family (HUF) or a company. Other entities are not required to pay any wealth tax on their assets. Though the individuals associated with the other entities may be required to pay wealth tax on the “assets”, as defined in the Act under Section 2(e).

How was wealth tax charged?

Section 3 of the Wealth Tax Act, 1957, talked about the charge of wealth tax. According to this Section, a wealth tax would be imposed every assessment year, beginning on 1st April, 1957 but before 1st April, 1993. The tax would be chargeable on the net wealth of all individuals, Hindu undivided families and companies, on the date of valuation. According to the other provisions laid down in the WT Act, the wealth tax would be subject to payment every assessment year, beginning on 1st April, 1993 but before 1st April, 2016. The tax would be paid on the net wealth of every individual, Hindu undivided family and company at the rate of 1% of the amount by which the net wealth exceeds ₹15 lakh, on the date of valuation. In every assessment year beginning on and from 1st April, 2010 wealth tax with respect to the net wealth payable, would be increased from 15 lakh to 30 lakh.

What is the right to property?

Article 19(1)(f) was omitted in 1978 by the 44th Amendment Act. Before that, it enshrined the right to property, which was a fundamental right. This right was then added under Article 300A as a constitutional right instead. It protected a person’s rights arising out of his property, such as the right to hold, acquire or dispose of his property.

References

https://indiankanoon.org/doc/115197/
https://www.indiacode.nic.in/bitstream/123456789/3123/1/a1957-27.pdf
https://groww.in/blog/wealth-tax-in-india
https://www.nipfp.org.in/media/pdf/books/BK_9/Chapters/3.%20Legislative%20History.pdf
MULLA, Commentary on Mohammedan Law, (2nd Ed, Dwivedi Law Agency, 2009, Allahabad)

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Federalism under the Indian Constitution

By

Anubhav Pandey

-

July 8, 2024

0

This article was written by Uzzair and further updated by Arnisha Das. It talks about federalism at length under the Indian Constitution, drawing important instances from its roots in colonial legislation and consecutive development balancing intergovernmental disputes. It also establishes cooperative federalism as an effective methodology in the governance of a diverse nation.

Table of Contents

Introduction

India’s federal system is about 76 years old, as compared to the federal systems in other countries like the United States, Switzerland or Canada, which are more than two centuries old. Yet, it is recognised as the most complex of a kind for a critically diverse population in a federal framework. The national government specifically deals with vast issues like national defence, foreign relations, commerce, and currency. The state governments, on the other hand, have more roles than the federal government, encompassing aspects such as education, public safety, standards and fixing the infrastructure.

The federalism in India is notable for its quasi-federal nature of government. A quasi-federal government is often characterised by a division of power between the centre and the states, where the centre is relatively more powerful than the states. Basically, there is a combination of a central and state government of a country, but unlike the federal government, the central government has more influence over the state government. The state government can make decisions. However, the central government has the authority to intervene within it. In this article, we will shed light on the implications of this power distribution and how it affects decision-making, regional autonomy, and the overall balance of power within the country.

What is Federalism

Federalism is the structure of government, where the powers are shared between two kinds of governments. One is the Central government, and the other is smaller regional governments. It indicates the agreement between different levels of government to work together while still maintaining independence in their own spheres. In a federation, the national government and the regional government each have their own areas of authority as outlined in the Constitution.

Evolution of Federalism

Originating from the Latin word ‘foedus’ meaning ‘treaty’ or ‘covenant’ impacting the sovereign existence of different constituents of a union, the term federalism was nationalised in the late eighteenth century in the ‘Greek city-states’ of classical Greece. Earlier states used the confederacy agreement to tie up between the most powerful state and other smaller or localised states to create a balance between the power, authority and mutual dependence between the sovereign states.

Renowned academicians like K.C Wheare and A.V Dicey ascribe the meaning of federalism in their testaments as a way in which powers are bifurcated between central government and regional government for employing their powers within their own independent spheres. Also, in a completely developed federal system, powers are distributed among different governmental bodies, each with limited but equal powers. In the constitutional premise, the courts have the supreme authority to uphold and interpret the values of the Constitution in a federation.

From the late 1700s to 1860s, the power struggle between the national government and the states in the United States prevailed at large. The first American Union, formed in 1781, was a confederation with a weak central government. However, the second American Union, established in 1789, created a stronger federal government, preserving state sovereignty. The system evolved through various constitutional amendments during the Civil War period (1861-65), solidifying modern federalism.

The key conflict between federal authority and sovereign states came up in the creation of the National Bank, where the states came up as resistance. The decision of Alexander Hamilton, one of the prominent secretaries of the Congress federal government, to set up the first federal bank of the United States faced opposition from the Republicans. Subsequently, in the McCulloch vs. Maryland (1819) case, the institution of the ‘Second Bank of the United States received massive objections for imposing tax on the federal bank encroaching on state jurisdiction.

The Supreme Court bench of Sir John Marshall ruled that the authority to create the National Bank was within the powers of the national government, and the state’s tax protocol could not be enforced on the federal government. This asserted the central government’s supremacy over state interference in federal activities. Further, in Gibbons vs. Ogden (1824), the Supreme Court reinforced federal authority over state laws, particularly in matters of commerce, emphasising the national government’s power over the states. Overall, the scope of encroachment of national powers began after the Civil War, as it instigated the state to turn away from powers to save their own interests.

Gradually, federal principles were implemented in the Indian Constitution to maintain a balance of power so that each tier of government operates within its designated domain. Through many trials and errors, India has now evolved through many amendments altogether to escalate intergovernmental relations.

Classification of Federalism

Federalism can be divided into the following categories:-

Dual Federalism

In this kind of federalism, the national government and the state governments can exist with distinct powers to operate independently from each other. This demonstrates that certain responsibilities and decision-making freedoms are bestowed upon the federal government, such as managing foreign affairs, national defence, and trade. Meanwhile, states with sovereign power have more authority over other areas of the state’s internal matters, such as education, licensing, and public policy.

Cooperative Federalism

Cooperative federalism refers to a system where the federal government and state governments cooperate and work together towards achieving common goals. This approach allows for greater flexibility and innovation at the state level while still working towards overarching national objectives.

Holding Together Federalism

Holding Together Federalism is a political system in which a group of federal states come together to form a single federal entity. In that case, each member of the federation retains a significant degree of autonomy and authority. It aims to maintain units while maintaining diversity and is characterised by centralised power or decentralised governance. For example, India, Spain and Belgium have ‘holding together federalism’ in their political system.

New Federalism

In this concept of New federalism, it is possible to identify the concept that focuses on the decentralisation of powers of the federal government and the states and municipalities. It enhances a culture of devolution that supports the policymaking of a state instead of the federal government. The main proponents of this approach show that the results are more responsive in this governance since solutions to any issue can be made from the level closest to the people.

Difference between Federalism, Confederalism and Quasi-Federalism

In a federal political system, power is divided between a central authority and constituent political units (states or provinces). The U.S. is a federal republic where the Constitution divides powers between the federal government and the states. Both have their own jurisdictions and own set of powers and functions.

In Confederalism, a group of sovereign states came together to form a union to promote defence, foreign policy, and resources. A pure confederation has these features, but the member states have the right to retain their sovereignty or secede from the union. The EU is not a pure confederation but has limited powers delegated by member states.

In a quasi-federal government, the central government retains substantial powers over the states and provinces. The constitution allows the centre for intervention in state-related matters. India is an example of a quasi-federal country.

Indian federalism : brief facts and history

India has a federal system of governance that has emerged from the ancient, mediaeval, and colonial past. It thus has its roots in the federal structure long before the adoption of the Constitution in 1950.

India’s ancient history reveals a form of quasi-federalism at its core. The Mauryan and Gupta Empires, for instance, showcased a central authority with considerable autonomy granted to provinces and local regions. The Mauryan Empire (321-185 BCE), under the rule of Ashoka, had witnessed significant control of local governors in their territory. Similarly, in the Gupta Empire (320-550 CE), a strong central government existed while recognising the autonomy of the local rulers and administrative units.

The mediaeval period saw the rise of several regional kingdoms and empires, such as Cholas, Rajputs, and later Mughals. The Chola administration (9th to 13th centuries) was notable for its village autonomy and local self-government. The Mughal Empire (1526-1857) also implemented a centralised system with provincial governors (subahdars) but allowed considerable autonomy in local governance. These all worked as a precursor to the adoption of the federal principles.

The colonial period introduced a more formalised federal structure under the rule of the British. The ‘Montagu-Chelmsford Reforms’, incorporated in the Government of India Act, 1919, introduced the concept of dyarchy, which divided provincial subjects into reserved and transferred categories, thereby sharing power between the British-appointed governors and Indian ministers.

The Government of India Act, 1935 was a significant milestone that proposed a federation of British Indian provinces and princely states, though a full federation never materialised due to various political complexities. Overall, the Act laid the ground for introducing provincial autonomy and federal principles.

Dr. B.R. Ambedkar, being the chairman of the Drafting Committee post-independence, advocated for a ‘Union of States’ while giving strong power to the centre to maintain the unity and integrity of a diverse nation, such as India, with varied linguistic, cultural, and regional perspectives.

Finally, the Indian Constitution delineated powers between the centre and the states through three distinct lists: the Union list, the State list, and the Concurrent list, as outlined in Article 246 and the Seventh Schedule of the Constitution. This division of power is aimed at balancing integrity and autonomy between the central government and the state governments. The legislative link between the state and the centre is delineated from Articles 245–255 in Part XI of the Constitution. Article 245 lays down that Parliament can make laws for the whole or any part of the territory of India, while the state legislature has the similar power in the whole or any part of the state. On the other hand, Article 254 sets forth that the central legislation enacted by the Parliament would prevail over the state legislation in case of difference. In addition, provisions such as Article 356 allow the President’s rule in the states in case of failure of constitutional machinery, which indicates the inclination towards unitary power in the federal structure.

Nature of federalism in India

India has a federal structure with a single Constitution that applies to both the central and state governments. This is different from the federal systems of other countries, such as the United States, where each state possesses its own constitution. The Indian Constitution provides the nation with an intricate nature of law that makes it possible for states to address local matters while maintaining and upholding national standards.

Federalism in India was adopted mainly because of India’s colonial past and the need to embody the diversity in the nation. The Government of India Act,1935, among other things, spearheaded federalism through provincial autonomy. The drafting of the Indian Constitution after independence, as well as the findings of the Constitutional framers, strived to achieve a balance between the centre and the states. These, as a result, have enabled the limited scope of establishment of federalism in India.

The structure of federalism in India becomes distinguished and dynamic because it is tilted to the power-sharing nature between the centre and states. It embraces certain features of both federal and unitary systems of governance to accommodate the unpredicted and diverse requirements of the nation. This hybrid model of the federal system evidenced the pluralistic nature of the Indian political and constitutional framework. Thus, it enables India to face the problems of administration in a large and complex ambit and develop a standard of living through cooperative federalism.

Decentralisation of powers and the role of regional players make the centre and states’ relationship through coalition governments or other alliances of political parties more sustainable. While political devolution has its vices causing problems in governance, it has also given enhanced regional political representation and authority.

Federal features of the Indian Constitution

1. Binary Government

India has a dual government polity, which has both central government and state government operating in a parliamentary democracy. The union government works at the centre, and the state governments operate at a regional level. While the central government implements laws made by the parliament, state governments have the autonomy to make laws and policies tailored to their specific needs and circumstances.

2. Division of Powers

The Seventh Schedule of the Constitution delineates the powers and responsibilities of the central government and the state government through the following comprehensive three lists:-

Union List

The Seventh Schedule includes a list of subjects that are under the exclusive jurisdiction of the central legislature, known as the union list. It has a total of 97 subjects. For example – defence, foreign affairs, banking, and railways.

State List

It includes the subjects that are responsibilities of the state legislatures. It consists of a total of 66 subjects. For example – public health, election to State legislative assemblies, agriculture, and local governance.

Concurrent List

The concurrent list consists of subjects on which both the central and state governments have jurisdiction. It has a total of 47 subjects. For example – forests, wild animals, marriage, and adoption.

3. Written Constitution

India has one of the largest constitutions in the world, which consists of 448 articles, 25 parts and 12 schedules. The Constitution must be written without vagueness to clearly establish a distinction between the states’ and central powers.

4. Bicameral-legislation

In India, the legislature is bicameral. It has two houses, Lok Sabha and Rajya Sabha. The upper house of the parliament, which represents the states is the Rajya Sabha, and the lower house of the parliament, which represents the people in general, is Lok Sabha.

5. Rigidity with Flexibility

The Constitution contains some relatively rigid provisions while giving the leeway to amendment by a special majority under Article 368. It makes the provisions flexible in rigidity.

Non-federal features of the Indian Constitution

1. Division of power is not equal

In India, the central government has been given more power than the state government. Usually, in the federal government, powers are divided equally between the two governments.

2. Single Constitution

Another non-federal feature of the Indian constitution is that it only has a single Constitution. There are no separate constitutions for the states in India and it is applicable to both the union as a whole and the states. In a true federal system, there are separate constitutions for the state and union.

3. The constitution is not strictly rigid

Another non-federal feature of the Indian constitution is that it can be amended by the Indian parliament. Parliament, on many subject matters, does not need the approval of the state legislature to amend the constitution. As per Article 368(2), an amendment is introduced in the form of a bill in the House of Parliament, which is passed after getting a majority (two-thirds of the members present and voting) votes. However, in the true federal government, both state and central governments take part in the amendment of the constitution with respect to all matters. Therefore, those constitutions are rigid and not easy to amend.

4. Central control over states

Another non-federal feature of the Indian constitution is that the central government has control over the state government. This means that any law made by the central government has to be followed by the state government, and the state government cannot interfere in the matters of the central government.

5. Judicial Independence

India has a single & integrated judiciary, with the Supreme Court at the apex. Whenever any dispute arises between the centre and the states, the Supreme Court has the authority to resolve these disputes and ensure both levels of government function within their own constitutional boundaries.

6. Single Citizenship

In India, citizens only have a single citizenship of the whole country. However, in the true federal government, citizens are allotted dual citizenship. First, they are the citizens of their respective provinces or states, and then they are the citizens of their country.

7. Parliament does not represent the states equally

In India, the upper house (Rajya Sabha) and lower house (Lok Sabha) do not have equal representation in states. The state which is more populous has more representatives in the Rajya Sabha than the state which is less populous. However, in a true federal government, the upper house of the legislature has equal representation to the constituting states.

8. Proclamation of emergency

The President of India has been given emergency powers by the Constitution of India. However, he can exercise such powers and declare an emergency in the country under three conditions. Once the emergency is declared by the president, the central government becomes dominant, and the state governments come under the total control of it. The state governments lose their liberty, and this is against the principles of a federal government.

Relation between Union and States

While the Constitution provides a framework for cooperation between the centre and states, continuous negotiation and adjustment are required to make it practical. In recent years, the concept of cooperative federalism has gained prominence, emphasising collaboration between the union and the states. NITI Aayog, replacing the Planning Commission, fosters cooperative federalism by involving state governments in the formulation and implementation of national policies.

Article 245 demarcates the legislative powers to make laws between the centre and states with respect to the territory. However, the jurisdiction of the states is limited, for example, in the case of special jurisdiction bestowed on the Parliament to deal with the Union Territories like the Andaman & Lakshadweep group of islands. In addition, there are some residuary powers, as per Article 248 of the Constitution, entrusted upon the Parliament to create laws not included in the subject matters in one of the three lists. Notwithstanding that, the discretion of whether a specific matter falls within residuary powers or not is finally decided by the Supreme Court of India.

Federalism vis-a-vis GST Scheme

The GST (Goods and Service Tax) regime was introduced in 2017 with the intent of tax-gaining equivalence for both the centre and the states. Creating a unified national tax market, replacing the old regime of indirect taxes levied by the central and the state governments, the scheme resorts to maintaining the economic balance and well-being of the country. However, the implementation of GST has also raised concerns about its impact on the federal structure of the country.

One of the key concerns is that GST reduced the autonomy of states in taxation. Prior to GST, states had the power to levy a variety of indirect taxes such as sales tax, value-added tax, octroi and excise duty. They gained control over a significant portion of their revenue generation. With the introduction of GST, these powers were subsumed under the new tax regime, resulting in the decrease of state control over their finances.

Implications of Fiscal Federalism in GST

While the unified national market strengthens the multifaceted tax system to boost economic efficiency, the concerns of upholding cooperative federalism still remain a challenge. The raised concerns are mentioned below:-

(I) Reduced State Autonomy

The Seventh Schedule of the Indian Constitution divides legislative powers between the central and the state governments. It specifies three lists: List I contains subjects over which the central government has exclusive power to make laws; List II contains subjects over which state governments have exclusive powers to make laws; and List III contains subjects over which both the central and the state governments can make laws.

Prior to GST, states had the independent authority to levy taxes included in List II, such as sales tax and certain excise duties. After the introduction of GST, the taxes previously levied by states came under the ambit of GST. This has resulted in the decreased autonomy of states, as a major source of revenue generation is now subject to a national tax regime determined by the GST Council.

(II) Centralised Control

Article 246 of the Constitution deals with the distribution of legislative powers. After the Constitutional 101st amendment, Article 246A was inserted, dealing with the powers of special powers of the centre and the states in relation to GST. The composition of the GST Council, which is chaired by the Union Finance Minister and the representatives of all states, was established to envisage a balance of power between the centre and the states. However, the central government has a weighted voting share in the council, giving it more power to influence decisions. This has led to an unruly situation, where the states argue about the inadequate representation in the federal spirit of the Indian Constitution.

(III) Revenue Sharing Concerns

GST implementation had guaranteed a compensation scheme for five years (2017-18 to 2021-2022) to address the potential revenue loss of the states compared to the pre-GST era. The compensation amount was calculated considering the 14% annual growth in state state revenues.

The expiration of the guaranteed compensation period in 2022 has created uncertainty for state finances. Many states have argued that they are still experiencing revenue shortfalls due to GST implementation, particularly those states that were previously reliant on sectors such as textiles or petroleum products, which are now taxed under the GST regime. There have been ongoing discussions between compensation periods or devising alternative mechanisms to address revenue losses, yet a concrete agreement is yet to be reached.

Liquor, petrol, and diesel tax policy

Notably, liquor or alcoholic beverages, petrol, and diesel are currently kept outside the ambit of GST. Thus, the states continue to levy taxes over excise duty (central government) and VAT (state government) in the GST regime.

Apart from that, states have control over luxury taxes, entry taxes, tax advertisements, lotteries, betting, gambling, and other cesses related to the supply of goods and services. However, the states are apprehensive about losing control over the major source of revenue, particularly if the GST rate on these products is set high enough to reduce their tax collection. States have the freedom to determine their own excise duty and VAT rates on liquor. Despite this, it can distort prices to hinder the free movement of these goods across the country, refusing the key objectives of GST.

Significance of federalism in India

Federalism in India is immensely required for the distribution of power between the central and the state governments. It seeks to uphold the unitary features while maintaining diversity and fostering the heritage of India.

It allows different states of India to maintain their distinct identities and manage their local affairs according to their cultural, social, and linguistic variations.
Different states have varying levels of development, resources, and economic conditions. So, it enables targeted development initiatives, promotes competitive federalism, and encourages states to innovate and attract investments.
The 73rd and 74th constitutional amendments have strengthened the federal structure by empowering local self-governments in rural and urban areas, respectively.
It provides a framework for resolving conflicts between the central and the state governments as well as among states. The Supreme Court plays a crucial role in adjudicating disputes between centres and states and maintaining the federal balance.

Why is India quasi-federal

India is described as a quasi-federal nation. It strikes a balance between federalism and strong central authority. While it respects the autonomy of states, it ensures that the central government has sufficient power to maintain national unity, integrity, and effective governance. The Union List in the Seventh Schedule of the Constitution contains subjects that only the Central Government can legislate, while the Central Government has the power to legislate on subjects falling under the Concurrent List. In case of any conflict, the central law always prevails.

Article 356 empowers the centre with greater authority to proclaim an emergency in a state considering the failure of its constitutional machinery. Under Article 249, the Parliament can legislate on any subject in the State list if the Rajya Sabha passes a resolution by the votes of a two-thirds majority of the assembly necessary for the national interest.

The Central Government also has control over financial resources and the distribution of funds to states through centrally sponsored schemes, showing the financial dependency of states on the centre. Thus, India has a unique blend of federal and unitary features. It ensures that India manages the spectrum of diversity while ensuring cohesive functioning at the national level.

Constitutional debate on federalism

Dr. B.R. Ambedkar, in his historic speech in November 1949, addressed the concept of federalism in the Constituent Assembly. He highlighted specific features of the draft Constitution that aimed to create a flexible and adaptable federal system capable of functioning effectively in both ordinary times and during emergencies.

The draft Constitution included provisions that aimed to facilitate this flexibility. For instance, Article 246 distributes legislative powers between the central government and the states. However, Articles 249, 250, and 252 empower the Parliament to legislate on state-specific subjects under various circumstances. Dr. Ambedkar argued that these federal features allowed the Indian Constitution to function as a federal system in normal times, with a clear division of powers. Conversely, during emergencies or for matters of national interest (Articles 352 & 353), the central government could assume greater control. This, he believed, was essential for national unity and security. The key provisions are discussed below:-

Article 246: This article distributes legislative power between the central government and the states. The union holds exclusive authority over matters listed in List 1 (Seventh Schedule), while both the union and states can legislate on matters in List III.
Parliamentary Intervention in State Subjects: The Constitution empowers Parliament to legislate on matters under the purview of state jurisdiction in certain matters.
- Article 249 allows Parliament to enact laws on state subjects deemed to be in the national interest.
- Article 250 grants legislative powers to the Parliament over any state subject during a national emergency.
- Article 252 empowers Parliament to make laws for two or more states with their consent.
Emergency Provisions (Articles 352 and 353): The provisions for proclaiming an emergency and the authority of the central government in such situations are outlined in these articles.
Parliamentary Supremacy: The Constitution can be amended by the Parliament through a special majority. Article 368 grants special powers to the parliament to make amendments in favour of national interests and balancing federalism over time. However, the judiciary ensures that the amendments comply with the Constitution’s basic structure.

Balancing the flexibility in federalism

While Dr. Ambedkar’s speech focused on the context of the newly independent India, the concept of flexibility in federalism still remains a challenge. Critics argue that it creates a quasi-federal system that allows the central government to take greater control during emergencies or in the interest of national unity and security. This flexibility is seen as necessary to maintain overall stability and uniformity in the country. However, the potential misuse of the emergency powers outlined in Articles 352 and 353 is still argued as a way to encroach upon the state’s rights.

Challenges of federal structure in the Indian Constitution

India’s federal structure leads to disputes between the states and the centre when the states particularly feel that their autonomy is being undermined. Issues arising, such as the use of Article 356 (President’s Rule) by the central government against the state governments, have always been a contentious discussion.

The effective implementation of policies requires coordination between the central and the state governments. Part XI (256-263) discusses the measures of inter-governmental disputes between the states and the centre. Article 263 of the Constitution addresses contentions between states over any policies by establishing an Inter-State council.

Sometimes, the dual control of the state and the centre might lead to major conflicts in the following ways:-

In every state in India, there are different dynamics in the culture, education, and economic position, which bring about regionalism in the unitary features.
The central armed police forces and the intelligence agency’s influence lead to conflict in dual control. It sometimes leads to major security threats, especially in cases of elections.
Disputes arise regarding the role of Governors, who are appointed by the President and are often seen as an extension of the central government. For instance, governors are perceived to act against the interest of the state government when matters like the appointment of the chief minister or the dissolution of the state assembly come into play.
Fiscal federalism, which creates a unified market, often expresses other concerns regarding the transparency and the duration of compensation from the central government to the states for revenue losses for GST. Many states have complained of experiencing shortfalls due to GST implementation to meet their expenditure needs as well as developmental responsibilities.

Although the Planning Commission for addressing these issues was established, the same is not as effective as a whole. Further, central policies like citizenship amendment, tax policies, one-nation-one-election, National Education Policy, farm laws, and COVID-19 policies are often discussed as repugnant to the federal structure of government.

Relevant doctrines

Doctrine of Territorial Nexus

The doctrine of territorial nexus is a principle in constitutional law that concerns the jurisdictional powers of a legislative body in a federal system like India. Article 245(1) of the Constitution states that Parliament can make laws for the entire or any part of the territory of India, and a State Legislature may make laws for any part of the State. Thus, it allows the Parliament to make laws that have extra-territorial operation. The doctrine of territorial nexus is with respect to the extraterritorial operation of the state legislature if there is a reasonable connection between the object of the act and the subject matter of law.

The Apex court, in the case of State of Bihar vs. Charusila Dasi (1959), held that if there is sufficient nexus between the object of the act and the subject matter of extra-territorial application, the laws can overreach jurisdictional boundaries imposed by law. The connection between the state and the subject matter must be real and substantial.

Doctrine of Pith and Substance

This doctrine is used to resolve conflicts where a law appears to encroach upon the domain of another legislative body. In India, the Constitution delineates the powers of the Parliament and State Legislatures through the Union List, State List, and Concurrent List in the Seventh Schedule. Articles 246-254 provide the framework for the division of these powers. This doctrine provides a way to identify incidental encroachments of legislatures on matters outside the jurisdiction of the legislative bodies. It stresses on the true nature or purpose of law rather than its form while determining the subject matter and its effect. It deals with flexibility in legislative action while ensuring that the core purpose of the legislation is in compliance with the constitutional division of powers.

In the case State of Bombay v. F.N. Baksara (1951), the Supreme Court applied the doctrine while determining that the Bombay Prohibition Act, 1949, enacted by the central government upon state governments, was with the purpose of addressing inflationary pressures, thus not infringing state’s rights altogether.

Relevant case laws

State of Rajasthan vs. Union of India (1977)

In 1977, following the period of emergency in India, the newly elected Janata Party government at the centre decided to dissolve the legislative assemblies in several states that were ruled by the Congress party. The primary legal question of this case was whether the central government had the power to dissolve state assemblies and impose President’s Rule under Article 356, based solely on subjective satisfaction that the state governments did not enjoy the confidence of the citizens.

The Supreme Court held that the president’s satisfaction under Article 356 is subject to ‘judicial review’, but the scope of review is very limited. The framers of the Constitution have envisaged a federal system with a powerful central government to ensure national integrity and effective governance. The Court acknowledged that the political context in which the central government acted must exercise its power under Article 356 with caution and only in situations where there is a clear breakdown of constitutional machinery in the state.

The judgement emphasised the dominant role of the Central Government in the Indian federal structure and highlighted that the central authority can intervene in state affairs to maintain constitutional order. The Court also established that while the central government has brought power to the centre under Article 356, its actions are not beyond the judicial scrutiny.

S.R. Bommai vs. Union of India (1994)

In the landmark judgement of S.R. Bommai vs. Union of India (1994), the Supreme Court reiterated that the imposition of the presidential rule should not undermine the federal principles and the control of the states. The court interpreted the application of Article 356 in the event of the governor’s recommendation to the President, citing the loss of a majority in the assembly. A significant aspect of the judgement was the emphasis on the ‘floor test’. The Court held that the proper method to determine the majority of the government in the state legislature is through a ‘floor test’ and not based on the governor’s subjective assessment.

It further held that if the proclamation of the president’s rule is found to be unconstitutional, the dissolved state legislative assembly can be revived and the dismissed government reinstated. The judgement significantly curtailed the arbitrary use of Article 356 by the central government and restrained the misuse of this provision to dismiss state governments for political reasons.

The judgement clearly laid down that the provision can only be invoked under exceptional circumstances when there is a genuine breakdown of constitutional machinery in a state. It maintained that the power under Article 356 is not absolute and can be challenged if it’s mala fide or based on irrelevant considerations. It underscored the integrity of the government, ensuring a robust framework safeguarding states’ rights against the misuse of Article 356 by the centre.

State of West Bengal vs. Union of India (1962)

The Central Government has many powers, including powers to interfere in the functions of a state. However, it has been provided in the Constitution explicitly that the powers are granted to certain subjects where the states and central government both can legislate. Here, the central government, through its power in the union list, had implemented the Coal Bearing Areas (Acquisition and Development) Act, 1957 for coal-bearing areas, where rights were acquired by the central government of the land previously owned by the states. The state of West Bengal was the first state to challenge an action of the central government by filing a petition under Article 131.

The main contentions before the Court were that land is a subject under the state list, and sovereignty of such land is vested upon the states by the federal nature of the Constitution. On the other hand, the Central Government’s argument was that the legislative competence of the Central Government under Entries 52 and 54 of the Union List pertained to industries declared by Parliament to be of national importance. So, the regulation and development of the mines and minerals was well within its legislative domain.

The judgement of the Supreme Court was as follows –

The central government, though not specifically mentioned in the Union List, has legislative competence to enact the law under Entries 52 and 54 of the list. The structure of the Constitution, being quasi-federal, falls within the purview of the central government’s powers.
Even though land is a subject in the state list, the Act’s primary focus was on coal mining and development, which are subjects in the union list. Therefore, the central legislation was valid.
The Court held that though there is decentralisation of the state’s powers, there is a certain degree of autonomy of the centre in the interest of national importance.
The doctrine of pith and substance was explained to provide a clear methodology in the case of central and state legislation. It provided that any encroachment on the state powers was merely incidental and not the primary objective of the law.
The ruling set a precedent for future cases involving conflicts between central and state legislative powers. It provided a framework for interpreting the distribution of powers under the constitution, ensuring the national interest is balanced with state autonomy.

Shamsher Singh vs. State of Punjab (1974)

The case involved two probationary subordinate judges, Shamsher Singh and Ishwar Chand Agarwal, whose services were terminated by the state government without seeking formal approval from the governor. The Supreme Court, in a seven-judge bench ruling, held that while the governor is the head of the state, their powers are exercised on the advice of the council of ministers under Article 163, except in some situations.

Hence, despite the fact that the governor occupies an official position of governance, their decisions should be tempered with the advice of the elected government or the council of ministers. This strengthens the measure of checks and balances between the constitutional head and the elected government, where strict demarcation of their duties is maintained. This case also draws the distinction between inherent authority and supremacy of the judiciary and the checks and balances within the branch of the executive.

Conclusion

The decision-making structure of India’s governance system, commonly known as two systems of governance, keeps power decentralised between Central and State governments. The division of powers and the dual system of government ensure that the situation of the extensive and diverse population in India is dealt with while, at the same time, the unity of the nation is respected. The provision of dual citizenship in the Constitution of the country empowers every person with citizenship, irrespective of state, to be acknowledged as a citizen of India. This consolidates the nation and streamlines legal practices concerning citizenships that are quite different from the dual citizenship model seen in the United States. This is a perfect example of the balanced principle of merely opting as an Indian citizen and enhancing the obligations and rights of the nation. The flexibility of amendments through a special majority of the parliament remains relevant as it enables it to adapt to the changing social conditions and political realities. There is, however, the ‘basic structure’ of the Constitution, which cannot be amended to protect the core values and stability of the nation. The combination of single citizenship, a unified constitution, flexible amendments, and partial constitutional rigidity encapsulates the unique and dynamic nature of federalism.

Frequently Asked Questions(FAQs)

Is federalism a part of the basic structure?

Federalism is a part of the ‘basic structure’ of the Constitution under one legal and political framework. In Kesavananda Bharati vs. State of Kerala (1973), the case was heard by a 13-judge bench, where it was stated that federalism is a part of the basic structure of the Constitution.

Is the Constitution flexible in its quasi-federal nature?

The Constitution of India is flexible with rigid party elements, which require the state’s approval for significant changes. However, the Constitution can be amended (under Article 368) without affecting the basic structure.

Why is having a single Constitution significant for India’s quasi-federal system?

A single Constitution ensures uniform governance across the country, with states operating under the same legal framework. It contrasts with the federal systems like the United States, where each state has its own constitution, thereby highlighting the unitary characteristics within the federal structure.

What are the challenges of implementing Indian federalism?

There are challenges of central-state relations while implementing federalism in India. The recent challenge of Goods and Services Tax (GST) has raised concerns about guaranteed compensation period ending and states losing revenue autonomy.

How does the Judiciary play a role in Indian Federalism?

The Indian Judiciary plays an important role in upholding federalism in India. The Supreme Court interprets the Constitution, resolving the potential disputes between the central government and the state governments. It helps maintain the balance of power and ensures both levels of government function within their own boundaries.

What is the debate on ‘cooperative federalism’ in India?

Cooperative federalism emphasises collaboration between the central government and state governments. Proponents argue that it is essential for addressing national challenges while ensuring effective governance. They also express concern that excessive focus on cooperation might erode the division of powers and weaken state autonomy.

References

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What are privacy concerns related to data collected or generated by technology

By

Vanshika Kapoor

-

July 7, 2024

0

This article has been written by Anuram pursuing a Test Prep Course for Cracking Certified Information Privacy Manager (CIPM) from Skill Arbitrage.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

Privacy is a state in which one is not observed or disturbed by other people. Data is not a new term; data collection was done using the paper-pen method from earlier times, which is now replaced by computer-based technology. The data of millions of people around the world is collected every minute and it can be used to collect various sources of information. Privacy is the right of a person and is recognised as a fundamental right.

To counter the issues faced by data collection, “the European Union” introduced the GDPR (General Data Protection Regulation) in 2016 It sets a new threshold for international good practices and privacy, which relates to data. Other countries, such as “Singapore, Australia, and India,” have also jumped on the waggon by passing the Digital Personal Data Protection (DPDP) Act of 2023.

Why privacy is important and how is it affected by the collection of data

The privacy of an individual is a fundamental right. Each piece of data collected from a user is information about the user. Technology is advancing at an astonishing rate, and the laws are always a step behind. The laws are made from the consequences, not from foresight. Data privacy laws are shaped by the consequences they aim to address. The Digital Personal Data Protection Act (DPDP) is an example of this. Data privacy laws are a response to risks and harms revealed by data breaches that aim to safeguard individuals’ privacy rights and establish clear rules for organisations that are using personal data.

The smartphones we use daily have access to our personal information, habits, secrets, and favourites; if the phone is lost and the contents leaked, it would potentially harm us. Similarly, the data that is collected from you can do the same if it’s not monitored or if there is a breach. Every person is unique and they have unique characteristics, from their biometrics to their mental aptitude. All of this data is available to the companies. Even tech giants like META were fined by the European Union for failing to comply with GDPR. There are numerous incidents like this where there is a violation of the transfer of personal data by the users. As time passes, the quantity of data being gathered is bound to increase, and with that comes the possibility of numerous breaches in data protection and privacy. To combat this, governments are putting in place privacy laws, and individuals or organisations who violate these laws will be subjected to heavy fines.

Data is the new oil

A study shows that an average user spends 401 minutes on the internet, i.e., six hours and 41 minutes per day on internet. The term data is used to explain its significance and how data-driven the future will be. The raw data is not very useful; the data is collected multiple times from various sources and clubbed together, possessing immense potential, and using the data, decisions, analyses, comparisons, and all sorts of analytics can be made.

If one uses Google Maps, Google will get to know the location of the user similarly If one visits a certain restaurant, Google will ask for a review of that place. How does Google know that the person has visited the restaurant? It’s from the data collected from the location. In this digitalized world, data is like a goldmine and companies are collecting data at an astronomical level, from small startups to big MNCs.

Data may be classified into personal data, sensitive personal data, and non-personal data.

Why data is being collected

The data collected from an individual tells a lot about his preferences and interests. For example, the data collected from a food delivery app will have data related to what’s their favourite dish and how often they order it. The data collected is used for personalised ads; the data collected from one’s search queries, shopping history, location data, and other data can be used to specifically show one target ads and as the saying goes, “If you are not paying for the product, then you are the product.” The companies collect data to increase sales, development, analysis, customary experience, and other functions. The customer experience, personalised ads, even when companies use biometric data of employees for authentication, and even the suggestions of movies and series on Netflix and Amazon Prime are results of the collection of data.

The data is even used in sports, where the athlete’s performances are compared with their past, which helps measure the improvements. The collection of data helps a lot in the expansion of this digital world.

Concerns related to the collection of data

The world we live in today is digitalised. It is technically advanced and is advancing rapidly. As technologies make our lives better, there is another side that is affected, i.e., privacy. The use of technology raises several concerns related to the privacy of people. Most organisations are making decisions driven by data collected from sales to marketing advertising, the performance of employees, and other purposes where data can be used.

There is no doubt that organisations collect data, but the data collected must be in an ethical way. If unethical means are used in the collection of data, there are various consequences for the data subjects. The collection of data is necessary for various functions but it must not cross the line of ethics. Unethical collection of data will put the safeguards and well-being of the data subjects at risk. Governments across the world are implementing data protection and privacy laws to clamp down on the unethical collection of data. There are various concerns relating to the collection of data and some of the concerns are listed below.

Consent and transparency

The data collected must be with the consent of the user; if not, that is an invasion of the privacy of an individual. Valid consent can be obtained through the privacy policy, cookie policy, or terms of conditions. The user must know what data is collected and what purpose it is collected for.

The Supreme Court of India, in its landmark decision of Justice K.S. Puttaswamy (Retd) vs. Union of India, held that the right to privacy is a fundamental right. This decision was a significant milestone in the history of Indian jurisprudence, as it recognized the importance of individual privacy in the digital age.

The case was brought before the Supreme Court by Justice K.S. Puttaswamy, a retired judge of the Karnataka High Court. Justice Puttaswamy challenged the constitutional validity of the Aadhaar Act, which required Indian citizens to provide their biometric data to the government. He argued that the Aadhaar Act violated his right to privacy and that it could be used for surveillance and other forms of government overreach.

The Supreme Court agreed with Justice Puttaswamy and held that the right to privacy is a fundamental right protected under Article 21 of the Indian Constitution. The Court held that the right to privacy includes the right to be free from unwarranted surveillance, the right to control one’s personal information, and the right to make decisions about one’s own body.

The Supreme Court’s decision in Justice K.S. Puttaswamy (Retd) vs. Union of India has had a profound impact on Indian law and society. It has strengthened the protection of individual privacy in India and has served as a model for other countries around the world.

The Supreme Court’s decision in Justice K.S. Puttaswamy (Retd) vs. Union of India is a landmark decision that has had a significant impact on Indian law and society. It has recognised the importance of individual privacy in the digital age and strengthened the protection of this fundamental right in India.

Transparency in the handling of personal data is crucial for building trust between individuals and organizations. Unfortunately, many people are unaware of the extent to which their data is being collected, stored, and utilised. This lack of transparency can lead to feelings of vulnerability and a sense that one’s privacy is being violated.

To address this issue, organisations must be more forthcoming about their data practices. They should provide clear and concise information about what data they collect, how it is stored, and for what purposes it is used. This information should be easily accessible and presented in a way that is easy to understand.

In addition, organisations should obtain explicit consent from individuals before collecting and using their personal data. This consent should be informed, meaning that individuals should be made aware of the specific purposes for which their data will be used. It should also be freely given, meaning that individuals should not feel pressured to consent. Data protection laws such as GDPR and CCPA recognise consent. Consent is one of the legal bases and it is a widely used legal basis. Article 6 of the GDPR explains consent and states that an individual’s consent should be clear and specific. The data must only be used for that specific purpose. If general consent is given by the user that does not permit the organisation to use the data anyhow they want, this was widely discussed in the Facebook analytical scandal. The GDPR explains that if other legal bases can be applied, such as contract, legal obligation, legitimate interest, and others, consent may not be required.

Advertising

Advertising, such as personal, targeted, and intrusive advertising, is also a concern for collection of data. Most of us might have already experienced this by searching for a product on Google and seeing recommendations of similar products on Instagram and other apps. It is not a coincidence; it is the effect of collecting data and showing targeted ads. These targeted ads are the result of data collected from your searches, products you might have liked, and other relevant data. Even though they sometimes seem like convenience, the facts are that the data is collected and used to manipulate the customer. If there is neither consent nor any other lawful basis behind the targeted ads, it is a violation of data privacy.

The data collected from various sources is used for targeted advertising. The information collected from IP location, search history, and other details is used by the companies in advertising. An article by MIT Technology Review dives deep into this topic. Even with using ad-blockers the data collected from cookies, scrolling habits, and location is used to show advertising in which the subject is interested. The Personalised ads will boost the revenue and sales of products and services of the organisations. These can be seen on social media platforms and different websites, and if there is no legal basis for this marketing or advertising, the data subject has the right to make them stop or take action.

Data breaches

The collection of vast amounts of data poses yet another threat, the threat of breaches. Data controllers are organisations or people who are responsible for the collection of data. The data controllers decide why and for what purpose the data processing happens. The data controller can also appoint a separate entity to process data, called a data processor. The data processor collects data on behalf of the data controller; the data controller may also appoint multiple data controllers. So sometimes the company to which the data subject is subscribed is someone other than the one who collects their data.

The vast amounts of data collected must be stored. If the storage of this data is not properly secured, the threat of breaches or leaks of personal data is high. Even if it is a large or multinational organisation, this concern still exists. For example, if the data is also handed over to other third parties for analysis or other processes, there is a chance of a breach or unauthorised access.

If the breaches are not identified within time and dealt with, they may result in loss of personal data identity thefts, financial losses, discrimination, damage to reputation, and other losses depending upon the data collected. Hence, proper surveillance, security measures, proper storage of data, and data minimisation can help reduce these. The latest report by HINDU states that India ranks 5th in the list of most breached countries. Data breaches pose serious consequences, especially in the case of personal data.

Secondary use of data

The data collected or processed must be used for a specific purpose for which a legal basis must have been obtained. If the Data processor or data controller wishes to use the data for other purposes, additional consent from the users must be obtained. Data is shared with other third parties and it is the responsibility of the data controller to ensure that the collected data is only used for the purpose for which it was originally mentioned.

The data collected can be used for various purposes but it must never deviate from the purpose it was collected for. Legal bases such as legitimate interest can be used to use data for separate purposes but it requires balancing the legitimate interests and fundamental rights of the data subject.

Bias and discrimination

The data is collected based on algorithms that are generated by human beings. If the data collected is biassed, the end product will also be biassed, and therefore biassed data inputs and biassed data algorithms can perpetuate the existing societal basis for discrimination.

The collection of data must be fair to the subject and it should never be discriminatory. The root cause is not the algorithm; it’s because of the discriminatory collection of data. If the algorithm turns out to be discriminatory, the reason lies in the data collected. So it is necessary for data controllers and companies that collect data to ensure that the collected data is not discriminatory or biassed.

Protection of privacy

The laws governing data privacy and protection vary from country to country and each country has its own set of laws. One of the most important laws is the GDPR privacy law. The GDPR protects personal data. Personal data means any information relating to an identified or identifiable natural person, both inside and outside of the EU, that offers goods and services to customers in the EU or monitors the behaviour of individuals within the EU.

India has also implemented a new law called DPDP (Digital Personal Data Protection), which aims to protect personal data.

According to the article by Harvard Business Review, it is estimated that the EU has been fined over 1400 times and a total of 3 billion euros for violations of GDPR. As new technologies such as AI are being generated, which also use data from the user to grow or expand the data protection laws, they ensure that the rights and privacy of individuals are protected.

The rise of technology has led to a significant increase in the collection, storage, and processing of personal data. This has raised concerns about the privacy and security of individuals’ personal information. In response, several countries and regions have enacted data protection laws to safeguard the privacy of individuals. These laws aim to protect individuals from unethical data collection and use by organisations.

Some notable data protection laws include:

General Data Protection Regulation (GDPR): The GDPR is a landmark data protection law that was enacted by the European Union in 2018. The GDPR sets out a comprehensive framework for the protection of personal data. It applies to all organizations that process personal data of individuals in the EU, regardless of their location. The GDPR grants individuals a number of rights, including the right to access their personal data, the right to rectify inaccurate data, and the right to erasure (the right to be forgotten).
Personal Data Protection Act (PDPA): The PDPA is a data protection law that was enacted by Singapore in 2012. The PDPA is based on the GDPR but is tailored to the specific needs of Singapore. The PDPA regulates the collection, use, disclosure, and storage of personal data by organizations in Singapore. It also grants individuals a number of rights, including the right to access their personal data and the right to correct inaccurate data.
California Consumer Privacy Act (CCPA): The CCPA is a data protection law that was enacted by California in 2018. The CCPA grants California residents a number of rights, including the right to know what personal data is being collected about them, the right to request that their personal data be deleted, and the right to opt out of the sale of their personal data.
India’s Data Protection Law, Digital Personal Data Protection: India’s data protection law, the Digital Personal Data Protection Bill, is currently being debated in the Indian Parliament. The bill aims to protect the privacy of individuals by regulating the collection, use, and disclosure of personal data by organisations. The bill also grants individuals a number of rights, including the right to access their personal data and the right to withdraw consent for the processing of their personal data.

These data protection laws are an important step in protecting the privacy of individuals. They help to ensure that organisations collect, use, and disclose personal data in a responsible and ethical manner.

Steps taken for the protection of privacy

Enactment of privacy laws:
- Governments enact comprehensive privacy laws that set out specific rights and obligations for individuals and organisations regarding the collection, use, and disclosure of personal information. Laws like the General Data Protection Regulation (GDPR) in the European Union and the California Consumer Privacy Act (CCPA) in the United States are prime examples.
Establishment of data protection authorities:
- Independent data protection authorities are established to oversee the implementation and enforcement of privacy laws. These authorities have the power to investigate complaints, conduct audits, and impose penalties for violations.
Data subject rights:
- Privacy laws grant individuals various rights regarding their personal information. These rights typically include the right to access, rectify, erase, restrict the processing of, and object to the processing of their personal information.
Consent requirements:
- Organisations must obtain consent from individuals before collecting, using, or disclosing their personal information. Consent must be freely given, specific, informed, and unambiguous.
Data security safeguards:
- Privacy laws require organisations to implement appropriate security measures to protect personal information from unauthorised access, use, disclosure, alteration, or destruction.
Data breach notification:
- Organisations must notify individuals and relevant authorities promptly in the event of a data breach that results in the unauthorised access or disclosure of personal information.
Transparency and accountability:
- Organisations must be transparent about their data processing practices and accountable for complying with privacy laws. They must provide clear and concise information about how they collect, use, and disclose personal information.
International cooperation:
- Countries often collaborate to ensure consistent protection of privacy across borders. This includes mutual recognition of data protection standards and mechanisms for cross-border data transfers.
Legal remedies:
- Individuals who believe their privacy rights have been violated may seek legal remedies, such as filing a complaint with the data protection authority or pursuing a civil lawsuit.
Continuous review and adaptation:
- Privacy laws are subject to regular review and adaptation to keep pace with evolving technologies and societal expectations. This ensures that the protection of privacy remains effective and meaningful in a rapidly changing world.

Steps taken for the protection of privacy in India

The Constitution of India:
- Article 21 of the Constitution of India guarantees the right to privacy as a fundamental right.
- This right protects individuals from unlawful surveillance, intrusion, and interference in their personal lives.
The Right to Information Act, 2005:
- The RTI Act provides citizens with the right to access information held by public authorities, including government agencies.
- This right helps individuals protect their privacy by allowing them to access and correct their personal information held by the government.
The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016:
- The Aadhaar Act provides for the establishment of a unique identification number (UID) for Indian residents.
- The UID is intended to simplify access to government services and benefits but has raised concerns about privacy and data security.
The Personal Data Protection Bill, 2019:
- The PDP Bill is a comprehensive piece of legislation that aims to protect the privacy of individuals and regulate the processing of personal data by entities.
- The Bill includes provisions for the consent of individuals for the collection and use of their personal data, the right to access and rectify personal data, and the establishment of a Data Protection Authority to oversee the implementation of the law.
Judicial interventions:
- The Supreme Court of India has played a crucial role in protecting privacy rights in India.
- In several landmark judgements, the Court has upheld the right to privacy as a fundamental right and has issued guidelines for the protection of personal information.
Regulatory measures:
- The Reserve Bank of India (RBI) has issued guidelines to banks and financial institutions on the protection of customer data.
- The Telecom Regulatory Authority of India (TRAI) has issued regulations to protect the privacy of telecom subscribers.

Conclusion

The digital world is evolving at an astonishing rate, from startups to big companies relying on data. In this day and age, decisions are based more on data collected and processed. The digitalised world runs on data, and even in sports, when observed, it can be seen that data is used to monitor the athlete’s progress. When this astronomical amount of data is involved, there will inevitably be breaches and loss of personal data. To counter these losses and breaches, laws are being implemented that help protect privacy in this digitalised world. The data will always be collected, but the collection of data must not be unethical.

References

Top 10 AI-driven remote jobs for women

By

Vanshika Kapoor

-

July 7, 2024

0

This article has been written by Stuti Agarwal and deals with the various AI-driven jobs for women which can be undertaken in a remote mode. The article in general also talks about the introduction, impact and advantages of AI in our lives and how it is benefitting the women through various job roles.

Table of Contents

Introduction

After the advent of COVID-19, there has been an increasing demand for remote working culture. Many organisations have opted for a hybrid working culture also which not only helps them save on their travel time but also ensures a conducive working environment and autonomy to the employees. We have seen that there has been an increase in the demand for remote work mode and working professionals who have certain family commitments, medical issues or any other condition which restricts them to step outdoors for employment purposes seek this mode as it widens the scope for their employment. For this purpose alone, COVID-19 has proved to be a blessing in disguise as employers are able to see this side of work mode which helps them retain promising talent by accommodating their work-from-home demands.

Work-from-home as a concept was alien before 2020 and now has become a part of the professional and corporate culture. There have been various softwares which help smoothen the remote working and tracking of work of the employees or help connect with the team mates virtually over a project.

One major segment of the workforce, that is the “women” have always been questioned with their ability to manage their family commitments along with their work life. As gender biased as this statement might sound, but this is the reality of the society we live in. Though the times have changed or have been changing gradually, there are still certain restrictions which women might face which prevent them from leaving their home and stepping outside for work. Therefore, the remote working culture has come to rescue these women who either have any medical issue, any family issue or even have their maternity commitments.

AI and how it is believed to break gender bias

The AI ecosystem is spreading like a wildfire. There is no sector that has been left untouched by AI. With the growing emergence of AI, the new job opportunities that are being unveiled are huge and tremendous. AI is seen to be incorporated in every domain and sector like healthcare, finance, automobile, hospitality, software development, education, legal businesses and many more. Every individual and business organisation in general can gain benefit from this groundbreaking transformation in the tech world. These new opportunities created with the introduction of AI can be seen as a boon for women workers in particular.

AI is simply the integration of technology with innovation and creativity. Women who have a knack for automation and technology, can look to dive deep into the world of endless career prospects that have been created with such technological advancement with AI. Today’s era is booming with job roles which are driven by AI because the organisations want to build an edge over their competitors by strengthening their overall operations from software to hardware. The businesses believe that AI is the new future and they will be left back in the race if not kept well upgraded and not walk beside and with AI technologies. Therefore, new AI driven job roles are on a boom nowadays which can be seen as an opportunity for the workforce which is seeking such AI-driven roles in a remote working environment as these roles do not compulsorily require a person to work from a certain geographic location or office premises. Since this field is completely skill based, the question of gender does not arise.

The data from the World Economic Forum states that 22% of AI professionals are women. Any male or female having studied the relevant course or have acquired the required skills can take the job role irrespective of any role of gender to play. The organisations, these days, are more output oriented which makes them focus on the core competencies of their employees than to think about any gender bias in this regard. Yes, there are places where gender bias still prevails but thankfully, the tech world has started observing a significant change in the mindset of the people.

Advantages of AI

Did you ever imagine making a portrait of how you would look in your old age? Did you ever think of listening to the latest song in the voice of a singer who is no more? Did you ever wonder about having a software just a click away which can write a poem for you instantly by just typing it?

Well, Artificial Intelligence is the answer to all the above questions. With the advent of AI, we have been witnessing everything which we didn’t even think about as human beings. This revolutionary technology is obviously human made but this is to make work and labor of humans easier and efficient.

The following are some of the many advantages which AI bring to the table for making our lives easier and more efficient:

Analysing voluminous data in no time: AI is proficient enough to process and analyse huge volumes of data which a human mind is not capable of doing. However, there might be cases where it is not that a human mind is not capable enough to undertake such analysis but the time as an essence comes into picture. It is the time which is saved when we use AI to calculate, analyse or process a certain volume of data which the human mind, if it can process, might take many days to undertake.
Diminishing digital divide: We, nowadays, see people who come from a generation which is not considered to be very tech savvy use voice assistants – google voice assistant, alexa or even siri. This helps them undertake tasks on their devices which they probably find difficult to perform on their own. Therefore, such AI helps narrow down the digital divide which can be seen as a result of generation gap or technology advancement that has taken rapidly in recent times.
Indirect motivation to humans: There has been a common conception that AI might replace the human force. This misconception alone has made humans work even harder or polish their work and performance so as to not get beaten by the mark of AI. Not only this, with the advent of AI, it has complemented well with the human taskforce to deliver optimised results and highest quality work.
Aid in upskilling and reskilling: The AI has been influential in gaining much importance as its role in positively impacting the skill development and enhancement of the workforce across sectors. For example, almost 80 per cent of rural women participate in the agricultural sector alone. Using AI-powered machinery and programmes can prove beneficial to them if investment is made in the upskilling and training of such a workforce required to work with the machines in a supervisory capacity. In fact, AI can help detect the right time to sow seeds, harvest crops, predict yields, and so on for agriculturalists, helping them to upgrade their performance and optimise the results.

AI-driven remote jobs for women in India

Generative AI is a newly developed branch of AI which is very different from traditional AI. The latter works on the pre-established formats whereas the former focuses on creating new content with creative outlook.

According to a survey by KPMG, 77% of executives believe that GenAI will have the greatest impact on their organisation among emerging technologies. In addition, a significant majority plan to implement GenAI solutions within the next two years, underscoring the rapid adoption and widespread appeal of GenAI.

Generative AI Engineering

Generative AI is a type of artificial intelligence technology that can produce various types of content, including text, imagery, audio and synthetic data. Generative AI engineers often work on projects that involve generating text, such as creating AI chatbots or question-answering systems.

A generative AI engineer is a professional who specialises in designing, developing, and maintaining generative AI models like OpenAI GPT, Google PaLM, and Stability.ai Stable Diffusion.

These engineers work on projects which help generate brand new content for the users which is made by tweaking the original content available online. It helps in providing content to the users who can use it as original and prevent them from plagiarism.

Qualifications required for becoming a generative AI engineer is a bachelor’s degree in Computer Science and the related technical field. Mathematics is also included as a subject for the qualification. Practical experience is also desired in coding in one or more languages along with in development apps using AI methodologies. Proficiency in Python is one of the most sought after qualifications for the profession of generative AI engineering.

Since the profession basically involves programming and coding which needs a laptop and one’s knowledge of the language, it is a well suited job which can be undertaken remotely. This makes it a desirable pick for women who would prefer doing a remote, work from home, job because of certain conditions faced by them.

Women engineers can undertake this role as it requires a fusion of skill and creativity. Not only this, the option available for it to undertake in a remote mode also gives women an edge to take it within their comfort zone. Therefore, this can be one of the best roles which is skill-based and helps women be self-dependent and be employed, coming out of and combating the barrier that they cannot travel to an office space daily.

The following are some of the samples of such available work:

Generative AI Solution Architect

An AI architect is a professional who specializes in designing and implementing AI systems and solutions. They possess a deep understanding of AI technologies, algorithms, and frameworks. Their expertise is specific to the tools and technologies essential for crafting effective AI solutions within the Generative AI domain.

Professionals having a background or qualification in data science or data engineering prove to have an edge over jobs relating to generative AI solution architect. Irrespective of the general solution architect roles, generative AI solution architects have a major role in platform setup, infrastructure architecture, and application-specific work, their responsibilities showcase a specialized focus on the intricacies of Generative AI technologies.

“Layers” or the pillars which build the architecture are:

(1) Data Processing Layer;

(2) Generative Model Layer;

(3) Improvement and Feedback Layer; and

(4) Integration and Deployment Layer.

The minimum qualification requirement is to obtain a bachelor’s degree in Computer Science, Mathematics, Software Engineering, Data structures or any other related technical field also having equivalent practical experience. The experience can be considered in coding in languages like Python, Scala, etc. The master’s degree in Artificial Intelligence opens wider opportunities for jobs as a person gets equipped with advanced knowledge and skills.

The certification courses like AWS Certified Solutions Architect and Microsoft Certified Azure AI Engineer Associate also provide expert level knowledge.

The average salary of a Generative AI solution architect is considered to be 28 lakhs yearly, in India.

Women professionals who wish to build a strong CV and wish to work from home can ensure that they have something extra to provide to the company. Having an understanding in machine learning frameworks like PyTorch, TensorFlow; proficiency in Tableau, possessing relevant soft skills can help these women professionals win some bonus points. This way women can pursue this profession via remote working facility and nurture and stabilise their career and achieve financial independence alongside.

Generative AI Data Engineer

Generative AI can automate data transformation processes, reducing manual effort and speeding up the time it takes to prepare data for analysis.

Data is the new oil, as we all know, and this is why an integration of data science with AI engineering is creating a spur in the market. There is a lot of data which is required to build a successful and useful AI model. Therefore, the roles which help in making an AI data savvy are termed as Generative AI Data Engineer.

A data engineer has a very cumbersome job handling voluminous and complex data. Therefore, introduction of AI in data engineering helps them to aid in their endeavours and help them perform their job in a better manner. This is one of the most useful AI-driven jobs that can be even conducted in a remote environment.

The question will always be whether AI engineering will replace data engineers. The answer is a strict no. AI is just there to assist them in their complex jobs. It helps data engineers to spend less time doing remote mechanical work and focus on the analytical part to increase productivity.

As data is the input which we require to take up a job as a generative AI data engineer, it cannot be compulsorily required to undertake it from an office space. Data can be shared over the internet these days from and to any location, within a click of mouse. This alone makes the job suitable for women qualified to undertake this role from a remote location. Women can look to pursue a career in data engineering as this field is on a boom with an increase in competition in the market. Data analysis and engineering is a very sought after activity by large corporations to read the trends and market behavior in order to capture and expand the untapped potential of their business. Therefore, it is a field which is gaining recognition and shall never lose its relevance and importance.

LLM Prompt Engineer

A large language model (LLM) is a deep learning algorithm that can perform a variety of natural language processing (NLP) tasks. Large language models use transformer models and are trained using massive datasets — hence, large. This enables them to recognize, translate, predict, or generate text or other content.

LLM prompt engineering is where we prepare instructions for an LLM to achieve and let it perform the desired and the required results.

It is revolutionary because:

It gives a direction to LLM to behave in a certain desired manner which unleashes a slate of million possibilities based on our creativity and vision;
Reduce the bias of the LLM by training the model to provide ethical and fair outputs; and
Improve the accuracy and coherence of the LLM by providing clear instructions and contextual information.

LLM prompt engineering helps in making AI assistance more suitable, workable and more efficient for the users and consumers. Engineering in Computer Science is a way to go for LLM prompt engineering. Specialized courses in Natural Language Processing (NLP) and Machine Learning (ML) can also be beneficial.

Looking at the professional requisites of the profession of LLM prompt engineering, the role can be efficiently undertaken from home i.e., can be worked from home. This makes it suitable for women engineers to undertake the role of a LLM prompt engineer remotely, which doesn’t require them to visit the office daily.

LLM prompt engineering helps to make AI more efficient to serve the users. For women engineers, this role is helpful because it is based on programming and no physical infrastructure is required to undertake the same. It is used in a very wide amplitude which opens a plethora of horizons and opinions for women remote workers to choose from.

Data Scientist

Data scientists, as the word already suggests, are the experts in dealing with a huge amount of data and interpreting it to yield some useful insights from it. As every organisation needs figures and data for proper planning of its future course of action, the job role of a data scientist becomes very relevant in today’s era. Accurate data and its on point evaluation can benefit the organisation in many ways.

The accuracy of the data is dependent on its source from where it is taken. The source of information should be credible and reliable. The collected data is then analyzed and its studies are later communicated to the top management for making future policies.

The scope of data scientists is much wider than that of data analysts. The former engages in more complex tools and models to derive the useful results.

Data Science and Artificial Intelligence has been on a boom as a career prospect these days. Companies are seeking individuals proficient in core data science and AI concepts and logistics. The field is complex and requires a peculiar educational and skill set to write new age concepts and change the landscape of data handling, interpretation and usage.

The job of a data scientist is analytical in nature which seldom requires a tangible infrastructure to operate and work. Therefore, the job is suitable for remote working. With an integration of data science and AI, it is way easier to work remotely in this field, making it a highly sought after role for women data scientists who wish to work remotely and are not willing to make an office presence.

A person, including women, can enter into the world of data science by obtaining a relevant degree in data science, computer science or statistics from a certified university to build a strong foundation. Today, even the online platforms offer courses to get people equipped with the knowledge and skills required for the freshers to enter the industry. The individual should have core knowledge in fields like statistics, math and python, for the starters.

According to the data from Statista, the market size for data science is expected to increase in the coming years. It is expected to be worth $103 billion in 2027 as compared to $70 billion in 2022.

Further, as per the reports of the US Bureau of Labour Statistics, the rise in data science industry jobs is predicted to be 36% between 2021 and 2031.

The job opportunities in this field are increasing everyday. With data becoming a major part of the organization’s success, the role of a data scientist is gaining more importance. The nature of the job being such which can be undertaken remotely, it can be a very lucrative opportunity for women who wish to take on remote jobs. Data science jobs are still in a phase of gaining much importance and are expected to gain a boom in the times to come. With the integration of AI with data science, the field is expected to revolutionize data processing and analysis. Therefore, women can look to build their career in this field and can negotiate for a remote role as well.

Automation and Artificial Intelligence Systems Developer

AI is not the same as automation. They, as individual concepts, are very different from each other. However, they can do wonders when they integrate or come together as a single concept.

To understand the concept of integration of automation and AI, we can take an example for clarity. What is automation? Whenever and wherever we deploy a robot, command or a machine to undertake or perform a task in place of a human, it is “automation”. However, this robot or machine shall perform the task as per the inputs or commands set by the scientist and it cannot go beyond that command. However, with the advent of AI and introduction of AI in automation i.e., incorporation of AI into robots or machines, they become capable of taking a decision even when there is a lack of command or program for a task or action. This makes the robot or the machine “intelligent” thus, artificial intelligence is the name.

A good example of this is virtual assistants or AI-powered chatbots. Customer service centers are often bombarded with thousands of emails – too many for a few people to respond to adequately and rapidly within their eight-hour workday. However, AI chatbots answer customer queries instantly, working around the clock to reduce customer wait time. If the chatbot can’t answer a customer’s question, the conversation is brought to a human agent. This helps reduce wait times and backlogs and means the employees can focus on more complex cases.

AI developers use programming languages like Python and R to integrate AI algorithms into software applications. In this role, one has to write code, test it, and deploy it, in addition to converting machine learning (ML) application programming interfaces and making them accessible to existing software.

AI developers create and design AI models and algorithms. A system that can process data, take decisions and analyse patterns to produce desired results.

The distinction between an AI developer and an AI engineer lies in their primary focus, skill set, and responsibilities. AI developers specialise in designing and building AI models and algorithms, while AI engineers focus on implementing and deploying AI systems at scale.

Women developers and coders can undertake this role and contribute to the automation and AI integration revolution. They can undertake designing, programming, coding and other ancillary jobs which can be undertaken remotely. These jobs require a person’s knowledge of the language and no specific hardware requirement for the same makes it suitable for undertaking it from anywhere in the world and not just a specific office location. Therefore, it makes it lucrative for women engineers to take up this role within the comfort of their homes and be independent at the same time.

Swift Developer

Swift is a general purpose, compiled programming language which is a new age development. It was created by Chris Lattner in 2010 for Apple Inc. It is easy to write and quick to run which makes coding a joyful ride. Also, its safety features make it the number one choice for the coders.

A swift developer is a person who works closely in iOS development and is also well read with Objective-C, Apple’s earlier programming language.

The advancements in the tech-world are not unknown. The rapid changes in this field boost the requirement of professionals who can cope-up with its dynamic nature and also provide an edge over other existing variables.

The scope of a career as an iOS developer is widening and nurturing each day. The best advantage for software engineers is that they can work remotely, given that they have the proper skill sets and knowledge. The tech industry is exploding with new career opportunities where the percentage of women represented in tech increased by 3%, in the past five years.

Anyone interested in this field can kick start their careers by learning the fundamentals, building projects, gaining real-world experience and then obtaining certification.

The flexible nature of this job makes women enter into this world which is also well in-demand and scalable. This role, though, seems limited but has a far reaching impact in the market with the ever increasing demand for upgradation in the field and cut-throat competition between iOS and android which makes iOS feel the need to have constant developments in the software to provide an edge to its loyal customers. Therefore, the role remains in high demand and requires employees. As this also isn’t a role relating to a certain office space working requirement, it can be undertaken remotely and help women to take it up, suiting their needs and qualifications.

This career path is very enticing for freshers as well, as it is simple, fast growing and rewarding.

Business Intelligence Engineer / Developer

They work closely with marketing staff and other stakeholders to gain an understanding of BI goals and objectives to ensure the systems and their capabilities support competitive research efforts that achieve those goals. They may train other staff members on the use of BI tools and programs.

Today, the demand for professionals who can turn raw data into actionable insights is higher than ever before. Data is the main infrastructure which is required to perform this job by the application of mind of the engineer. This makes it suitable for working from a remote set up also. Women engineers qualified for this role can take a chance with this role and try working as a Business Intelligence engineer as it will not only make a great career prospect for them but can also be flexible for them to take up according to their convenience. They can negotiate for working remotely for the same which can help build a career and not restrict them from working for the mere reason of them not being able to attend office in physical mode.

Computer Vision Engineer

A computer vision engineer is someone who helps the computer to have a ‘vision’ or help the computer to ‘see’. It basically gives ‘eyes’ to the computer. You might wonder what this sentence means exactly. This engineering helps incorporate a software which helps in the features such as ‘face recognition’ in your favourite iPhone or to implement a feature or filter in your Snapchat app. Object detection features to make a picture search or other related features also help to optimise search results or the research for a topic.

This is a purely programming based job making it suitable for remote working. Computer vision engineers are not required to be physically present in an office set-up and therefore, these roles can be undertaken from home. This helps in retaining the talent which may not be available within the geographical bounds of an office premises or is not able to attend office in physical mode due to certain limitations.

Computer vision engineers often find clever ways to incorporate artificial intelligence into different domains. The cashier scanning the barcode of the product, a student scanning a math problem using image search options or a newly evolved idea of self driven cars, these all are the gifts of a computer vision engineer.

These engineers make our day to day routine work easier. But to become one, it is not that of a cakewalk, honestly. One should have at least a bachelor’s degree in the relevant area and in-depth knowledge of languages like Java, C++ or Python.

The growth in job roles is projected to increase by 15% from 2019 to 2029, as per the US Bureau of Labour Statistics. For women engineers, this role seems very lucrative and promising. Programming and coding are the jobs which can be suitably be undertaken remotely without a compulsion of going to office premises. Thus, women job seekers who wish to work from their home can look for this as a very rewarding career option.

Women stand-out in terms of their creative fervor and an innovative mind-set. They can contribute in the ideation, development and further improvement of the products in the computer vision engineering departments. They can take up coding and development as a direct contributory to the profession even in a remote working mode along with their contribution in the ancillary fields too. Women programmers might find it a lucrative call to work in this industry and help science take over the world.

Algorithm Developer

Algorithm development is more than just programming. Algorithm, in layman terms, means set of instructions required to solve operations. The machines, specifically computers, need pre-determined commands to keep the working steady. A well stated algorithm increases the efficiency of the program.

The AI system developed by experts depends on previous patterns and commands. Therefore, it becomes essential to meticulously study the patterns and develop the in-demand model to meet the growing challenges of the users which aligns well with the traditional algorithm development. Algorithm developers are in great demand nowadays and have been assisted well with the advent of AI. When core in-depth knowledge meets the innovative minds, radical and groundbreaking revolution happens.

It requires an understanding of the alternatives available for solving a computational problem, including the hardware, networking, programming language, and performance constraints that accompany any particular solution.

Usually, tech is a male dominated world but changes are visible. In 2023, a global developer survey showed the percentage of women developers globally which was around 23 percent. The changes in pay parity have also been observed which has inspired many young women to pursue their dreams even while working remotely.

One can even expect a good salary in the profession along with the flexibility of working from a remote location, making it suitable for women who have constraints on those grounds.

International opportunities

In a global affair, the professional landscape in the field of AI-driven roles has been on a rise these days. With the expansion of the impact of science in the lives of people, AI has a major and dominant role to play. Women across the world are emerging as the flag bearers of the advancement in the field of AI. Through gender diversity in AI, we ensure that the technologies developed are inclusive, equitable, and representative of diverse societal needs and values. We’re used to thinking of machines and technology as entirely unbiased, but that is not the case. If the people developing these technologies have biases, these will be inevitably reflected in the finished product. Therefore, gender diverse people are essential to develop and expand the field of AI.

Some of the remote working opportunities to work with internationally reputed companies in the industry are as follows:

Therefore, after looking at some of the amazing opportunities available for remote working in the field of AI or AI-driven roles, it is imperative that the field is on a boom. Women can tap these opportunities in their favor by undertaking the relevant qualification, degree, programs or certifications. As the world is witnessing a blur in the line of gender inequality in the field of science and technology, it is a great time to capture these remote working opportunities and become independent while also being within the comfort of home.

Women busting the myth, tech is no longer a male dominated industry

When we discuss words like technology, engineer, data, we immediately picture it as men leading the way. But there have been significant changes which are taking place these days. Now, people no longer connote tech with men. There are several women super-heroines that have paved the path for future girls to come and leave a mark in the tech world. They not only fought the societal taboos but also broke the stereotypical thinking revolving around in this field.

Anima Anandkumar, Senior Director of AI Research at NVIDIA, is one such woman who develops AI algorithms for scientific applications. Regina Barzilay is another wonder woman who is the leading member of the MIT Computer Science and Artificial Intelligence Laboratory (CSAIL).

Furthermore, Fei-Fei Li, who co-directs the Stanford Human-Centered AI Institute, is known as the godmother of AI. Shivon Zilis is another profound name in the world of AI, being the youngest person ever to serve as a Board member at both OpenAI and Neuralink.

Now if you see someone disregarding your passion for tech, you know there are several wonder women who did not let others dictate their journey. So, it is the only right time when you buckle up your belts and give your passion and dreams wings to fly away into the world where being a woman is not taken as incompetency in the so-called world of males.

As there has been a rise in the remote working opportunities for women in the AI-driven industry, the women who have certain constraints in working from office are also able to participate in the professional landscape and become financially independent and improve their living standards. Therefore, path breaking scientific advancements, advent of AI-driven job roles and the upcoming culture of remote working has helped to redefine the professional standpoint of the workforce, impacting women professionals tremendously.

Frequently Asked Questions (FAQs)

What is remote working or hybrid working?

Working away from a physical geographic location or an office premises is known as remote working. Where the employees are given an option to work from home and are required to visit the office once or twice a week as per their mutual agreement, is known as hybrid working model.

In simple terms, remote jobs are jobs where the candidate is not required to visit the office daily and can work from a place of his/her choice. The concept of remote working gained momentum in the year 2022 when the whole world was shut down due to the deadly COVID-19 virus.

In hybrid working, the employee is required to visit the office periodically whenever asked to do so.

Remote jobs are very popular these days as it gives flexibility and comfort which indirectly helps in enhancing productivity as it minimises the hassle of travel, eliminates the time wastage in travelling and also helps employees work in an environment suitable for him/her. There are numerous jobs in every field which are offering remote jobs with good payscale. One, just needs to equip themselves with a strong knowledge base and then sky’s the limit.

What makes this article relevant if you are a woman who is looking for remote job options?

We have often seen women facing bias and discrimination in respect to the kind of roles they can take up. Even today women working in tech companies is an alien concept for many. It is heartbreaking to see that even women have the same traditional thinking. If you are reading the article then it means you are someone who believes in coming out of the stereotypical barriers.

This article provides a deep understanding of the career paths which women can take up which are relevant, rewarding and have limitless growth. This article majorly talks about remote job opportunities for women in the areas where AI has an impact and has made the sector / job easier by its presence and evolution.

What do you mean by AI-Driven jobs?

AI, nowadays, is the buzzword. ‘Artificial Intelligence’ deals with complex tasks which were once believed to be only either done by humans as they require high aptitude, intelligence and logic or were considered undoable altogether.

The traditional human jobs, when equipped with properly designed models which are quick, error free, sound in handling large amounts of data effectively bring out the newly emerging concept called AI driven jobs. The manner in which AI

Is AI going to replace humans at work?

No. Definitely not. AI, ultimately, is developed by humans. AI is helpful in eliminating repetitive tasks, having high accuracy which complements the working of humans and optimises it to the core making humans appear more efficient and remarkable. AI is used to enhance the output and productivity levels with the aid of AI. It is very wrong to assume that AI will replace humans in future. Humans have high levels of emotional and creative quotient which is very difficult to inculcate in AI and for this reason alone it is entirely absurd to rule out the role of human work force in the job market.

How does AI affect the job market?

It is often perceived that AI will replace the human work force and will affect the job market. However, With the advent of AI, the job opportunities have increased and there is a great necessity to reskill and upskill the human force. The job market has been impacted but in a positive manner only.. One can observe the transformation happening in case of job requirements. The job market is looking for professionals experts in handling AI. New jobs have been created in and around the AI sector because at the end it is humans who will develop something like AI and introduce it in the various facets of life to make it easier.

The World Economic Forum’s Future of Jobs Report illuminates the dual nature of AI’s impact: By 2025, while 85 million jobs may be displaced by automation, an impressive 97 million new roles are projected to emerge, reflecting a shift in the division of labour between humans, machines and algorithms.

What is the relevance of data in AI?

Data is like the oxygen for artificial intelligence. AI is built on the strong foundation of deeply researched data taken from various sources to bring out useful insights and conclusions. Data helps to study the past trends and patterns to make AI more user friendly. AI models and algorithms are developed after strict scrutiny of relevant data. Without reliable data, the existence of AI can be proved to be impossible.

Is AI a good career option for women professionals?

Women are at an advantage since they work in areas that require collaboration between technology and human intervention. They are a natural fit to implement AI at their workplaces, as they are adept at managing data and identifying gaps that can be efficiently filled by AI solutions. However, to ensure that this is possible, companies need to reskill their workforce and train their staff across all divisions and levels. In India alone, companies across sectors such as healthcare, finance, and even retail, are increasingly using AI, which is touted to add $500 billion to the economy by as early as 2025.

What is narrow AI?

It is the most commonly found AI which is also known as ‘Weak AI’. Narrow AI has limited scope and its operations are restricted as it works under a predetermined set of rules. It performs specific tasks unlike super AI. Alexa and Siri are examples of Narrow AI.

What is super AI?

Super AI or Superintelligent AI is a term that is considered to be highly superior AI algorithms and systems that are capable of performing high functioning actions that possess intelligence like that of a human, or even beyond human intelligence and capacities, in an efficient manner leaving no scope of error, mistake or inaccuracy. It is expected to accelerate technological progress and the speed of conducting any action. Though the concept of super AI is still not a reality or common concept but is expected to take over the world very soon.

What is Artificial General Intelligence (AGI)?

Any machine’s ability to think, work or comprehend like humans can be termed as “Artificial General Intelligence”. Emulating the human mind is one of the core features of AGI. Under this technology, the computer, machine or a robot is equipped to perform as a human mind by understanding human behaviour and consciousness. AGI is also known as ‘strong AI’. A very good example of AGI is ‘ChatGPT’.

How can AI be integrated in day to day life?

We don’t realise the amount of tasks which involve AI and makes human life easier. Cab booking applications, voice assistant, weather prediction apps, gaming, chatbots are all AI driven these days. Therefore, the role of AI in today’s life is increasing its impact day by day with the advancement and growth of technology around the globe.

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Balmukand vs. Kamla Wati and Ors. (1964)

Introduction

Details of the case

Facts of the case

Issues raised

Arguments of the parties

Arguments of Petitioners

Arguments of respondent

Laws involved in Balmukand vs. Kamla Wati and Ors. (1964)

Karta

Alienation

Karta’s power of alienation

Legal necessity

Benefit of estate

Indispensable duties

Burden of proof

Relevant judgements referred to in the case

Judgement in Balmukand vs. Kamla Wati and Ors. (1964)

Judgement of the Court of First Instance

Judgement of the Punjab and Haryana High Court

Judgement of the Supreme Court of India

Rationale behind this judgement

Analysis of the case

Conclusion

Frequently Asked Questions (FAQs)

For what purpose can Karta alienate joint family property?

What does ‘legal necessity’ mean in context of this case?

What criteria did the court use to determine whether the sale was beneficial?

What is the basic difference between the terms ‘legal necessity ‘ and ‘benefit of estate’?

What are the circumstances that would be covered under the Benefit of the estate?

Was Pindidas liable for specific performance regarding his interest in the joint family property?

References

McCulloch vs. Maryland (1819)

Introduction

Details of the case

History of McCulloch vs. Maryland (1819)

Importance of the case

Facts of McCulloch vs. Maryland (1819)

Issues raised

Principles and concepts involved in McCulloch vs. Maryland (1819)

Principle of Necessary and Proper Clause

Power to tax can be the power to destroy

Federal law over state law

Contentions raised

Petitioner’s contentions

Appellant’s contentions

Judgement in McCulloch vs. Maryland (1819)

Analysis of the case

Aftermath of the case

Conclusion

Frequently Asked Questions (FAQs)

Who was Chief Justice John Marshall of the Supreme Court of the United States of America?

What is the federal form of government in the United States of America?

References

Types of divorce (talaq) in Muslim Law

Introduction

Marriage under Muslim Law

Nature of marriage under Muslim Law

Essentials of marriage under Muslim Law

Capacity to marry

Offer and acceptance

Consent of the parties

Mehr

No legal impediment

Absolute impediment

Relative impediments

Types of marriages under Muslim Law

Temporary marriage (Muta marriage)

Sahih (valid) marriage

Batil (void) marriage

Fasid (irregular) marriage

Divorce under Muslim Law

Conditions for a valid divorce in Muslim Law

Free consent

Capacity

Express words

Valid Divorce under Sunni law

Valid divorce under Shia law

Types of divorce (talaq) under Muslim Law