State of Bombay and Another vs. F.N. Balsara (1951)

By

-

July 3, 2024

The article has been written by Kanika Goel. This article provides a detailed analysis of the landmark judgement of the Supreme Court in the matter of the State of Bombay and Another v. F.N. Balsara (1951). This article elaborates upon the various peculiarities of the case including the facts, issues, arguments of the parties, relevant laws and precedents and most importantly, the judgement laid down by the Supreme Court.

This article has been published by Shashwat Kaushik.

Introduction

The case of State of Bombay v. F.N. Balsara (1951) is a landmark judgement pertaining to a situation where there arises a conflict between two statutes and there lies an observation of the incidental encroachment of the subjects of different legislative lists. If, on the evaluation of a particular legislation, it is observed that the statute is in resonance with the subject-matter assigned to the legislature making that statute, then it ought to be held valid as a whole even if it accidentally touches upon the matters beyond its competence of legislation, i.e., on the subject-matters enlisted in the list within the competence of the other legislature. Matters enshrined in different lists under the Seventh Schedule of the Indian Constitution are bound to coincide and hence, incidental trespass usually happens in such matters.

The above-mentioned aspect of incidental encroachment is based upon the doctrine of pith and substance that brings flexibility into the otherwise stricter system of distribution of powers amongst the level of governments. It gives an additional direction to the distribution of powers amongst the Centre and the States. The reason behind the applicability of this rule is that if every statute were to be declared invalid and void despite the fact that it has only slightly touched upon the legislation pertaining to a particular subject of the other field, then the power of each legislature in the country will be significantly constricted to only deal with the subjects entrusted to it for legislation.

Details of the case

Name of the case

State of Bombay and Another v. F.N. Balsara

Type of the case

Civil Appeal under Article 132 of the Constitution of India

Equivalent citations

1951 AIR 318; 1951 SCR 682

Date of the judgement

25th May, 1951

Name of the court

Hon’ble Supreme Court of India

Bench

Justices Saiyid Fazal Ali, M. Patanjali Sastri, B.K. Mukherjea, Sudhi Ranjan Das and Vivian Bose

Author of the judgement

Justice Saiyid Fazal Ali

Name of the Petitioner

The State of Bombay and the Prohibition Commissioner

Name of the Respondent

F.N. Balsara

Relevant Laws and provisions

Constitution of India: Articles 14, 32, 19(1)(g), 47 and 132.
Bombay Prohibition Act, 1949
Government of India Act, 1935: Section 297(4) and Seventh Schedule

Background of the case

There were three legislative lists under the Seventh Schedule of the Government of India Act, 1935 including the Federal Legislative List (List I), the Provincial Legislative List (List II) and the Concurrent Legislative List (List III). With respect to Entry 31 of List II of the Seventh Schedule of the Government of India Act, 1935, the Provincial Government had the power to make laws in respect of “intoxicating liquors” including its production, manufacture, purchase, possession, and sale. However, with respect to Entry 19 of List I, which was considered to be the Dominion Legislature or the Federal Legislative List, the Federal Government had the authority to frame rules and regulations in relation to the “export and import across the custom frontiers”. As per the present case, the Bombay Prohibition Act, 1949 restricted the keeping of and trade of foreign liquors as it trenched on the subject of List I. Hence, the present case was initially filed in the Bombay High Court by the way of a writ of Mandamus by F.N. Balsara, making a prayer for the following:

To enable him to exercise his rights to import and export goods across the Customs border, as well as to buy, possess, use, and consume any stock of foreign liquor, eau-de-cologne, lavender water, medicated wines, and medicinal preparations containing alcohol. These rights included the ability to possess, consume, and use specific articles such as whisky, brandy, wine, beer, medicated wine, eau-de-cologne, etc.
To refrain from interfering with his right to possess these things and to refrain from initiating any legal action or proceedings against him under the Act, whether criminal or otherwise.

The respondent in the present case in his plea before the High Court of Bombay prayed for the impugned Act to be held invalid and illegal. Resultantly, while delivering the verdict, the Bombay High Court declared certain provisions of the impugned Act to be invalid. However, dissatisfied with the judgement of the Bombay High Court, an appeal was preferred by both the parties before the Hon’ble Supreme Court of India.

Facts of State of Bombay and Another vs. F.N. Balsara (1951)

F.N. Balsara, claiming to be an Indian citizen, filed a writ of Mandamus against the State of Bombay and the Prohibition Commissioner in the High Court of Bombay in order to restrict them from enforcing the provisions of the Bombay Prohibition Act, 1949 against him. Further, it was prayed on behalf of F.N. Balsara that the High Court may issue a writ of Mandamus in his favour in order to allow him to use and consume various products and articles such as brandy, whiskey, wine, beer, eau-de-cologne, medicated wine etc. and to allow him to exercise, the right to possess, import and export of such articles including foreign liquor, lavender water, medicated wines and medicinal preparations consisting of alcohol across customs frontier.

Decision of the High Court of Bombay

High Court in its verdict while agreeing with some of the contentions of the petitioner, F.N. Balsara, declared certain provisions of the Bombay Prohibition Act as invalid. These provisions included:

Sections 23(a) and 24(1)(a) so far as they refer to the word “commending” by stating that it “prohibits not merely soliciting the use of or the offering of any intoxicant, but also commending any intoxicant and the contravention of this provision has been made penal”;
Sections 39 in part on the ground that the relaxation of the general laws with respect to the individuals are not arbitrary but based upon the reasonable classification;
Sections 52, 53 in part and Section 139(c) on the grounds of non-involvement of the powers of the delegated legislation;
Sections 136(1) and 136(2)(b), (c), (e), (f) in as much as they were violative of the Article 19 of the Indian Constitution.

However, dissatisfied with this decision, a Civil Appeal was preferred before the Supreme Court under Article 132 of the Indian Constitution to declare the Bombay Prohibition Act, 1949 unconstitutional as a whole.

Issues raised in the appeal to the Supreme Court

The following issues were raised in the case:

Whether there were any adequate grounds to declare the Bombay Prohibition Act, 1949 invalid as a whole? And whether it is contravening the fundamental right enshrined under Article 19(1)(g) of the Indian Constitution?
Whether the Bombay Prohibition Act, 1949, trespasses upon the authority of the Federal Government to make laws in relation to the “import and export” in order to ascertain the maintainability of the judgement of the High Court with respect to the specific provisions of the impugned Act that were declared as void by the High Court?

Arguments of the parties

Petitioners

State of Bombay, the petitioner in the present case (respondent in the case filed in the High Court of Bombay) through which the present appeal lied to the Supreme Court was represented by N.P. Engineer along with G.N. Joshi, R.J. Kolah and Nani Palkiwala. As per their contentions, the power of making provisions relating to the Articles mentioned by the respondent was out of the purview of the Provincial Legislature. According to the petitioner, the competency of the legislature to enact related legislation was to be read and interpreted in accordance with the Seventh Schedule of the Government of India Act, 1935.
On the behalf of the petitioner, it was also contended that “the impugned Act, to the extent that it made the provisions with regard to the usage, consumption and keeping of alcoholic liquors, but which were not intoxicating, was beyond the competence of the Provincial Legislature to enact.”
It was also urged on the behalf of the petitioner, that the prohibition of possession, use and consumption of certain articles, which were not intoxicating drinks, was justified as being ancillary to the prohibition of intoxicating drinks and for that purpose he had relied on several decisions of the Supreme Court of the United States of America in relation to legislation for the enforcement of prohibition of intoxicating beverages.
It was also urged on the behalf of the petitioners that, “according to the Legislature, drinking was immoral, hence, any recommendation of a drink would offend against morality.” While supporting this argument, the Advocate-General averred that “the Legislature was fully justified in prohibiting not only the direct contravention of the Act, but even the evasion of it.”
The Advocate-General on the behalf of the petitioners has contended that the respondent’s challenge to the Act was very extensive.
The petitioner also contended that the High Court was erroneous in showing a liberated view of the warships, troopships, military, and naval masses and also contended that it was violative of the principle of equality.

Respondents

The respondent in the present case, Fram Nusservanji Balsara (petitioner in the case filed in the High Court of Bombay) through which the present appeal lied to the Supreme Court was represented by M.C. Setalvad and C.K. Daphtary.
As per the contentions made by the respondent, the Bombay Prohibition Act, 1949 was challenged for being ultra vires of the State Legislature and void to the extent of it violating his fundamental rights enshrined under Part III of the Indian Constitution. The reason behind him challenging the said Act was that he was in a regular practice of the usage of controlled qualities of foreign liquors and perfumes along with medicinal preparations and according to him, the impugned Act was in contravention of his fundamental rights.
It was also contended on the behalf of the respondent that certain provisions of the impugned Act violated his right guaranteed under Article 19(1)(a) of the Constitution.
While challenging Sections 23(a) and 24(1)(a), it was contended that these provisions prohibits not merely soliciting the use of or the offering of any intoxicant, but also commending any intoxicant and the contravention of this provision has been made penal under Section 75(a) of the Act.
Resultantly, the respondent in the present appeal had filed for the issuance of a writ of mandamus or a suitable order under the Specific Relief Act, 1963 in order to enable him to exercise his right of possession, consumption and usage of wines, liquors, eau-de-cologne, brandy and other such articles.

Laws and provisions referred to in State of Bombay and Another vs. F.N. Balsara (1951)

Constitution of India

Article 14 of the Indian Constitution

Article 14 uses two expressions, “equality before the law” and “equal protection of the laws”. The term “equality before the law” means all are equal before the law and no one is above the law and the term “equal protection of laws” means that the law treats all individuals equally without any discrimination.

Somehow being a negative concept, “equality before law” implies the absence of any special advantage in favour of any particular individual and the equal treatment of all classes to the law. The concept of equality before the law does not involve the idea of total equality amongst all, which is physically not possible to achieve. Article 14 guarantees the similarity of treatment and similar situations and not homogenous treatment. It signifies that law should be handled and dealt with equally amongst the equals and that the likes should be treated alike.

However, being a more positive concept, equal protection of laws signifies the right of citizens to equality of treatment in similar situations, both in immunities and liabilities imposed by the law upon them. There ought to be no discrimination between the likes, and equal laws should be applied to all in the cases of similar situations. Thus, the rule is that there should be alike treatments for the likes and unlikes should not be treated alike.

The essence and the scope of this Article have also been laid down in the present case by giving the reference to the landmark case, Chiranjit Lal Chowdhuri v. The Union of India (1951), wherein the Supreme Court held that a law may be held constitutionally valid even though it concerns a single individual if, on occasion of a few extraordinary circumstances or reasons that may be applicable to him and not applicable to others, that person may be treated as a class in itself.

Article 19(1)(g) of the Indian Constitution

Article 19 confers six fundamental rights in the nature of freedom to the citizens, and each of such rights has exceptions to it provided in Articles 19(2) to 19(6).

These six rights as enumerated in Article 19(1) are:

Right to freedom of speech and expression;
Right to assemble peacefully and without arms;
Right to form associations or unions or co-operative societies;
Right to move freely throughout the territory of India;
Right to reside and settle in any part of the territory of India; and
Right to practise any profession or to carry on any occupation, trade or business.

This right aims at the betterment, benefits, and well-being of the citizens as well as the nation in its entirety. However, there is no right to carry on a business which is dangerous or immoral.

The State may under Article 19(6) impose certain reasonable restrictions on this right, which are enumerated as follows:

Reasonable restrictions in the interest of the public;
Prescribe professional or technical qualifications, necessary for practising any profession, or carrying on any occupation, trade or business; and
Enable the state to carry on any trade or business to the exclusion of citizens, wholly or partially.

In Bombay Hawkers’ Union v. Bombay Municipal Corporation (1985), the Apex Court held that the public streets have a particular purpose and are meant for the use of the general public and no individual has an inherent fundamental right to carry any business which causes nuisance, abstinence or inconvenience to the public. It was, therefore, stated by the Supreme Court that the provisions of the Bombay Municipal Corporation Act, 1888 which provided the power to the authority for granting or refusing licences to hawkers on public streets and for prohibiting the unauthorised hawkers without giving them a chance of being heard comes under the purview of reasonable restrictions which is in the interest of public and are not in contravention of Article 19(1)(g) of the Indian Constitution.

Article 32 of the Indian Constitution

Article 32 of the Constitution deals with the “Right to Constitutional Remedies”, or bestows upon the citizens, the right to move the Supreme Court by the institution of appropriate petitions for the enforcement of the rights conferred in Part III of the Constitution. It means that if any of the fundamental rights are violated, a person can directly file a petition before the Supreme Court under Article 32.

During the Constituent Assembly debates in December 1948, a discussion on this fundamental right was going on and Dr. B.R. Ambedkar had said, “If I was asked to name any particular Article in this Constitution as the most important one, an article without which this Constitution would be a nullity, I could not refer to any other Article except this one.” It is the very soul of the Constitution and the very heart of it. This Article makes the Supreme Court, both the guarantor and defender of the fundamental rights.

Article 32(2) has bestowed a power upon the Supreme Court to issue directions or orders or writs including the writs in the nature of habeas corpus, mandamus, quo-warranto, prohibition and certiorari whichever may be suitable for the discharge of any of the fundamental rights in a given case. These writs are also known as “Prerogative writs” for the reason of being taken from the English law.

Talking about the writ of mandamus, the literal meaning of the writ of mandamus is “we command”. It is issued when a court commands a public authority or a lower court to perform its functions appropriately. It may be issued against any lower court, a public body, a company, a tribunal or even the government, however, it cannot be issued against a private individual. It can be issued to restrict a public body from implementing any unconstitutional law. This writ, also being known as “judicial remedy” seems both positive as well as negative.

In Hari Krishna Mandir Trust v. State of Maharashtra (2020), the Division Bench of the Supreme Court comprising Hon’ble Justices Indira Banerjee and Indu Malhotra has held that the courts are duty-bound to issue a writ of Mandamus for the enforcement of a public duty.

Article 47 of the Indian Constitution

Article 47 is listed as one of the Directive Principles of the State Policy that are enumerated under Part IV of the Indian Constitution. According to this Article, it is the duty of the State to ensure the rising levels of the standards of living and nutrition in the people of that respective State. Improvement of public health and the prohibition on the consumption of harmful intoxicating drinks and drugs that pose injury to health shall be considered as one of the prime duties of the State.

In State of Kerala v. Kandath Distilleries (2013), the Apex Court held that trading and doing business in liquors does not come under the purview of the fundamental rights given to the citizens. Therefore, the State has the power to completely restrict the trade or business in potable liquor and the State can also create a class in itself for such trade.

Article 132 of the Indian Constitution

Article 132 deals with the Appellate jurisdiction of the Supreme Court in the cases where the appeals arise from the decisions of the High Courts.

An appeal may lie to the Supreme Court from any judgement, decree or order of a High Court if two conditions are adhered to:

That the case includes a substantial question of law as to the interpretation of the Constitution; and
That the High Court issues a certificate under Article 134A to that effect.

Bombay Prohibition Act, 1949

The constitutional validity of the various provisions of the Bombay Prohibition Act, 1949 (now the Maharashtra Prohibition Act, 1949) was in question in the present case. These provisions included Sections 2(24)(a), 12, 13, 23, 24, 39, 40(1)(b), 46, 52, 53, and 139(c). Brief information of the important Sections is given below:

Section 2(24)(a): It is the provision that deals with the inclusive definition of “liquor” in the Act. Section 2(24)(a) enumerates that “liquor” includes spirits, wines, toddy, beer, denatured spirits and all other liquids containing alcohol.
Section 12: This provision deals with the prohibition of the manufacturing of liquor and the construction and working of a brewery or a distillery. This particular provision imposes restrictions on people to manufacture liquor; construct or work in any brewery or a distillery; sell or buy liquor or import, export, possess or transport liquor.
Section 13: This provision specifically deals with the prohibition and restriction on the people for the sale of liquor, its consumption or even the use of any material or apparatus for the manufacture of any liquor.
Section 23: This Section deals with the restriction and prohibition posed on people to solicit the use of any hemp or any intoxicant or restriction to do any act which instigates the general public to commit the offence.
Section 24: Restriction and prohibition of publication and advertising of any sort of intoxicant has been dealt with under this provision.
Section 39: Section 39 gives the State Government, the power to permit the use or consumption of foreign liquor on warships, in messes and canteens of armed forces and in troopships.
Section 139(c): This provision of law has given the State Government the power in respect of granting licences. The State Government has the power to exempt any person or institution from any conditions or regulations relating to the licences.

Government of India Act, 1935

Section 297

Section 297 of the Government of India Act, 1935 mentions the prohibition of certain restrictions on internal trade and is produced in verbatim below:

“Section 297(1): No Provincial Legislature or Government shall-

by virtue of the entry in the Provincial Legislative List relating to trade and commerce within the Province, or the entry in that list relating to the production, supply, and distribution of commodities, have power to pass any law or take any executive action prohibiting or restricting the entry into, or export from, the Province of goods of any class or description;
or by virtue of anything in this Act have power to impose any tax, cess, toll, or due which, as between goods manufactured or produced in the Province and similar goods not so manufactured or produced, discriminates in favour of the former, or which, in the case of goods manufactured or produced outside the Province, discriminates between goods manufactured or produced in one locality and similar goods manufactured or produced in another locality.

Section 297(2): Any law passed in contravention of this section shall, to the extent of the contravention, be invalid.”

Seventh Schedule

The Seventh Schedule of the Government of India Act, 1935 comprises the three Legislative Lists that are enumerated as follows:

List I or the Federal Legislative List encompasses the subjects that were solely under the purview of the then Federal Government of India such as Defence forces, external affairs, fisheries, banking regulations, posts and telegraphs, import and export across custom frontiers etc.
List II or the Provincial Legislative List comprises the subjects that were under the purview and control of the Provincial Governments such as public order, police, acquisition of land, education, salaries of provincial ministers, water, forests, agriculture, adulteration of foodstuffs, intoxicating liquor and narcotic drugs etc.
List III or the Concurrent Legislative List as the name suggests comprises the subjects of common interest to both the Governments, Federal and Provincial Governments such as criminal laws, marriage and divorce laws, trust and trustees, stamp duties, labour regulations, factories etc.

Issue-wise judgement of the case

The constitutional bench of the Supreme Court with the full majority gave the following judgement:

Whether there were any adequate grounds in order to declare the Bombay Prohibition Act, 1949 invalid as a whole? And whether it is contravening the fundamental right enshrined under Article 19(1)(g) of the Indian Constitution?

While sustaining the impugned statute in question, the Supreme Court declared that the Act was pith and substance of a subject matter that was under the purview of the State Legislature, even though it incidentally trenched upon a subject matter of the Centre. The Legislature of the State has the authority to prohibit in entirety, the possession, sale, and usage of intoxicating liquors that are listed under Entry 31 of List II of the Government of India Act, 1935, hence, there does not lie any question of dispute over the subject matter jurisdiction of the State and the Centre. The Apex Court in its own words stated that “in the present case, as already pointed out, the words “possession and sale” occurring in Entry 31 of List II are to be read without any qualification whatsoever, and it will not be doing any violence to the construction of that entry to hold that the Provincial Legislature has the power to prohibit the possession, use and sale of intoxicating liquor absolutely”. The Court even stated that while assuming that the encroachment, if any, is only incidental and hence, cannot affect the competence of the Provincial Legislature to enact the law in question.

The Supreme Court therefore declared only the certain provisions of the impugned Act as invalid and not the Act as a whole stating that the legislature has totally prohibited the use and possession of all liquids containing alcohol except under permits to be granted by Government contravening the fundamental right under Article 19(1)(g) of the Indian Constitution. These provisions were in relation to the possession of alcohol-infused medicines and other related articles and also to trading them. However, the other provisions along with the rest of the Act were declared to be legal and valid. Thus, the Supreme Court held that it could not hold the entire Act in question as invalid due to some provisions being invalid and illegal.

The Apex Court in its own words held that “we hold that to the extent to which the Prohibition Act prevents the possession, use and consumption of non-beverages and medicinal and toilet preparations containing alcohol for legitimate purposes the provisions are void as offending against Article 19(1)(g) of the Constitution even if they may be within the legislative competence of the Provincial Legislature.”

Whether the Bombay Prohibition Act, 1949, trespasses upon the authority of the Federal Government to make laws in relation to the “import and export” in order to ascertain the maintainability of the judgement of the High Court with respect to the specific provisions of the impugned Act that were declared as void by the High Court?

The Supreme Court held that the Bombay Prohibition Act, 1949 did not encroach on the authority of the Federal Government to make laws in relation to “import and export” while stating that the word used in Entry 31 of List II, i.e., “possession and sale” without any modification and that the Entry 19 of List I consisting of the word “import” does not by itself include the possession and sale of any article which is imported in the country. Hence, there cannot be any conflict between both the entries and hence, leading to the court’s conclusion of the issue.

Rationale behind the judgement

The Apex Court relied upon the applicability of the doctrine of pith and substance while giving the verdict in this present landmark case. As argued by the parties, the validity of the Bombay Prohibition Act, 1949 was in question. The matter in issue was whether the Act falls under Entry 31 of List II of the Government of India Act, 1935 which corresponds to Entry 8 of List II of the Seventh Schedule in the Constitution of India namely, “intoxicating liquors”, or under Entry 19 of the List I of the Government of India Act, 1935 corresponding to the Entry 41 of the List I in the Seventh Schedule of the Constitution of India namely, “import and export of liquors across custom frontiers”, which is a subject-matter in the competence of the legislative powers of the Central government. It was argued that putting restrictions on the sale and purchase, usage and transportation of liquor would affect its trade. The Supreme Court while doing away with the arguments upheld the constitutional validity of the Act because the true essence of the Act fell under Entry 31 of List II, and not under Entry 19 of List I of the Government of India Act, 1935, even though the Act slightly trespassed upon the power of the legislation of the Federal Government (now Central Government).

The Apex Court also dealt with the American doctrine of original package which stated that importation should not get over as long as the goods are in their original package. However, the Court held that the doctrine is not applicable in India given the legislative framework established by the Government of India Act, 1935, and the Indian Constitution, which both clearly and precisely define the various subjects as mentioned in the Legislative Lists under the Seventh Schedule.

Overruling of the judgement of State of Bombay vs. FN Balsara

The judgement in the present case was overruled by the judgement laid down in Synthetics and Chemicals Limited and others v. State of Uttar Pradesh and Ors (1989) on the grounds of imposition of complete restriction upon the therapeutic remedies which involved the usage of alcohol. The Apex Court in this case stated that unless the trade of intoxicating articles is for human use, it cannot be considered as obnoxious. However, if taxes are levied upon the liquors that are fit for human consumption, it will be considered as valid.

While deciding the case, the court relied upon the reasoning laid down in the FN Balsara case. It stated that the State Legislature will be required to collect taxes on the possession of alcohol suitable for human use, since alcohol is classified as a luxury good. But, as mentioned by the Attorney General in his arguments, State Legislatures will not be able to impose taxes on alcohol that is unfit for human consumption because it is not a luxury. It was decided that Parliament would impose any alcohol taxes not already covered by another Entry in Lists I or II.

Analysis of the case

In this case, the Bombay Prohibition Act, 1949 was challenged on the grounds that it prohibited the sale and keeping of liquor in the State and was also in question for incidentally encroaching upon the import and export of liquor through the custom frontiers which is considered to be a subject of the legislature in the competence of the Central Government. It was argued that such restrictions on the purchase, usage and consumption, possession and sale of liquor will affect its import and export.

The Apex Court while giving the verdict in this case upheld the Act as valid because the true nature and character of the Act fall under the competence of the legislature of the State and was not a subject matter under the Union List even though it incidentally trespasses upon the law-making powers of the Parliament.

Incidental Doctrines to the case

The present case is a significant example of how the Indian judicial system examined the scope of legislative competence and developed the doctrine of “pith and substance” and the doctrine of “severability or separability”. Let us discuss the doctrines in detail.

Doctrine of Pith and Substance

When any law is made as a subject of one entry in one list and touches upon another entry in another list, then the question may be raised about the competency of the Legislature to enact that law. In such a situation, the doctrine of pith and substance provides a solution.

What do you mean by the doctrine of pith and substance?

The doctrine of pith and substance is considered as a constitutional principle. The phrase “pith and substance” denotes the “true nature and character” of legislation. According to this doctrine, it is the duty of the court to see what is the “pith and substance” of the law which means that the court has to see the true nature and character of the law and the purpose to be achieved by that law. It is required to see the law in reality and in substance with respect to one matter and not on the other matter. Therefore, it can be said that the applicability of this doctrine is to have a check on the legislative competence of a given law and examine its “substance”. In Bank of New South Wales v. The Commonwealth (1948), the bench gave the following examples while explaining the doctrine of pith and substance:

Example 1: If the law is made with respect to Income Tax, anybody earning income will have to pay taxes according to that law and it cannot be said that it refers to a specific class of persons like doctors, CAs, or lawyers earning salaries etc. Even though the law may refer to them, it will apply to all whoever earns income.

Example 2: If there is a building which is being constructed for a school and the law is with respect to such building such as for instance, the Building Regulation Act. Though, it refers to the school, but will apply to all such buildings like hospitals, complexes etc.

Significant features of the doctrine of pith and substance

It was necessary to adopt this doctrine in order to verify the encroachment of one subject of law on the other.
In order to test the true nature and the character of a particular law, the adoption of this doctrine proved to be an important step in the history of the Indian Judiciary.
It became important to bring the application of this doctrine in the Indian judiciary to foresee if the State has the power to legislate upon any subject mentioned in List III (Concurrent List) of the Seventh Schedule under the Indian Constitution.

Indian Constitution and the doctrine of pith and substance

As adopted under the Government of India Act, 1935 as well as the present Constitution of India, this doctrine finds its place under the purview of Article 246 which talks about the subject matter of laws that are made by the State Legislatures and the Parliament along with the substantial interpretation of the Seventh Schedule. This doctrine has been a significant step in creating a balance amongst the competencies of different legislatures (Union and the State).

The following case laws are an example of how the Indian judiciary adopted this doctrine in an efficient manner in order to give a flexible approach to the otherwise stringent legislative framework.

The Supreme Court explained the application of the doctrine of pith and substance in Kartar Singh v. State of Punjab (1994) stating that the essence and the significance of the substance of legislation must be opined in such a situation when it is witnessed that the legislation on a particular subject in one list is touching upon the subject in another list of the Constitution.

Further, the Apex Court in the case of State of Rajasthan v. Vatan Medical and General Store (2001), held that whenever a situation arises where legislation is enforced upon a subject of State List, it must not be held invalid by the reason of another legislation touching upon the similar subjects in either of the other lists.

Even in the case, Prafulla Kumar Mukherjee v. Bank of Commerce, Khulna (1947), wherein the constitutionality of the Bengal Money Lenders Act, 1946 was challenged stating that the promissory notes were a subject of Union List and not State List, the Privy Council upheld the constitutionality of the said Act. It was held that the concerned Act in question was in pith and substance of the law with respect to the subject of “money lenders” and that it was a subject of the State List even if it overlaps with the subject of promissory notes which were mentioned as a subject of Union List.

Doctrine of Severability

The “doctrine of severability” states that if a part of any law is inconsistent with the fundamental rights, then the rest of such law will remain valid if it is severable from the rest of the Act. It applies to both, pre-constitutional and post-constitutional laws. In case the violating part of the statute is not severable from the rest of the statute, then the whole statute will be declared as void. The basis of this doctrine lies in the concept of “to the extent of such inconsistency”.

This doctrine was applied by the Supreme Court in A.K. Gopalan v. State of Madras (1950), and the court observed that Section 14 of the Prevention of Detention Act, 1950 was violating Article 14 of the Constitution so it was declared void by the Supreme Court but the rest of the statute was separable and hence, operative.

In the landmark judgement of Kihoto Hollohan v. Zachillhu and Ors. (1992), para 7 of the Tenth Schedule which was inserted by the 52nd Constitutional Amendment in 1985 was declared unconstitutional by the Supreme Court because it had violated the provisions of Article 368(2) and encroached upon the basic structure of the “judicial review” in the Indian Constitution. However, the rest of the Schedule was held to be operative.

Now the question arises, how does this doctrine find its relevance in the case of State of Bombay v. F.N. Balsara? The Supreme Court has clearly stated that the Bombay Prohibition Act, 1949 was not unconstitutional and invalid as a whole, rather, few of its provisions which were invalid to the extent of Part III of the Constitution were separable from the rest of the statute and as a result of the application of this doctrine, eight Sections of the Bombay Prohibition Act, 1949 got deleted and severed from the rest of the statute which was held to be operative.

Conclusion

The present case is a perfect depiction of the application of the constitutional doctrine of “pith and substance” by the Supreme Court. This doctrine is applicable in such situations wherein the appropriateness of a statute in relation to a particular legislation or a statute is questioned with reference to the subject matters present in different legislative lists under the Seventh Schedule of the Indian Constitution. The reason behind this is that a law dealing with an entry into one legislative list within the authority of the legislature concerned can also coincide with the entry into another legislative list, which is not within the authority of that legislature. In such situations, what has to be observed is whether the pith and substance of the statute is the true essence of the legislation in question.

Though the rule applies to both, the Union and the State legislatures, and helps them to a similar extent. However, even though the Parliament is the principal legislature as the subject matters in the Union List of the Seventh Schedule of the Indian Constitution are comparatively more comprehensive, and its competence is more substantially and broadly described. The legislatures of the States benefit a lot because the general rule allows the State Legislature to incidentally encroach into wide-ranging subject-matters of the Union List. This enables the State Legislature to even frame the legislations on those subjects that may incidentally encroach upon the subject-matters of the Union Legislature.

Frequently Asked Questions (FAQs)

What is a writ of mandamus?

The literal meaning of the writ of mandamus is “we command”. It is issued when a court commands a public authority or a lower court to perform its functions appropriately. It may be issued against any lower court, a public body, a company, a tribunal or even the government, however, it cannot be issued against a private individual. It can be issued to restrict a public body from implementing any unconstitutional law. This writ, also being known as “judicial remedy” seems both positive as well as negative.

What is meant by the doctrine of pith and substance?

According to this doctrine, it is the duty of the court to see what is the “pith and substance” of the law, which means that the court has to see the true nature and character of the law and the purpose to be achieved by that law.

How far the provisions of the Bombay Prohibition Act, 1949 were held valid in the present case?

Supreme Court held the Bombay Prohibition Act, 1949 to be valid as it was of the opinion that the Act was in the resonance of its pith and substance falling under List II of the Seventh Schedule, i.e., the State List even though the Act might have an impact on the import of liquor and such other substances.

Under which Article of the Constitution, the genesis of the doctrine of pith and substance can be found?

Genesis of the doctrine of pith and substance can be found underlying Article 246 which talks about the subject matter of laws that are made by the State Legislatures and the Parliament along with the substantial interpretation of the Seventh Schedule.

Under what circumstances, the Supreme Court can exercise its appellate jurisdiction?

As per Article 132 of the Indian Constitution, an appeal lies to the Supreme Court from any judgement, decree or order of a High Court if two conditions are satisfied:

That the case involves a substantial question of law as to the interpretation of the Constitution; and
That the High Court issues a certificate under Article 134A to that effect.

What is meant by the doctrine of severability?

According to the doctrine of severability, any specific provision which is against the constitutional framework or offends the constitutional limitation but is separable in nature from the rest of the statute, the court can declare that specific provision as void and not the statute as a whole.

Which case overruled the verdict that was passed in this landmark judgement of the State of Bombay v. F.N. Balsara?

The judgement in the case of the State of Bombay v. F.N. Balsara was overruled by the judgement passed in the matter of Synthetics and Chemicals Limited and others v. State of Uttar Pradesh and Ors. (1989). In this case, the Apex court held that the State Legislature had no power to impose duty or tax on industrial alcohol, which is unfit for human consumption and that could only be levied by the Centre. The basis of this judgement was that there cannot be an imposition of full prohibition or restriction upon the therapeutic substances, including alcohol.

References

https://blog.ipleaders.in/liquor-right-privacy-examining-limits-privacy-india/

Father Benedict vs. State of Kerala (1967)

By

Vanshika Kapoor

-

July 3, 2024

0

This article is written by Kruti Brahmbhatt. This article is an exhaustive case analysis of Father Benedict v. State of Kerala (1967). It provides a detailed understanding of the relevant provisions, facts of the case, issues raised, arguments made, as well as the final judgement of the court. It primarily deals with the concept of circumstantial evidence.

This article has been published by Shashwat Kaushik.

Table of Contents

Introduction

Resolving criminal cases without any eye-witnesses in India is all about proving the case on the basis of circumstantial evidence. In simple terms, circumstantial evidence refers to the facts that, when examined along with other relevant facts, prove the guilt or innocence of a person. However, these facts include the systematic collection and presentation of evidence before the court. This bestows a huge responsibility on the police officers and the prosecution with respect to linking the evidence in a manner that proves the guilt of the accused.

The Indian judiciary has witnessed numerous such cases, wherein the prosecution depends on circumstantial evidence to prove their allegations. The case of Father Benedict v. the State of Kerala (1967) is an example of the same. The prosecution in this case relied on circumstantial evidence to prove that the accused, who was a Catholic Priest in a Church, guilty of abduction and murder of a woman.

Details of the case

Case name: Father Benedict v. The State of Kerala

Case number: 27 of 1966 & Crl. Appeal No. 356 of 1966

Appellant: Father Benedict

Respondent: The State of Kerala

Court: The High Court of Kerala

Bench: Justice P.T. Raman Nair and Justice V.P. Gopalan Nambiyar

Case type: Criminal Appeal

Date of Judgement: 07/04/1967

Equivalent Citations: 1967KLJ509

Facts of the case

In the present case, a 37 year old Roman Catholic Priest, was accused of abducting Mariyakutty, a 43 year old woman, and later murdering her.

Mariyakutty, the deceased in the present case, was a widow living with her mother and her five children in Avalookunnu, a town in Alleppey. She had been married three times. Five years before she died, she left her last husband due to the fact that he was paralysed and could not move or take care of himself. Her youngest son, Joy, was born about two years prior to her death, which was also the time when her third husband passed away.

The accused, Father Benedict, had managed two different churches from April 1960 to May 1964. One of those churches was the Church of Kannampali, which was located about 3 to 4 miles away from the scene of crime. He was the Vicar of Chakkarakkadavu Church from May 1962 to May 1964. In May 1962, Father Benedict was transferred to Chaganacherry, where he was assigned as the manager of St. Joseph’s Orphanage, opposite the Archbishop’s Palace.

On 15th June 1966, as per the information submitted as evidence by the deceased’s mother and daughter, Mariakutty left her place at about 1:00 PM, after which she never returned. Prior to this, on 4th June,1966, Mariakutty informed her mother that Father Benedict had asked her to go to the privately owned bookstore, which is located opposite the palace gate near the orphanage on the 15th June. The next morning, which was 16th June, on the road leading from Mannamaruthi towards the forest, across a stream called the Madatharuivi, an unidentified woman’s body, which was mostly naked from the waist up and facing upwards, was found. The deceased’s clothes, which were a bodice and a chatta (jacket), were drawn up to the armpits, exposing her breasts. The deceased’s throat was cut from ear to ear. Apart from this, there were numerous wounds on the chest and abdomen. There was also an injury covering the whole of the left side of the face. There were no clothes or jewels missing from the body. Furthermore, there was a bed sheet covering the lower half of her body, and an umbrella was found lying nearby.

This information was given to the police station at Ranni, which was 4 miles away from the residence of the owner of the land on either side of the concerned road. This landowner found the body at about 10:00 AM. He was informed about the same by his servant, who has not been named as a witness in the case.

As per the statement recorded by the sub-inspector, a case was registered under Section 302 (punishment for murder) of the Indian Penal Code, 1860, and an investigation was carried out accordingly. The sub-inspector went to take a look at the crime scene, and since the body was unidentified, he was accompanied by a photographer to photograph the same. The sub-inspector noted down his observations of the surroundings as well as of the body in his inquest report.

On 17th June, an autopsy was conducted by the doctor. The body was still unidentified and unclaimed. Hence, since the landowner was the one to inform the police about the body, it was passed on to him for the purpose of disposal. He went on to bury the body.

From the photograph taken, the mother and daughter of the deceased identified the body as Mariyakkutty’s. They even testified about it. Both of them referred to a scar below Mariyakutty’s left breast, which was about the size of a rupee. The witnesses confirmed this identification and even the doctor who conducted the autopsy noticed the same. Additionally, Mariyakutty’s daughter testified about the clothes, jewels and umbrella that were found with the body. This was sufficient to believe that the body was Mariyakutty.

Furthermore, it was found that, on 15th June, a man who lived at the top of a hill about 150 yards from the scene of the crime had woken up from his sleep upon hearing the cry, “My God! I’m being killed! My head is broken!”. The man tried to reach out by shouting twice and asking, “Who is that?” but received no response. The man woke his wife up and narrated what happened. They finally assumed it to be a quarrel between the carpenter and his wife, who were living nearby, and went back to sleep.

The Sessions Judge convicted Father Benedict under Section 364 (kidnapping or abducting in order to murder) and Section 302 of the IPC. He was charged with the abduction and murder of Mariyakutty. For abduction, he was sentenced to rigorous imprisonment for 5 years, and for murder, he was given a death sentence.

The present case reached the Supreme Court via an appeal made by Father Benedict, against the decision of the Sessions Judge.

Medical evidences

The medical evidence showed that the deceased had suffered numerous wounds, the details are as below mentioned:

There were six penetrating 1”× ½” deep wounds on the chest and abdomen, three incised wounds on the neck, out of which two were on the left side. The third wound extended from behind the right ear and cut through all the structures of the neck including the great blood vessels, the trachea and oesophagus. This wound was 9”× 2” ×6” deep.
There was a contusion which covered the whole left side of the face and the left upper canine tooth had fallen.
On the right side of the forehead, there was a lacerated (deeply cut) wound, which was 3”× 2” ×1” deep.
There were multiple small abrasions on the chest, abdomen and the left elbow joint. Due to these wounds on the chest and abdomen, there were two incised wounds on the right lung, two on the left lung. Even such wounds were found on the liver and one on the spleen. All these injuries were ante mortem and were 1”× ½” × ½” deep.

(Note: This information is simply for a detailed analysis of the case and this medical evidence was not a point of contention in the original trial as well as the appeal.)

Issues raised

Whether the prosecution could prove that the accused had sufficient motive to murder the deceased?
Whether the witnesses and evidence presented are reliable?
Whether the prosecution could prove that the accused was in possession of incriminating objects?

Legal aspects involved

Provisions under the Indian Evidence Act, 1872

Section 7: This Section deals with facts, which are occasion, cause or effect of facts in issue. It means that any fact which is the reason behind the occurrence of an event, either directly or not, or is a result of something which is crucial for the occurrence of the event, is considered a relevant fact in the case.
Section 11: This Section prescribes two situations wherein facts which are otherwise not relevant become relevant-

If the presented facts are inconsistent with any fact in issue or relevant fact; and
If the presented facts, either by themselves or in connection with other facts, strongly indicate the existence or non-existence of any relevant fact.

In the case of Rajendra Singh v. Ramganit Singh (1954), the Court observed that Section 11 declares those facts to be admissible, which prove or disprove the main fact or the fact in issue. It was observed that the facts that are to be proved must be closely connected with the fact in issue or the relevant fact.

Section 25: This Section prohibits the confession made to a police officer to be proved. It aims to prevent the chances wherein a person is forced to make a statement.

In the case of Queen Empress v. Babu Lal (1989), the Court stated that there have been numerous instances wherein the police officers have used torture techniques to coerce confessions and to record such statements, which secure convictions. If the confessions made before the police officers are made admissible, the citizens would not be protected from their cruelty.

Section 26: This Section prohibits the use of confession made by the accused, while he/she is in police custody, unless it is made before the Magistrate.

The Supreme Court in the case of Kishore Chand v. the State of Himachal Pradesh (1990), had stated that the objective behind Section 26 is to ensure that the authority does not misuse their power.

Section 32 (1): According to this Section, when there arises a question of the cause of death of a person, a statement made by the dead person, regarding circumstances of his death, can be used by a court to determine the cause of his death. becomes relevant when a person provides information regarding the cause of his death.

The Supreme Court in the case of Ulka Ram v. State of Rajasthan (2010) held that when a person makes a statement that is related to the cause of his death or to any circumstances of a transaction that resulted in his death, it is admissible in evidence and termed as dying declaration.

Provision under the Code of Criminal Procedure, 1973

Section 162: This Section imposes prohibition on the use of statements made during the police investigation, as corroboration. However, these statements can be provided for inquiry or trial in the case, only if written in the police diary, reduced in writing and signed by the person.

Motive

Section 8 of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act) deals with the motive, preparation and previous or subsequent conduct. It prescribes any fact to be a relevant fact, if there seems to be a motive of any kind or preparation for any conduct relating to the facts of the case.

As per this Section, any fact that indicates a motive or preparation of the offence becomes relevant. It aims to refer to the objective behind acting in a certain way. The motive of committing an act may either be an emotion or any such state of mind which provoked the person to act in a certain way. Any evidence becomes admissible in the court of law, if it reflects the motive for the crime.

In the case of Nathuni v. State of Bihar (1998), the Supreme Court held that the question of motive in circumstantial evidence holds immense importance. The Court stated that the absence of the motive for committing an act shall favour the accused.

The Supreme Court, in the case of Ravi v. State of Maharashtra (2019), held that absence of motive does not immediately negate the prosecution’s case. Several times, human beings act on the spur of the moment without much thought. Hence, if there exists strong evidence against the accused, such as the presence of a reliable eye-witness, it is not important that the motive be definitely determined.

Circumstantial evidence

Circumstantial evidence is not defined under the Indian Evidence Act, 1872. However, it is covered under Section 3 of the Indian Evidence Act, 1872. As per this, evidence can be divided into two categories, namely, direct evidence and circumstantial evidence. Circumstantial evidence is generally referred to when there is an absence of direct evidence.

Circumstantial evidence refers to a chain of evidence that can be brought together to create the links required to determine the guilt or innocence of the concerned person. On several occasions, cases have been decided purely on the basis of circumstantial evidence, due to a lack of direct evidence. In the matter at hand, there were no eyewitnesses or any confessions from the accused. The Court had to rely on circumstantial evidence.

To understand the difference between circumstantial evidence and direct evidence, click here.

Arguments of the parties

Appellant

The appellant denied all the allegations made by the prosecution. He claimed that he did not know Mariyakutty or about her death and had no relation to the case. He claimed himself to be innocent and went on to state that he was at the Archbishop’s Palace. After having dinner, he went to sleep in his room in the orphanage at about 10:30 P.M.

Respondent

The allegations put forward by the prosecution were that, on 15th June, the accused had taken Mariyakutty to a spot where he inflicted harm on her body and murdered her. As per the submissions in the Trial Court, he took Mariyakutty to that spot by citing the reason for engaging in sexual intercourse in an open place without facing any interruptions.

The prosecution alleged that the accused had engaged in criminal intimacy with the deceased. According to the prosecution, the youngest son of the deceased, Joy, belonged to the accused and the fear of being exposed led him to commit the present crime.

However, the prosecution did not have any direct evidence and, hence, entirely depended on circumstantial evidence to prove his case. The following are the six main circumstances on which the prosecution relied in its case.

The accused had a strong motive for the murder

As per the prosecution, the accused, being the Vicar of the Chakkarakkadavu Church, was responsible for the distribution of free milk powder and wheat to the poor. Mariyakutty, being poor, used to receive the same from him. The prosecution claimed that this eventually led them to be intimate with each other, which resulted in the birth of the child, Joy. In June 1964, a month after the accused got transferred to Changanassery, Mariyakutty used to visit him once or twice a month, along with Joy. She would receive money from him (Rs. 50/-, Rs. 100/-, Rs. 200/- at a time) in order to buy clothes and jewels and live a comfortable life. Due to these frequent visits, the accused was instilled with a fear of blackmail and exposure, which eventually led him to murder her to get rid of the trouble.

To prove the above-mentioned claims, the prosecution presented oral testimonies of three witnesses, namely, the deceased’s mother (PW- 2), the deceased’s daughter (PW- 3) and the store owner from whom she used to buy things on credit (PW- 20) –

PW- 2 and PW- 3, submitted that the deceased conceived the child, Joy, at the time when her husband was paralysed and bedridden, and hence he had no relation with her.

It was also observed that she was struggling financially until the birth of the child, but thereafter, she used to come into money once or twice a month, when she would go somewhere. This enabled her to live comfortably.

As per PW- 20, the deceased used to buy groceries from him on credit. She used to pay him once or twice a month, about Rs. 50/- at a time.

The accused was last seen alive when with the accused. They were spotted proceeding towards the crime scene approximately 30 minutes prior to the time of murder and were close to 11/4 miles away from the said scene

In order to prove this circumstance, the prosecution relied on the testimonies of the deceased’s mother (PW- 2), the deceased’s daughter (PW- 3), a worker (PW- 6), a taxi driver (PW- 13) and a driver of a private car (PW- 14)-

As per PW-2, the deceased informed her on 4th June, that she was asked by the accused to visit with him at Changanassery on 15th June. Accordingly, the deceased left her house on 15th June, alone, at about 1:00 PM, as mentioned by PW- 3 as well.
PW- 14 stated that on 15th June, while he was at a petrol pump in Thiruvalla, at about 10:00 PM, he was approached by the accused and a woman, who he identified as the deceased. The accused asked him whether he could take them to Mannamaruthi, to visit his sick mother. However, PW- 14 refused to do so, on the grounds that his car was not a taxi. Instead, he arranged a taxi for them, which they finally travelled in. PW- 14 also pointed out that the accused was clothed in a cassock, had spectacles on, and also carried a three-celled electric torch. The woman was in traditional attire and carried an umbrella and a two-cell electric torch.
PW- 13’s statement was not consistent with PW- 14’s statement. He held that he had not given the accused a ride in his taxi on 15th June. His account book confirmed the same. He stated that neither recognised the accused nor did he ever travel in his taxi.

Later on, with the permission of the court, PW- 13 was cross-examined by the respondent, wherein it was found that he seemed to have contradicted his previous statement to PW- 42 (the Deputy Superintendent of Police). Therefore, that previous statement does not amount to substantive evidence, and PW- 13’s statement was not taken into consideration. It did not refute PW- 14.

PW- 6 claimed that on 15th June, while working near Mannamaruthi junction, he saw a car approach, from which emerged the accused and a Christian woman. They proceeded to walk towards the scene of the crime. PW- 6 stated that he saw both of them clearly under the light of the electric lamp he had with him. He recalled that the accused was wearing the cassock of a Catholic priest and spectacles. He was also carrying an electric torch in his right hand, and a bag under his left armpit. The woman was wearing a mundu, chatta and neriyathu (upper cloth) and was carrying an umbrella and an electric torch. When PW- 6 saw the body of the murdered woman the next day, he recognised her as the woman he had seen accompanying the accused the previous night.

Soon after midnight, the accused was seen in a considerably agitated state within about 30 minutes of the murder. He was seen at a place which was about six furlongs from the scene, going towards the Archbishop’s Palace in Changanassery

The prosecution presented PW- 5, a mechanic at Chandrika Motor Service (PW- 7), a welder (PW- 8), owner and driver of a taxi (PW- 9) and an attendant who supplied petrol (PW- 19) as the witnesses to prove this circumstantial evidence-

PW- 5 and her neighbour Thanka, were taking her old mother-in-law to the hospital to visit her dying grandson. As per PW-5, she saw the accused as she approached Mannamaruthi junction. She described him as a Catholic priest carrying an electric torch in his right hand, and a blue bag under his left armpit, along with an umbrella. She stated that the accused was walking at a fast pace, as if he were afraid, anxious or agitated. The accused was on the same path as PW- 5 for about a 100 feet. While Pw- 5 proceeded in the direction of her house, the accused continued on that path.
PW- 7 was at his workshop about 3.5 miles south of Mannamaruthi Junction. He stated that at about 1:30 AM, on the night of 15th June, while he was standing outside after completing their work, the accused approached them in seeking a car to go to Thiruvalla to search for a doctor and some medicine for his father, who was seriously ill at Mannamaruthi Hospital. He described the accused as a Catholic priest carrying an electric torch in his right hand and a blue bag under his left armpit, along with an umbrella. PW- 7 took the accused to PW- 8, who owned a private car.
PW- 8 agreed to drive the accused to Thiruvalla. He described the accused in the same manner as PW- 5 and PW- 7 did. While PW- 7 was sitting in the front seat, the accused got into the back seat. The accused gave PW- 8 a 10 rupee note for the purpose of refilling fuel in the car. However, he was in such a hurry that he refused to wait to collect the change. PW- 19 confirmed the same.
When the car reached S.C. Junction, the accused paid PW- 8 Rs. 10 and left. At 3:00 AM, while returning after having coffee, PW- 7 and PW- 8 came across the accused, around 50 yards away from the place where they had dropped him. PW- 8 asked him whether he wished to hire a car again. The accused answered negatively.
PW- 9, stated that around 3:30 AM, a Catholic priest, carrying an umbrella, a blue bag, and an electric torch, approached the driver for a ride to Changanassery. Around 4:00 AM, about five miles away from Thiruvalla, the accused was dropped off in front of Changanassery Palace. He paid Pw- 9 Rs. 6.

The bedsheet found on the body of the deceased belonged to the accused

In order to prove this circumstance, two dhobis (PW- 10 and PW- 11) were presented-

Both PW- 10 and PW- 11 were persons who washed the accused’s clothes. According to their statement, they took his clothes on 2nd June and returned them a week later. They identified the bedsheet of the accused because it had their specific laundry marks. PW- 10 marked the accused’s clothes with the letter “N” in black, and PW- 11 marked the accused’s clothes with “3” in red.

During a chemical examination, human blood stains were found on the knife, which was recovered from the scene of crime, as pointed out by the accused.
During a chemical examination, human blood stains were found on the blue bag, which the accused was carrying with him, according to the witnesses.

Judgement in Father Benedict vs. State of Kerala (1967)

The circumstantial evidence relied upon was not established. There were neither any eyewitnesses nor did the accused confess to the crime. The prosecution presented a story and evidence to favour the same. The theories presented before the court were mere speculations from the prosecution’s side.

Taking these into consideration, the Court acquitted the accused and ordered his release.

Rationale behind the judgement

First circumstance

The Court observed that the prosecution’s witnesses had not seen the accused and the witnesses themselves, in any manner, do not have any personal knowledge about the matter in hand. Everything they mentioned was based only on what was told to them by Mariyakutty. These statements conveyed by Mariyakutty were clearly hearsay, which would not fall under Section 60 of the Evidence Act. No other provision of this Act holds it relevant either. Meanwhile, the prosecution contended that these statements of Mariyakutty would be considered under the scope of Section 32(1), as well as Section 7, Section 8 and Section 11 of the Evidence Act.

The Court explained that under Section 32(1), not every statement made by a deceased person is a relevant fact, in cases where the question is regarding their cause of death. A statement can be considered as a relevant fact only when it is about the cause of the person’s death or about any circumstances of the transaction that caused the death. In the present matter, the statements made by Mariyakutty certainly did not reflect the cause of her death. They were observed to be too remote from the chain of events that might have caused her death.

A reference was made to Narayana Swamy v. Emperor (1939), wherein it was observed that the circumstances stated must be the circumstances of the transaction. The general emotions of fear or suspicion, or statements not directly related to the cause of death, are not admissible. However, statements made by the deceased, which include his intention to visit the location where the crime was committed or state any reasons to proceed to such a location, or the fact that he was going to meet a particular person or was invited by a person, would all be circumstances of the transaction. This would stand regardless of whether the person was known or unknown or was not the person who was accused. These statements have the potential to exonerate or clear up the guilt of the accused. This Court went on to clarify that the terms “circumstances of the transaction” and “circumstantial evidence” are not exactly the same. The former’s scope is narrower than both “circumstantial evidence” and “res gestae.” These circumstances must be closely connected to the concerned incident. The present circumstances, which suggested a possible motive for the murder, cannot be directly related to the actual transaction behind the death of Marriyakutty. Additionally, the Court disagreed with the observations in T. Retnakaran v. State of Kerala (2005), wherein the murdered woman was pregnant by the accused and stated that the pregnancy merely indicates a motive and cannot be considered to be directly connected to the murder. Any statement made by the deceased about such a situation cannot be admissible under Section 32(1). The Court reiterated its stance while citing the case of Re: Baggam Appalanarasayya vs Unknown (1940), wherein statements made by the deceased, which suggested the motive of the accused, were held to be inadmissible.

The Court also turned its attention towards the case of Sarayanabhavan v. State of Madras (1965), in which Saravanabhavan was accused of three murders. He was scolded by Peramia (one of the deceased), who told him that he would revoke the will, in which the accused was the legatee. Peramia relayed this incident to Balasubramaniam, the witness. The same night, the three murders took place. However, this Court noted that while admitting Peramia’s statement as proof of a transaction relating to the murders, the judges did not refer to Section 32(1). Instead, they must have referred to Section 6.

The Court explained that, apart from being directly connected to the issue, statements are usually not admissible unless certain conditions are met. A fact is relevant only if it is proved by direct evidence and not hearsay evidence, unless the statement is relevant under Section 6, Section 8 explanation 1, Section 14 or Section 32 of the Evidence Act. Furthermore, an earlier statement of a witness could be admissible under Section 157 for corroboration or under Section 145 for contradiction. The Court referred to the case of Allijan Munshi v. State of Bombay (1969), wherein the statement was held to be relevant under Section 8 explanation 1, since it was made while carrying out an action that had an impact on the facts.

In the present matter, the Court found it highly unreliable to consider a statement by a woman regarding the father of the illegitimate child, which was not even cross-examined. It was held that the prosecution had failed to prove the motive of the accused to murder the deceased.

Second and third circumstances

The Court found that there might exist a degree of artificiality in the manner in which all of the presented witnesses described the attire and movements of the accused as well as of the deceased. Great details were mentioned. Witnesses described the accused with a three-cell electric torch in his right hand, a blue bag under his left armpit, an umbrella precisely hanging from his arms and spectacles. The deceased was described as wearing a mundu, chatta and neriyathu (upper cloth).

The Court questioned the probability of some of the testimonies, such as, if the accused was on the way to commit a murder, why did he come in close contact with the witness, or if he was escaping after committing a murder, why did he go near someone who could see him clearly with the help of a torch? This was considered as unusual behaviour for a person who had committed a murder.

The Court further stated that the witnesses had seen the accused for the first time at night, by artificial light, and from some distance. Furthermore, no lineup was conducted for identification as well. This would not have given the witnesses an opportunity to observe the accused closely. Under such circumstances, there are high chances that the witnesses could make mistakes in identifying the accused. The Court found that the identification of the accused by the witness was more influenced by suggestion and can’t be held reliable. It also raised serious questions regarding the reliability of the mechanic’s (PW- 7) statements, who claimed that the accused was wearing white pants with black stripes and a shirt, while there exists evidence that the accused was in his clerical garb when he was seen at the police club. The Court also emphasised that it was crucial to conduct an identification parade in the present situation.

The statements of these witnesses were refused to be considered evidence on the ground that they were not satisfactory.

Fourth circumstance

The Court observed that MO-13, which was supposed to be a red and white checkered bedsheet, as per the reports, now turned out to be a blood-stained brownish rag. It seemed difficult to identify the bed sheet, as mentioned in the reports. Additionally, the marks “N” and “3” were found on it, but since these marks are not unique, there could be a high chance that they were not present when the body was found. The laundry worker’s statement regarding recognition of the marks was deemed to be unreliable. The fact that similar marks were found on the other clothes of the accused was also not enough to determine whether the marks were always present or not. The Court doubted the evidence due to some suspicious features. Both reports of the investigating officers only mentioned mark “3,” which was noticed by the officers.

On 27/7/1966, the investigating officer had taken this evidence back from the court for further investigation and had shown it to the laundry workers. On 31/7/1966, the witness PW-10, recognized the mark “N.” On 4/8/1966, after the accused was arrested and his clothes were seized, which had the marks “N” and “3,” the investigation officer returned this evidence back to the court. The Court remarked that it was impossible to exclude the chances that the mark “N” was marked during the period between 27/7/1966 and 4/8/1966.

The Court held that since the evidence had passed through various hands, there were high possibilities that the concerned identification marks were added later on. The Court decided that it cannot be established that the evidence, MO- 13, belonged to the accused.

Fifth and sixth Circumstances

On 1st August, when the accused’s room was searched for investigation, the police found the blue plastic bag. It was the initial interrogation of the accused that led them to this evidence. However, the Court could not find any such information in the police report, which suggested that the accused had made such a confession. Hence, this evidence would be inadmissible. Furthermore, a subsequent act by the accused pointing out the location of the knife would also not be admissible. As seen in Ramkishan Mithanlal Sharma v. State of Bombay (1955), pointing out evidence to a police officer is not admissible.

Since the accused had pleaded innocence before the Magistrate, the Court found it unlikely that he had helped the police gather evidence. The Court observed that if the prosecution’s case was true, to have changed his attitude suddenly, the accused must have been under some pressure or compulsion. It would violate Article 20(3) of the Constitution if the accused was compelled to testify against himself by pointing out the evidence. The Court referred to the case of State of Bombay v. Kathi Kalu (1961), wherein it was held that if the accused provides the information voluntarily, without any compulsion, only then can it be used as evidence in the court and the court said that this shall not amount to a violation of Article 20(3) of the Constitution.

It was contended that the allegations made by the accused regarding the police’s torture and forced confession could be false because, during his first questioning before the Magistrate, he mentioned not having any complaints regarding the police and, furthermore, refused another Magistrate’s offer to be sent to another doctor. The Court observed that this could be the result of any legal advice sought by him, which was probably given so in order to lay a foundation for his claim of innocence. However, it does not matter if the statement was correct or incorrect. The primary doubt revolves around why a person who initially made a statement to clear his name (irrespective of whether that was true or false) would go on to help in finding evidence against him.

The Court stated that the discovery of blood on the accused’s bag and also on the knife does not prove that the accused is guilty of murder. The blood on the bag would not be enough to prove guilt. As far as the knife is concerned, it seemed unlikely for it to have remained as shiny and smooth as it is, along with the blood stain still intact, if it was left in the rain at the crime scene. Hence, these were not considered to be strong evidence.

The Court did not find any of the circumstances of the prosecution satisfactory enough to convict the accused.

Critical analysis of Father Benedict vs. State of Kerala (1967)

In the present case, acquittal of the accused signifies the application of the important legal principle of “presumption of innocence.” The said principle states that every person is assumed to be innocent until proven guilty. This provides the accused with the right to a fair trial and representation. The prosecution must ensure that the guilt of the accused is proved beyond any reasonable doubt.

In this case, the burden of proving the accused’s guilt lay on the prosecution, which failed to do so. None of the presented witnesses or evidence could sufficiently indicate the guilt of the accused. There were high probabilities that the evidence presented was manipulated and the statements recorded seemed to be scripted dialogues. In such situations where there are no eyewitnesses to the murder, proving the guilt of the accused is absolutely difficult, but not impossible.

In the case of Sanatan Naskar and anr. v. State of West Bengal (2010), there were no eyewitnesses present at the time of the incident. However, the prosecution established the chain of evidence or proved the circumstantial evidence. They achieved this on the basis of reliable evidence, proving every circumstance and linking them to each other. In such cases, where there is an absence of eyewitnesses and the case depends on circumstantial evidence, the prosecution has to establish an absolute chain of events that directly proves the guilt of the accused without considering any other probabilities.

In the case of State of Up v. Ravindra Prakash Mittal (1992), the Court laid down the following with regards to the circumstantial evidences:

The circumstances that are to be assumed must be established by the court and the circumstances should be conclusive in nature.
Each fact or circumstance established should be indicating the guilt of the accused.

This makes it evident that in such situations, wherein there are no eyewitnesses present, the prosecution must ensure that each presented piece of evidence and statement indicates the guilt of the accused and leaves no room for any other assumption.

Conclusion

It is evident from this case analysis that to prove a fact and build a case around circumstantial evidence, the prosecution must have strong witnesses and evidence by their side. However, in cases wherein circumstantial evidence is considered, the decision equally depends on the judge’s perspective and interpretation of the statements. In such cases, the trials, especially the examination and cross-examination of witnesses, play a crucial role. This case also explains the application of the important Article 20(3) of the Constitution of India, which allows the accused to restrain themselves from making confessions, which may affect their own case. This ensures that the investigation is held fairly and that there is no prejudice towards the accused.

Frequently Asked Questions (FAQs)

What is the summary of the judgement in Father Benedict v. State of Kerala?

In this case, Father Benedict, who was accused of murdering a woman, was initially sentenced to a rigorous imprisonment of 5 years and a death sentence, appealed against the same. Since there was an absence of eye-witnesses and any confession, the case relied on circumstantial evidence. The High Court of Kerala stated that most of the evidence presented was hearsay, which weakened the prosecution’s case. On the basis of each evidence and examination, the Court acquitted the accused.

The following were some of Court’s primary observations behind the same-

All statements made by a dying person do not become relevant under Section 32 (1) of the Evidence Act. The statement stated must have a proximate relation to the actual occurring events.
To prove the relevancy of a fact under Section 7, Section 8 and Section 11 of the Evidence Act, the evidence must be direct and not hearsay.
In such cases, it is crucial to conduct a test identification parade, to completely accept a witness’s statement and rely on it.
Any self-incriminatory information made by the accused can only be admitted when the statement is made voluntarily and without any pressure.

What is hearsay evidence?

Hearsay evidence, in simpler terms, is when the witness primarily has not experienced the event by his/her own senses and instead is aware of a fact because they have heard about the same from elsewhere. Such persons are not considered as witnesses and such statements are not admissible in court.

There are only two exceptions when hearsay evidences are accepted in the courts:

When It forms a transaction of the chain of events .i.e., res gestae ,
When it is a dying declaration.

How is the doctor’s report included as evidence?

Under Section 45 of the Indian Evidence Act, 1872, when the court needs to form an opinion regarding any subject which needs any specialised knowledge about the same, it shall seek expert opinion. The subject matter can be relating to foreign law, science, art or handwriting or fingerprint, etc. Hence, the doctor’s report is considered as an expert opinion, however, it is the court’s decision to make the decision in accordance with the report or against it.

What is the evidentiary value of circumstantial evidence?

Circumstantial evidence in India is an important aspect in criminal trials. When a strong chain of events can be formed and proven, the court shall consider the circumstantial evidence. However, in cases where the eye-witness statement contradicts the circumstantial evidence, direct evidence shall be considered over circumstantial evidence.

References

https://blog.ipleaders.in/all-about-circumstantial-evidence/#What_do_you_mean_by_Circumstantial_Evidence

Waman Rao vs. Union of India (1981)

By

Diva Rai

-

July 3, 2024

0

interim order — Image source: https://bit.ly/2ITwk8l

This article is written by Kritika Garg and Naincy Mishra. This is an exhaustive article that explains the landmark judgement pronounced by the Supreme Court of India in the case of Waman Rao v. Union of India. This is an exhaustive article with respect to the evolution of the basic structure doctrine in India.

This article has been published by Shashwat Kaushik.

Table of Contents

Introduction

The Constitution of India was adopted by the Constituent Assembly on 26th November, 1949, and came into force on 26th January, 1950. It is known as the supreme law of the nation. While originally it had 395 Articles arranged under 22 Parts and eight Schedules, currently the constitution has 448 Articles under 25 Parts and 12 Schedules.

Like any other written constitution in the world, the Indian Constitution also provides for an amending power for the Parliament so that it can adjust itself according to the changing needs and circumstances of society and the nation. This amending power has been provided under Article 368 of the Indian Constitution, which includes amendment by way of addition, variation, or repealing any provision of the constitution as per the established procedure for the same. Since its adoption in 1950, the Indian Constitution has undergone several amendments every now and then. However, the power of Parliament to amend the constitution is not unlimited, and there are judicial safeguards against the same. One of the most important safeguards is that the Parliament cannot amend the constitutional provisions that form part of the ‘basic structure’ of the constitution. In this regard, various judicial pronouncements of the Supreme Court of India highlight what constitutes the basic structure and why they must not be amended by the Parliament. In the case of Waman Rao v. Union of India (1981), while adhering to the doctrine of the basic structure, the Supreme Court laid down that the same would apply to the constitutional amendments that were enacted after 24 April, 1973 (i.e., the date of the pronouncement of the famous Kesavananda Bharati case).

Indian Constitution and the power to amend

Procedure

Any law can be most effectively worked out if it can be modified so as to adapt to the changing needs and circumstances of societal needs. Similar is the case with the constitutions all over the world, which act as the most important basis to formulate law in the countries. While some constitutions are rigid, which lay down principles of permanent value and are amended only after thorough deliberations, others are flexible, in which amendments can be made rather easily. For example, the British Constitution can be amended by any ordinary Act of Parliament.

In India, different types of provisions of the constitution are dealt differently with respect to their amendability. Three classes of amendments can be found in the Indian Constitution:

The constitutional provisions, which are comparatively less significant, can be amended by a simple legislative process, as is adopted while passing any other ordinary legislation in Parliament. For these provisions, the Parliament has been empowered to make laws making such provisions as are different from what these Articles provide for. Thus, they are not subject to the special procedure laid down under Article 368. For example:
1. Admitting a new state under Article 2 of the Indian Constitution can be affected by consequent amendments in Schedules I and IV defining territory and allocating seats in the Rajya Sabha amongst various states, respectively.
2. Parliament, under Article 11 of the Indian Constitution, has the power to make any provision for the acquisition and termination of citizenship in spite of Articles 5 to 10.
Some vital provisions that can be amended only by following the procedure (rule of special majority) as prescribed under Article 368 of the constitution are:
1. Introduce a bill for a constitutional amendment in either House of Parliament.
2. The bill must be passed by each house by a majority of its total membership and a majority of at least two-thirds majority of the members of that house present and voting.
3. The President must give assent to the bill.
Some constitutional provisions that are related to the federal character, often regarded as ‘entrenched provisions’, can be amended by the same process as laid down under Article 368, with little change in the process that before being presented to the President for his assent, the bill has to be ratified also by the legislatures of at least one-half of the States by resolutions. This has been provided under clause (2) of Article 368 itself. For example:

Manner of election of the President of India under Articles 54 and 55.
The extent of executive power of the Union and States under Articles 73 and 162, respectively.

Article 368 vis-a-vis Article 13

Article 368(3) states that the provisions of Article 13 shall not be applicable to any amendment that is made under Article 368. Correspondingly, a clause was added to Article 13 as well, according to which the provisions of Article 13 shall not be applicable to any amendment of the constitution made under Article 368. An elaborate information with respect to the effect of these provisions has been given later in this article.

Doctrine of basic structure

The doctrine of basic structure can be understood as a legal principle recognised by the Supreme Court of India that identifies the core principles and values of the constitution that cannot be modified by the Parliament by way of its amending power under Article 368 of the constitution. This doctrine was established in the landmark case of Kesavananda Bharati v. State of Kerala (1973) on 24 April, 1973. In this 13-judge bench decision, the Hon’ble Supreme Court concluded that the Parliament does not possess the authority to alter the essential structure or framework of the constitution. The doctrine of basic structure serves as a crucial safeguard against arbitrary amendments and helps to preserve the essence of the constitution.

History and evolution

Right after the Indian Constitution was put in place, questions have been raised about the scope of the procedure for constitutional amendment contained in Article 368. Since most of those amendments had a direct bearing on the fundamental rights of the citizens, one of the most basic questions that was raised was whether the fundamental rights could be diluted or taken away through a constitutional amendment. Thus, the constitutional validity of many of those amendments was challenged before the Supreme Court a number of times.

Shankari Prasad Singh v. UOI (1951)

This was the first case on the question of the modification or amendability of the Indian Constitution. In this case, the validity of the First Constitutional Amendment (1951) (First Amendment) was challenged on the ground that it curtailed the right to property, which is guaranteed by Article 31 of the Indian Constitution. It was argued that Article 13, prohibiting the enactment of ‘any law that infringes or abrogates the fundamental rights’, also includes a law that amends the constitution itself. Thus, such a law could be scrutinised with respect to the fundamental rights that it tends to infringe.

The Hon’ble Supreme Court in this case upheld the validity of the First Amendment and limited the scope of Article 13, stating that the word ‘law’ therein does not include within its ambit a law amending the constitution that is passed under Article 368. It was further added that the word ‘law’ under Article 13 must be taken to mean ‘rules and regulations made in the exercise of ordinary legislative power’ and not amendments to the constitution, as the terms of Article 368 are very general in nature and confer the Parliament with the power to amend the constitution without any exception.

Basically, the court went with the view that fundamental rights can be violated, and that is how they are also within the reach of the constitutional amendments.

Sajjan Singh v. State of Rajasthan (1965)

After Shankari Prasad, the question regarding the amendability of the fundamental rights enshrined under the constitution remained dormant for the next 13 years until it was again raised in 1964 in the case of Sajjan Singh v. State of Rajasthan (1965). In this case, the constitutional validity of the 17th Constitutional Amendment (1964) (17th Amendment) was challenged before the court on the ground that it adversely affected the right to property. It is important to note that by the 17th Amendment, a number of statutes affecting the right to property were placed in the Ninth Schedule and thus were immune from judicial review.

The Supreme Court in this case reiterated the conclusion of the Shankari Prasad case and ruled that the power of constitutional amendment conferred under Article 368 could be exercised over each and every provision of the constitution. The court stated that the ‘pith and substance’ of the present amendment was only to amend the fundamental right so as to help the state legislatures to give effect to the policy of agrarian reforms.

IC Golak Nath v. State of Punjab (1967)

In this case, while challenging the validity of the 17th Amendment again in a more vigorous manner, the court dealt with the question of whether a fundamental right could be abridged or taken away by the Parliament while exercising power under Article 368. This was an eleven-judge bench decision divided in a 6-5 ratio wherein the majority, while overruling the earlier decisions in Shankari Prasad as well as Sajjan Singh, held that the fundamental rights were non-amendable through the constitutional amending process under Article 368 as the fundamental rights occupy a ‘transcendental’ position in the constitution and no authority (even the Parliament while exercising its amending power under Article 368 of the Constitution) is competent to amend the fundamental rights. Accordingly, an amendment to the constitution would be considered a ‘law’ for the purposes of Article 13 of the Constitution.

The majority expressed its concern over various amendments to the fundamental rights that had taken place since 1950 and stated that if the courts were to agree with Parliament having the power to abridge or take away the fundamental rights as up till then, a time might come when these rights would be completely eroded and India would thus gradually pass under a totalitarian regime.

Amendment of Article 368: 24th Amendment (1971)

In an attempt to undo the effect of the Hon’ble Supreme Court’s ruling in Golak Nath, the 24th Constitutional Amendment (1971) (24th Amendment) was introduced in Parliament to make certain modifications in Article 13 as well as in Article 368 to assert the Parliament’s power to amend the fundamental rights that were denied to it as a result of the Golak Nath’s ruling. Accordingly, the following changes were made:

A clause was added to Article 13, which declared that Article 13 shall not be applicable to any of the constitutional amendments that are made under Article 368 of the Constitution.
A clause was also added to Article 368, declaring that Article 13 shall not be applicable to any constitutional amendment that is made under Article 368.
The marginal note to Article 368 was changed from “Procedure for Amendment of Constitution” to “Power of Parliament to amend the Constitution and Procedure therefore”.
A notwithstanding clause was added to Article 368 with respect to Parliament’s constituent power to amend by way of addition, variation, or repeal any provision of the constitution as per the procedure laid down therein.
A differentiation was sought to be made between an ‘ordinary law’ wherein the President does enjoy the power to grant or refuse his assent or refer it back for reconsideration by Parliament and ‘a law to amend the constitution’ wherein it is obligatory on the President to give his assent.

25th Constitutional Amendment (1971)

It is worth noting that along with the 24th Amendment, the Parliament also enacted the 25th Constitutional Amendment (25th Amendment) to bring in changes in certain constitutional provisions:

In Article 31(2), the word ‘compensation’ was substituted by the word ‘amount’. It was done so as to relieve the government of the obligation to provide adequate compensation for any property acquired by it.
Article 19(1)(f) was delinked from Article 31(2).
A new provision, namely Article 31C, was added to the constitution, which stated that:

Articles 14, 19, and 31 will not be applicable to a law enacted to effectuate the policy underlying clauses (b) and (c) of Article 39.
A declaration in the law that it has been enacted to effectuate the policy under Articles 39(b) and (c) will shield such a law from any such challenge in court.

These changes actually had far-reaching effects, as till now, the Directive Principles of State Policies (DPSPs) were treated as subservient to the fundamental rights, but after this amendment, the DPSP contained in Articles 39(b) and (c) were sought to be given precedence over the fundamental rights enshrined in Articles 14, 19, and 31.

Kesavananda Bharati v. State of Kerala (1973)

This case gave rise to one of the most landmark decisions in the history of constitutional jurisprudence in India. It is one of the most significant judgments more so because it was heard by the largest judicial bench in India, consisting of 13 Supreme Court judges. In this case, the constitutionality of both the above-mentioned constitutional amendments – 24th and 25th – was called into question via a writ petition by Swami Kesavananda Bharati, a mutt chief of Kerala.

Some important opinions delivered by the judges in this case are as follows:

The power to amend the constitution is to be found in Article 368 itself. In this regard, the ruling of the court in Golak Nath was thereby overruled.
There is a distinction between an ordinary law and a constitutional law. The constitution makers didn’t use the expression ‘law’ in Article 13 so as to include ‘constitutional law’ as that would mean conferring power to Article 368 to abridge the fundamental right or any other part of the constitution.
The amending power of Parliament can’t be exercised in such a manner as to destroy the fundamental or basic features of the Constitution. Thus, any constitutional amendment that is in violation of the basic structure of the constitution is ultra vires. Some fundamental features of the constitution that are non-amendable are:

Constitutional supremacy
Republican and democratic forms of government
The federal character of the constitution
The secular nature of the constitution
Separation of power between the organs of government, namely, the legislature, executive, and judiciary

4. With regards to the amendment of a fundamental right, it is for the court to decide on a case to case basis as to which fundamental right is to be treated as a ‘basic’ feature.

In this case, while upholding the validity of both amendments – the 24th as well as 25th – the court said that the Parliament could amend a fundamental right; however, it is subjected to the overall restriction of altering the basic structure of the constitution.

With respect to Article 31C, while the first part of the provision was held valid on the basis that it identified a limited class of legislation and exempted it from the operation of Articles 14, 19, and 31; the second part of the provision was held invalid, stating that though a law enacted to implement clauses (b) and (c) of Article 39 may not be challenged under the said fundamental rights, still the courts shall have the power to go into the question of whether the impugned law does achieve the objectives inherent in Articles 39(b) and (c) or not.

Indira Nehru Gandhi v. Raj Narain (1975)

In this case, the validity of Clause 4 of the 39th Constitutional Amendment (1975) (39th Amendment) was challenged in court on the ground that it destroyed the basic feature of the constitution insofar as it constituted a gross interference with the judicial process. Importantly, the Amendment sought to:

Withdraw the election of the Prime Minister and a few other officials from the scope of the ordinary judicial process;
Invalidate the decision of the High Court that declared the election of Indira Gandhi to the Lok Sabha as void;
Exclude the jurisdiction of the Supreme Court to hear any appeal.

Accordingly, Clause 4 was declared unconstitutional as it violated three ‘essential features’ of the constitution, namely:

Democratic feature: As Article 329(b) envisages resolving an election dispute by judicial process through a petition that is presented to appropriate authority, a constitutional amendment can’t dispense with such a requirement.
Principle of separation of power: As a purely juridical function, it was sought to be exercised by the legislature.
Equality of status and opportunity: As there was no rational justification for creating a privileged regime for the election of the Prime Minister of India.

Amendment of Article 368: 42nd Amendment (1976)

In order to ensure that the courts don’t get the power to pronounce any constitutional amendment invalid on any ground whatsoever, Article 368 was again amended by the 42nd Constitutional Amendment (1976) (42nd Amendment) to include two new clauses to the provision.

As per Article 368(4), any constitutional amendment (including that of fundamental rights) made under Article 368 shall not be called in question in any court on any ground, and it is immaterial whether the amendment was made before or after the commencement of Section 55 of the 42nd Constitutional Amendment Act 1976.
Moreover, as per Article 368(5), it was clarified that there shall be no limitation on the constituent power of the Parliament to amend the provisions of the constitution by way of addition, variation, or repealing under Article 368.

Minerva Mills Limited v. UOI (1980)

The scope and extent of the basic structure doctrine were again considered by the Supreme Court in the case of Minerva Mills v. UOI (1980). In this case, a petition was filed challenging the taking over of the management of the mill under the Sick Textile Undertaking (Nationalisation) Act, 1974, as well as an order made under Section 18A of the Industrial (Development and Regulation) Act, 1951. The petitioner challenged Section 55 of the 42nd Amendment Act 1976, which inserted clauses (4) and (5) in Article 368.

The Supreme Court in this case held that Section 55 of the 42nd Amendment Act 1976 was beyond the amendment power of the Parliament. It was void as it attempted to remove the limitations upon the Parliament’s power to amend the constitution and confer such an amending power so as to damage or destroy its basic structure. It was famously stated by the court that “the donee of a limited power can’t, by the exercise of that power, convert the limited power into an unlimited one”.

With respect to the new amendment to Article 31C, which vastly expanded its otherwise valid scope, which was also upheld under the Kesavananda Bharati, the Supreme Court said that the new extension was invalid insofar as it totally excluded challenge to any law in court on the ground that it was inconsistent with any rights given under Article 14 or 19, if it was to give effect to any DPSP. The court opined that the fundamental rights as well as the DPSPs together constitute the core of the constitution of India and combine to form its conscience; thus, the balance between the two should not be destroyed, as it will amount to destroying the very basic structure of the constitution.

Basic structure of the Indian Constitution

From the several judicial pronouncements, the basic features or elements of the basic structure of the Indian Constitution can be laid down as follows:

Supremacy of the Constitution
Sovereign, democratic, and republican nature of the constitution
Separation of power between different organs of the government, i.e., the legislature, the executive, and the judiciary
Federal character of the constitution
Secular nature of the constitution
Unity and integrity of the country
Rule of law
Judicial review
Independence of the judiciary
Parliamentary system
Welfare state (socio-economic justice)
Effective access to justice
Freedom as well as the dignity of the individual
Harmony and balance between fundamental rights and the directive principles
Principles underlying the fundamental rights
Principles of equality
Powers of the Supreme Court under Articles 32 (writ jurisdiction), 136 (jurisdiction with respect to special leave petition), 141 (binding nature of law declared by the Supreme Court on all other courts), and 142 (enforcement of decrees and orders of the Supreme Court)
Powers of the High Court under Articles 226 (writ jurisdiction) and 227 (power of superintendence over all courts)
Free and fair elections
Limited power of the Parliament to amend the Constitution

Waman Rao v. Union of India (1981)

The present case is a 1981 judgement of the Supreme Court wherein the Hon’ble Court examined the validity of Article 31A, Article 31B, and the unamended Article 31C of the Constitution of India with respect to the doctrine of basic structure introduced under the Kesavananda Bharati case. The Court made an important observation regarding the applicability of the doctrine and held that the same should not have a retrospective effect, which means all the decisions made prior to the introduction of the doctrine shall remain valid and thus cannot be called in question. The direct effect of the decision implied that all the Acts and Regulations that were included under the Ninth Schedule of the Constitution prior to the Kesavananda decision would remain valid, while further amendments to the schedule could be challenged on the grounds of violation of the doctrine of the basic structure.

Facts of the case

The Maharashtra Agricultural Lands Act, 1962 (Act), which imposed a ceiling on agricultural holdings in Maharashtra, was amended, and the ceiling was revised time and again. The validity of the Act was being called into question before the Bombay High Court on the grounds that it violated fundamental rights. Further, since the Act was placed under the Ninth Schedule, the constitutional validity of Articles 31A, 31B, and the unamended Article 31C (as it existed before the 42nd Amendment) was also challenged on the ground that they violated the Doctrine of Basic Structure of the Constitution. However, the High Court rejected the challenges. Another appeal was before the Supreme Court against the decision of the High Court in the case of Dattatraya Govind v. State of Maharashtra (1977). However, the Supreme Court also dismissed the appeal. Importantly, the judgement of the Supreme Court was delivered during the time when the proclamation of emergency was in effect. Therefore, after the revocation of the emergency, a new petition was filed in the Supreme Court seeking a review of the judgement passed in the Dattatraya case under the present case of Waman Rao v. Union of India.

Issues raised

In the present case, the following issues were raised:

Whether, by enacting Article 31A(1)(a) via the First Constitutional Amendment, the Parliament has transgressed its power of amending the constitution?
Whether Article 31A(1) provides protection to the laws beyond getting challenged for violations of fundamental rights, including Articles 14, 19, and 31?
Whether Article 31B (providing for the Ninth Schedule) can be challenged for violation of fundamental rights enshrined under Part III of the constitution?
Whether Article 31C (aiming to achieve the goals laid down under Article 39) can be challenged on the grounds of being inconsistent with the fundamental rights of the citizens?
Whether the 40th Constitutional Amendment (40th Amendment) passed during the proclamation of emergency by extending the time period of the Parliament was valid or not?
Whether the “Doctrine of Stare Decisis” can be applied for upholding the constitutional validity of any Article of the Constitution or is it applicable to upholding the laws protected under those Articles of the Constitution?

Main contention of the petitioner

The main contention made in this case was with regard to the constitutional validity of Article 31A, Article 31B, and unamended Article 31C. The petitioners contended that the protective nature of these Articles makes it impossible to challenge certain laws that are violative of certain fundamental rights guaranteed under Part III of the Constitution of India. Further, the petitioners contended that the provisions of these Articles are in violation of the basic structure of the constitution as propounded in the case of Keshavnanda Bharati v. State of Kerala (1973). Furthermore, the petitioners challenged the 40th Amendment passed during the emergency on the ground that it was passed by extending the time period of the Parliament.

Ruling of the Court

Validity of Article 31A of the Indian Constitution

Article 31A of the Constitution states that, notwithstanding anything contained in Article 13, no law that provides for the acquisition of any estate or right by the state or the modification or extinguishment of any right shall be termed as void on the ground that it is in violation of the fundamental rights conferred under Articles 14 and 19 of the Constitution.

While addressing the first and second issues regarding the constitutional validity of Article 31A of the Constitution, the Supreme Court observed, ‘to consider that the laws which take away or abridge the fundamental rights are laws in violation of the doctrine of the basic structure of the constitution is a misconception’. The court drew its attention towards the primary reason behind the introduction of Article 31A under the First Amendment, which was to make the Zamindari Abolition Laws more effective and to overcome the difficulties that may arise in the future. Further, the court emphasised the need for abridging the social and economic disparities in the agricultural sector, which was done by bringing the First Amendment. The court said that in the process of removing the existing inequalities, new marginal and incidental inequalities may arise. The inequalities that arose cannot infringe on the basic structure of the constitution. Furthermore, the court held that it is not possible for any government to overcome the inequalities without causing any hardship or injustice to any class of people who are entitled to equal treatment under the law. Therefore, Article 31A cannot be considered to be violative of the basic structure of the constitution.

It is important to observe that the validity of the first constitutional amendment was being questioned on six grounds in the case of Kesavananda Bharati v. The State of Kerala as well. Even in that case, the amendment was upheld. Before the Kesavananda case, the amendment was called into question in three cases, namely, Shankari Prasad v. Union of India, Sajjan Singh v. State of Rajasthan, and I.C. Golaknath v. State of Punjab. It is worth noting that in all these cases, the court upheld the constitutional amendment validating the inclusion of Article 31A and Article 31B.

The validity of Article 31B of the Indian Constitution

Article 31B read with the Ninth Schedule states that all the Acts falling within the ambit of the Ninth Schedule cannot be termed void for being inconsistent or in violation of the fundamental rights enshrined under Part III of the constitution. The law states that as and when any Act or Regulation is placed under the Ninth Schedule, it would automatically receive protection under Article 31B from being termed void for abridging the fundamental rights of the citizens. Therefore, the petitioners contended that Article 31B is inconsistent with fundamental rights.

The court, while deciding upon the question of the constitutional validity of Article 31B, relied upon the judgement of Kesavananda Bharati v. State of Kerala and observed that before the judgement of the Kesavananda Bharati case, many Acts were placed under the Ninth Schedule on the ground that Parliament has wide powers to amend the constitution. It was only in the Kesavananda Bharati case that the court held that the Parliament cannot exercise its power to amend the constitution so as to destroy the basic structure of the constitution. Before the judgement, all the changes in the titles and properties must have occurred on the belief that the laws under the Ninth Schedule would not be open to challenge on the ground that they violate Articles 14, 19, and 31. Therefore, upsetting the settled claims and titles would be unjustified and tantamount to introducing chaos in the legal affairs of a fairly ordered society.

Thus, the court held that all the laws included in the Ninth Schedule prior to the Kesavananda case would receive the protection of Article 31B. However, the Acts and Regulations inserted in the Ninth Schedule after the Kesavananda judgement would not be protected under Article 31B and would be open to scrutiny on the grounds of being in violation of the basic structure of the constitution.

The validity of Article 31C of the Indian Constitution

Article 31C, as discussed above, was introduced by the 25th Amendment. It provided protection to the laws specified under clauses (b) and (c) of Article 39, giving effect to the directive principles of the state. Such laws cannot be termed as void for abridging the fundamental rights conferred under Part III of the Constitution, namely Articles 14, 19, and 31.

The contention of the petitioner regarding the constitutional validity of Article 31C was set aside for the reason that the opening clause of the Article was being upheld by the decision of the court in the judgement of Keshavnanda Bharati v. State of Kerala. The decision was based on the view that the directive principles of getting protection from Article 31C are essential for the welfare of the country and its citizens. The court further held that the said Article does not infringe the basic structure of the constitution; rather, it fortifies the same by giving effect to the directive principles contained in Clauses (b) and (c) of Article 39. Therefore, Article 31C was held valid.

Validity of the 40th Amendment of the Indian Constitution

Apart from the challenges against Articles 31A, 31B, and 31C, the petitioners challenged the constitutional validity of the emergency proclaimed in 1971 and 1975 and the 40th Amendment of 1976, which placed the Amending Acts 21 of 1975, 41 of 1975, and 2 of 1976 under the Ninth Schedule. The basis of the challenge was the extension of the normal term of the Lok Sabha, which was due to expire on 18th March 1976. However, it was extended twice by the House of People Amendment Act, 1976, for two years. The 40th Amendment was passed during the extended period on 2nd April, 1976.

The petitioners contended that the court has the jurisdiction to question whether the power of the President to proclaim an emergency under Article 352 has been properly exercised or not and whether there existed such circumstances that needed the emergency to continue or not. The petitioner further contended that the emergency was proclaimed with a mala fide intention, as there was no justification for proclaiming the emergency of 1975.

The court held that the evidence that was brought to the attention of the court was neither cogent nor sufficient. The emergency is safeguarded under Article 352(3) since it was proclaimed during a time when there was a threat to the national security and sovereignty of the country. Therefore, the steps taken were essential and, hence, lawful.

Thus, it was ruled that the 40th Amendment cannot be struck down on the mere ground that it was passed during the emergency by extending the time period of the Lok Sabha. Hence, the amendment is valid and lawful.

The Doctrine of Stare Decisis

Deciding upon the question of whether the Doctrine of Stare Decisis could be applied to the Articles of the Constitution or if it was applicable only to the laws protected by the Articles, the court answered in favour of the latter. However, the court did not give any reasons for the same.

Further, the question of invoking the Doctrine of Stare decisis to uphold Article 31A was set aside because Article 31A was upheld on its own merits. In the previous case of Ambika Prasad Mishra v. State of U.P. (1980), the court set aside the question of whether Article 31A can be upheld by enforcing the doctrine of stare decisis to be decided in other cases. Further, the court observed that in all the cases that have been relied upon, including the Keshavnanda Bharati case, the Sajjan Singh case, the Golaknath case, and the Shankari Prasad case, none raised or decided the validity of Article 31A. The Shankari Prasad case focused on the question of whether the constitutional amendments fall within the purview of Article 13(2) or not. The decision was given in negation. Sajjan Singh’s case placed a demand for reconsideration of the Shankari Prasad judgement. The Golaknath case did not bring any constitutional amendment into question; rather, it focused on the question of where this amending power was located. Lastly, the Kesavananda case also evidently did not raise the question of the validity of Article 31A.

The court was of the view that any judicial decision that is given after hearing an argument can be considered as a precedent, and furthermore, it becomes a stare decisis. But since the issue was not even raised in the case, it cannot be upheld by invoking the doctrine of stare decisis. Furthermore, the court cited the principle that rules like Stare Decisis cannot be invoked to uphold the constitutional validity of Articles like 31A, 31B, and 31C, which not only protect past laws but future laws as well. It can be applied only to the laws protected by the Articles and not the Articles themselves.

However, Justice Bhagwati gave a dissenting opinion and believed that the majority has upheld Article 31A by invoking the doctrine of stare decisis and not on its own merits. He believed that Article 31A was upheld in the Keshavnanda Bharati case, which binds the present decision on the grounds of stare decisis.

Conclusion

The decision passed by the Supreme Court in this case of Waman Rao v. Union of India is one of the landmark judgements being relied upon till date. The decision demarcated a line of difference between the Acts placed under the Ninth Schedule prior to the Kesavananda judgement and post the judgement. Also known as the ‘Doctrine of Prospective Overruling’, the court decided that all the laws placed under the Ninth Schedule prior to the Kesavananda judgement cannot be called into question for violating fundamental rights; however, the laws post the judgement can be raised before a court of law. Further, this case decided upon the questions of law, which were of utmost importance. The court upheld the validity of Article 31A and Article 31B which were introduced by the First Amendment, and unamended Article 31C, introduced under the 25th Amendment. However, the court, while dealing with the issue of the doctrine of stare decisis, did not mention any reason for its decision, which left it quite uncertain. Apart from that, this judgement is one of the most effective judgments pronounced by the Supreme Court.

References

What you need to know about cyberbullying and its legal remedies

By

Vanshika Kapoor

-

July 2, 2024

0

This article has been written by Vibha Swami Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

In today’s world, as information technology continues to play an increasing role in our daily lives, we are often placing our trust in strangers who may pose a threat to us. The impact of this level of trust is that it makes our lives very exposed, which leads the anonymous person to commit crimes on online platforms. We’re here to learn about cyberbullying specifically.

Let’s define what cybercrime is and what its components and types are. Information technology has become an essential part of our daily lives today. Many of our daily tasks depend on technology. While information technology has positive aspects, there are also negative aspects. Some people use technology to make profits, while others misuse it. Cybercrime has become a significant issue in many countries as a result of the misuse of information technology. Cybercrime is a crime committed using digital means. Cybercrime can take many forms, including through mobile devices, computers, or other digital means. Cybercrime not only causes financial harm but also mental harm to the victim. Cyberbullying, fraud, child pornography, and digital piracy are examples of cybercrime. We’re here to learn about cyberbullying specifically.

What is cyberbullying

The term cyberbullying was coined for the first time by Bill Belsey, who was a Canadian educator. Cyberbullying, or online bullying, is the use of technology to harass or bully someone. Cyberbullying is a serious form of online harassment that can cause long-lasting emotional as well as psychological damage. According to the Information and Technology Act 2000, cyberbullying is one of the cybercrimes, which means using both information and communication technology beyond the limit to harm a person’s reputation, state of mind, or humiliate a person. It is an act in which the person being bullied suffers an adverse effect. The National Crime Prevention Council’s definition is “the process of using the Internet, cell phones, or other devices to send or post text or images intended to hurt or embarrass another person.” Cyberbullying has become common among teens because of its hideous nature. In traditional bullying, a person can escape from it for some time. For example, if a student is bullied at school, they can talk to a teacher or a trusted adult at home for help and support. But in the case of cyberbullying, it will haunt the victim everywhere. Sometimes, due to a lack of knowledge or information, teens get cyberbullied easily. There are many cyberbullying cases reported across the country. A medical student in Kerala committed suicide because of a conversation on WhatsApp twisted by her friends.

The causes of cyberbullying are unknown, but it is widely accepted that the anonymity of social media gives individuals the courage to commit this type of crime. Let us now learn more about the types of cyberbullying.

Types of cyberbullying

There are mainly 10 kinds of cyberbullying

Exclusion

In cases of exclusion, individuals may be removed from social media groups and subjected to trolling. The bullies try to spread fake things about the individual.

Harassmnent

In this kind of cyberbullying, cyberbullies use indecent behaviour or messages on technical grounds that can make the individual feel uneasy, afraid, or depressed.

spreading rumours, ridiculing, and/or demeaning others
harassing others because of their race, religion, sexual orientation, disability, or transgender identity
seeking revenge or deliberately embarrassing a person online;
engaging in unwanted behaviour of a sexual nature via text, email, or other electronic and/or social media, including using intimate images or recordings of another person.

Outing/doxing

In cybercrime, outing is also a kind of cyberbullying, which is also known as doxing. Doxing includes a crime in which the identity or any private information or personal messages of any individual are spread without his or her consent.

Trickery

This type of bullying is similar to the outing, but the bully first gains the victim’s trust before revealing their secret with malicious intent.

Cyberstalking

In cyberbullying, the bully first stalks his or her target by checking his or her online activities for a long period; later on, the bully tries to harass the individual.

Frapping

In this, the bullies use the individual’s account, and the bullies defame the individual by posting ill content against him or her.

Masquerading/impersonation

In this case, the cyberbullies don’t access the target’s account; rather, they make an account in the individual’s name and perform malicious things using the individual’s name.

Dissing

The bully posts rumors or false information to defame the individual. The bully can directly message the individual’s friends or post anything on social media that defames the person

Trolling

In trolling, many people comment on a post, which can make the person feel insulted and mentally depressed. People may judge or make fun of the person’s actions, which can be terrifying.

Flaming

Flaming, also known as roasting, is a form of cyberbullying in which an individual gets bullied on social media or in groups with inappropriate language.

Indian law remedies against cyberbullying

According to the Information And Technology Act of 2000, and the Indian Penal Code of 1860, some sections provide punishment for Cyber Crime. In actuality, there are no particular laws that deal with cyberbullying but provide punishment for cyberbullying on different provisions.

Under the Information and Technology Act of 2000, the following sections provide legal remedies against cyberbullying.

Section 66A

This section of the act provides the punishment for the harassment and dissing. The punishment for causing harassment and dissing the bully shall be punishable with imprisonment for a term that may extend to three years and with a fine.

Section 66E

This section pertains to the punishment for trickery and doxing. Offenders may face imprisonment for up to three years, a fine not exceeding two lakh rupees or both.

Section 67

This section under the Information and Technology Act of 2000 provides that if anyone publishes or transmits any inappropriate material through electronic means, they shall be punished on first conviction with imprisonment of either description for a term that may extend to three years and with a fine that may extend to five lakh rupees, and in the event of a second or subsequent conviction with imprisonment of either description for a term that may extend to five years and also with a fine that may extend to ten lakh rupees.

The Indian Penal Code, of 1860 also provides some remedies in cases of cyberbullying.

Section 500

The act provides punishment for defamation, which can also be done on social media platforms. The act gives punishment, which shall be simple imprisonment for a term that may extend to two years, or a fine, or both.

Section 507

Intermediation through any electronic means with anonymous communication shall be punished with imprisonment of either description for a term that may extend to two years.

Case laws of cyberbullying

In India, there have been numerous landmark cases that have highlighted the severity and impact of cyberbullying. These cases have brought attention to the issue and have contributed to shaping laws and policies aimed at combating cyberbullying. Some of the most notable landmark cases include:

Ritu Kohli’s case

It was the first cyberstalking case filed in India. Ritu Kohli was cyberstalked by Manish Khaturia. He used her name and personal information on a site, from which she got obnoxious messages and calls. People were talking dirty with her. From all this, she reported an FIR under Section 509 of the IPC, 1860. However, this section was not applied in Ritu’s situation, which caused alarm to the Indian government, and they amended the laws.

State of Bangladesh vs. Animesh Boxi

In this case, the software engineer Animesh had a relationship of 3 years with the victim. He demanded intimate photos from her. After some time, he hacked her phone and stalked her. He blackmailed her with the help of the photos. After a few days, the victim’s brother found the pictures and videos of the victim on the porn site. Animesh was charged with many acts under the Indian Penal Code of 1860. He was also punished under Sections 63, 66, and 67A of the Information Technology Act of 2000, with an imprisonment of 5 years and a fine of Rs. 9000.

Ritika Sharma’s case

Ritika Sharma (name changed) was cyberstalked by someone who used her name and telephone number on Facebook. She shared her number with that person. Later on, the Delhi Police started campaigns and awareness programs in schools regarding cyberbullying.

Shreya Singhal vs. Union of India

In the landmark case of Shreya Singhal vs. Union of India, the Supreme Court of India delivered a groundbreaking judgement in 2015 challenging the constitutionality of Section 66A of the Information Technology Act, 2000. This provision criminalised the sending of offensive messages through electronic means, raising concerns about its potential to stifle freedom of speech and expression online.

The Court’s verdict marked a significant milestone in protecting online speech and expression in India. By declaring Section 66A unconstitutional, the Court recognised that the provision violated the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. This decision set a precedent for safeguarding online speech from arbitrary restrictions and affirmed the importance of open and democratic discourse in the digital age.

The case was brought before the Court by Shreya Singhal, a law student, and other petitioners following several arrests and prosecutions under Section 66A. The petitioners argued that the provision was vague and overly broad, allowing for arbitrary interpretations and misuse by authorities. They contended that it had a chilling effect on online speech, discouraging individuals from expressing their views freely for fear of legal consequences.

The Court agreed with the petitioners’ arguments, finding that Section 66A did not meet the constitutional standards of reasonableness and proportionality. It held that the provision was too wide in its scope and could be used to target legitimate criticism or dissent, thereby undermining the essence of free speech in a democratic society. The Court also held that the mere potential to cause offence or annoyance does not justify restricting speech, as it is an inherent part of a robust public discourse.

The verdict in Shreya Singhal vs. Union of India resonated beyond India’s borders, setting an example for other countries grappling with the challenges of regulating online speech. It underlined the importance of striking a delicate balance between protecting individual rights and maintaining public order in the digital realm.

The decision also prompted the Indian government to revise Section 66A, introducing more specific and narrowly defined provisions to address offensive online content. This revised framework aimed to ensure that restrictions on online speech were proportionate and necessary, safeguarding both freedom of expression and the rights of others.

Prajwala vs. Facebook and Ors.

In the landmark case of Prajwala vs. Facebook and Ors., decided by the Delhi High Court in 2016, Prajwala, a leading non-governmental organisation dedicated to combating human trafficking, brought a lawsuit against Facebook and other significant social media platforms. The lawsuit centred on the failure of these platforms to take adequate measures to prevent the spread of child sexual abuse material (CSAM) on their platforms.

The case highlighted the urgent need for social media companies to address the proliferation of CSAM online, which can have devastating consequences for victims and their families. Prajwala argued that the social media platforms were not doing enough to remove CSAM from their platforms and were failing to report it to the appropriate authorities.

The Delhi High Court ruled in favour of Prajwala, recognising the gravity of the issue and the need for social media platforms to take proactive steps to prevent the spread of CSAM. The Court directed these platforms to implement stricter measures to remove and report CSAM content, including using advanced technology and artificial intelligence to identify and flag such content.

The Court’s decision set a significant precedent in addressing the issue of CSAM online and held social media platforms accountable for the content shared on their platforms. It emphasised the importance of creating a safe online environment for children and ensuring that social media companies take responsibility for preventing the spread of harmful content.

The Prajwala vs. Facebook and Ors. case has had a far-reaching impact on the way social media platforms approach CSAM. Since the ruling, several platforms have implemented more robust measures to detect and remove CSAM content, including dedicated reporting mechanisms and partnerships with law enforcement agencies.

However, the fight against CSAM online is an ongoing one, and there is still much work to be done. Social media platforms must remain vigilant in their efforts to prevent the spread of CSAM and ensure the safety of their users, especially children.

Manish Kumar vs. State of Maharashtra

The case of Manish Kumar vs. State of Maharashtra was a significant case that dealt with the issue of freedom of speech and expression in the digital age. In 2018, Manish Kumar, a resident of Mumbai, was arrested for posting allegedly offensive comments on Facebook about the then Chief Minister of Maharashtra, Devendra Fadnavis. The comments, which were made in a private Facebook group, were deemed to be offensive and derogatory by the authorities. Kumar was charged under Section 66A of the Information Technology Act, 2000, which deals with the punishment for sending offensive messages through communication services.

The case garnered widespread attention and raised concerns about the potential misuse of the law to stifle dissent and criticism of public figures. Kumar’s arrest and subsequent charges were seen by many as an attempt to suppress freedom of speech and expression, particularly in the context of social media.

During the trial, Kumar’s defence argued that his comments were not intended to incite violence or hatred but were merely expressions of his political views. The defence also pointed out that the comments were made in a private Facebook group, which limited their reach and impact.

The Bombay High Court, in its judgement, quashed the charges against Kumar, ruling that the comments did not amount to hate speech or incitement to violence. The Court held that while the comments may have been offensive to some people, they were not sufficient to warrant criminal charges. The Court further observed that the right to freedom of speech and expression is a fundamental right guaranteed under the Constitution of India and cannot be curtailed lightly.

The Manish Kumar case set an important precedent in terms of protecting freedom of speech and expression in the digital realm. It emphasised the need for a balanced approach to dealing with offensive content online, ensuring that legitimate criticism and political dissent are not stifled under the guise of hate speech or incitement to violence. The case also highlighted the importance of considering the context and intent behind online comments, rather than relying solely on their literal meaning.

These landmark cases have significantly contributed to the legal landscape surrounding cyberbullying in India. They have helped to define the scope and limits of freedom of expression online and have set important precedents for the protection of individuals against cyberbullying.

Famous cases of cyber bullying

Cyberbullying has become a serious issue in India, with many individuals falling victim to online harassment, threats, and humiliation. Several notable cases have highlighted the prevalence and impact of cyberbullying in the country:

The Bullied Schoolgirl:

Case: In 2016, a 15-year-old schoolgirl in Kerala faced relentless online harassment after a video of her dancing at a school function went viral.
Impact: The girl faced severe cyberbullying, including mean comments, body shaming, and threats of physical harm. She was forced to drop out of school and seek counselling to cope with the trauma.

The Death of Rizwan Asad:

Case: In 2012, a 21-year-old engineering student, Rizwan Asad, committed suicide after facing severe cyberbullying for a Facebook post he made, which was perceived as blasphemous.
Impact: Asad’s death sparked nationwide outrage and highlighted the deadly consequences of online harassment. It led to calls for stricter cyberbullying laws and increased awareness about the issue.

The Doxxing of Journalist Swati Chaturvedi:

Case: In 2018, journalist Swati Chaturvedi’s personal information, including her address and phone number, was leaked online. She became the target of a vicious online smear campaign aimed at discrediting her work and reputation.
Impact: The incident highlighted the harassment faced by journalists who report on sensitive issues. Chaturvedi persisted in her work, despite the online abuse, and advocated for stronger protection for journalists.

The Online Abuse of NDTV Journalist Ravish Kumar:

Case: Prominent journalist Ravish Kumar has faced persistent cyberbullying, including threats, personal attacks, and attempts to tarnish his reputation.
Impact: Kumar’s case illustrates the challenges faced by journalists in the digital age, where they often become targets of online harassment and abuse for their work.

The #MeToo Movement:

Case: The #MeToo movement in India brought to light numerous cases of online harassment and cyberbullying faced by women. Many shared their experiences of being subjected to inappropriate comments, threats, and sexual harassment online.
Impact: The movement highlighted the need for a broader conversation about online safety and consent, and led to increased awareness of the issue of cyberbullying.

These cases are just a few examples of the many instances of cyberbullying that occur in India. The prevalence of the problem demands a concerted effort from individuals, communities, and policymakers to address it effectively.

How can we stop cyberbullying

Protecting accounts with passwords.
Not sharing any kind of personal information with strangers.
Parental control if the kids are using mobile phones or computers.
Be aware of the messages, notifications, or calls.
Always keep the behaviour records of teens or school students. The nature of a child can be affected by cyberbullying; they can become silent or aggressive.

Initiatives taken by indian government

As the cases of cybercrime have been increasing, the Ministry of Women and Child Development has launched a cybercrime complaint portal [[email protected]] to report cybercrime.
Anti-bullying or cybercrime committees are formed in schools and colleges to control bullying cases.

Conclusion

Cyberbullying is evil for society. The victims of this crime should be justified, as they do need to overcome the fear and anxiety they get from it. The bullies who target innocent people should be punished. The mental as well as emotional loss of a victim should be compensated. Cyberbullying can be stopped if society or parents are aware of what their children are doing. They should be aware of their child’s activities. Both teens and adults should understand the merits and demerits of using the social platform. They should know their privacy rights, and people should be vigilant and aware of each activity they are doing on social networking platforms. School students and teens should be taught about these crimes in schools. Parents should also supervise their kids to prevent bullying.

References

Principle of privity of contract

By

Vanshika Kapoor

-

July 2, 2024

0

This article has been written by Sanjana Ahuja 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

As per Section 2(h) of the Indian Contract Act of 1872, the term “contract” is defined as an agreement that is enforceable by law. Such an agreement must be made between two or more parties forming consideration for each other and only based on its enforceability would it earn the status of being called a contract.

One of the primary ingredients of a contract stems from the promise made by the parties to a contract to each other, leading to the formation of a contractual relationship between them for the enforcement of their rights and obligations.

Meaning and scope of privity of contract

Privity of contract is a common law doctrine that states that only the parties to a contract can either enforce the benefit or be held liable for any obligation under the contract. No rights can be conferred or obligations can be imposed by a contract on anyone who is not a party to it. Hence, any third party or a stranger who is not a party to a contract cannot enforce the contract on itself, unless it is expressly provided for in the contract or purports to confer such benefit.

This doctrine is based on the underlying principle of the “interest theory,” which states that only those persons who have an interest in the contract have the recognition in law to protect them. In other words, only parties to a contract can sue or be sued.

Privity of contract has 3 broad effects:

A third party cannot receive a benefit if he is not a party to that contract
A third party cannot be held liable under a contract if he is not a party to that contract
A third party cannot enforce a contract if he is not a party to that contract

Illustration:

Arjun (seller) enters into a contract with Vishal to sell goods, specifying the price, quantity and delivery date of the said goods. Now, if Arjun defaults on delivery of the goods on the agreed date, Vishal can sue Arjun for breach of contract. However, if Kiran, who is not a party to a contract, suffers loss from such a breach, cannot sue Arjun for breach of contract.

Essentials of privity of contract

Valid contract: The basic requirement for privity of contract to come into play is that it should be a valid contract. The parties entering into a contract must be competent; there should have been free consent and some consideration must be exchanged among them to satisfy the conditions under the provisions of the Indian Contract Act, 1872.
Breach of contract: The second essential requirement is that one party must be liable for breach of contract to allow the other party to be able to enforce his rights.
Only parties can sue each other: As a final requirement, only the parties to a contract can sue each other in case of non-performance, unless the third party falls under the exceptions.

Privity of contract in English vs Indian law

As a general rule under common law, a person who has not provided consideration for an agreement cannot sue under contract law to enforce it. There must be a movement of consideration from the person who is seeking to enforce the contract.

In the landmark case of Tweddle vs. Atkinson, the plaintiff’s claim for breach of contract was dismissed by the court. The central issue revolved around the enforceability of a contract between two fathers, where the son of one father was promised a sum of money upon his marriage to the daughter of the other father.

The court held that the plaintiff, the son, lacked the legal standing to enforce the contract. The rationale behind this decision was that he was not a party to the contract. The agreement was entered into solely between the two fathers, and the son was not privy to the discussions or negotiations. Therefore, he could not claim the rights and benefits arising from the contract.

Furthermore, the court ruled that the plaintiff had not provided any consideration in exchange for the promise made by the bride’s father. Consideration is an essential element of a legally binding contract. It refers to the value or benefit exchanged between the parties in return for the promises made. In this case, the son had not offered anything of value or performed any act in exchange for the promise of money.

The court also highlighted the legal principle of privity of contract. This principle establishes that only the parties to a contract can enforce or be bound by its terms. Since the plaintiff was not a party to the contract, he could not enforce it against the bride’s father.

The Tweddle vs. Atkinson case serves as a precedent in contract law, emphasising the importance of contractual privity and consideration. It clarifies that a third party cannot enforce a contract to which they are not a party, even if they were beneficiaries of the promises made.

In Dunlop Pneumatic Tyre Co. Ltd. v. Selfridge Ltd. (1915), the Court’s decision hinged on the principles of contract law and the concept of privity of contract. The Court held that Dunlop, despite being the manufacturer of the tyres supplied to Dew, could not claim damages from Selfridge because Dunlop was not a party to the contract between Dew and Selfridge.

The Court reasoned that a contract is a legally binding agreement between two or more parties, and Dunlop was not privy to the contract between Dew and Selfridge. As such, Dunlop had no legal standing to enforce the terms of the contract or seek compensation for any alleged breach.

Additionally, the Court considered the issue of consideration, which is an essential element of a legally binding contract. Consideration refers to the exchange of something of value between the parties to a contract. In this case, Dunlop had not provided any consideration directly to Selfridge. While Dunlop had supplied the tires to Dew, this transaction was separate and distinct from the contract between Dew and Selfridge.

Furthermore, the Court noted that Dunlop had not communicated any terms or conditions to Selfridge regarding the sale of the tyres to Dew. Therefore, Selfridge could not have reasonably known that Dunlop intended to impose any obligations on them.

The Court’s decision in Dunlop v. Selfridge established the precedent that a third party, such as Dunlop, cannot enforce a contract to which they are not a party and have not provided consideration. This principle helps to maintain the integrity of contractual relationships and ensures that only those parties who have agreed to the terms of a contract are bound by its provisions.

The position of this doctrine is the same as in the Indian Contract Act, 1872, with the only difference being that under Indian law, a stranger or third party can sue if there is involvement of consideration, as opposed to such a position in England.

In the case of Jamna Das vs. Ram Autar (1911), the Privy Council held that there was no contract between the plaintiff and the other party. The plaintiff, hence, cannot sue for damages since he is a stranger to the contract. However, in Donoghue vs. Stevenson (1932), the same principle wasn’t followed. Ms. Donoghue’s friend bought a faulty ginger beer that contained a partly decomposed snail, leading Ms. Donoghue to file a suit claiming damages. Even though the contract here was between her friend and the shop owner, it was observed that the manufacturer had some duty to care for and commit to his customers. Hence, she was awarded damages for the same.

Consideration in the privity rule of contract law

As stated before, the main and only point of difference between English law and Indian law is that a person can sue even if he is a stranger to the consideration. The scope of Privity is much wider under Indian law, as the definition of consideration and its importance also have a wider scope than that in English law. Hence, it is critical to understand the meaning and implications of the definition of consideration under Indian contract law.

Section 2(d) of the Indian Contract Act, 1872, explains the meaning of consideration as an act that can be established at the desire of the promisor, promise or any other person. Admittedly, it must benefit all the parties to a contract, so it may be described as any exchange of value among the parties.

Illustration:

Anita promises Ruhi that she will give her a pair of jeans in exchange of Rs. 500. But the money is given by Sita to Anita. Hence, it is evident that even if consideration is given by a third party to a contract, its existence is still significant.

In the landmark case of Venkata Chinnaya Rau vs. Venkataramaya Garu and Ors. (1882), the Hon’ble Madras High Court delved into the intricate legal concept of consideration in Indian contract law. The court’s decision clarified that, contrary to popular belief, consideration in a valid contract does not necessarily have to flow solely from the promise made by the promisor.

The crux of the matter revolved around the interpretation of Section 2(d) of the Indian Contract Act, 1872, which defines consideration as “anything of value promised to or received by the promisor from the promisee in exchange for the promise.” Traditionally, it was assumed that consideration must originate exclusively from the promisee. However, the Madras High Court’s ruling challenged this notion.

The court meticulously examined the language of Section 2(d) and concluded that the term “from the promisee” should not be interpreted restrictively. By doing so, the court opened up the possibility of consideration flowing from a third party or even from the promisor themself. This interpretation aligns with the broader principles of contractual fairness and ensures that both parties to a contract are adequately compensated for their respective obligations.

The court’s decision in Venkata Chinnaya Rau vs. Venkataramaya Garu and Ors. has had a profound impact on Indian contract law. It has broadened the scope of consideration and recognised that the exchange of value in a contract can take various forms. This interpretation has facilitated the creation of more nuanced and flexible contractual arrangements, allowing parties to structure their agreements in ways that accurately reflect their intentions and expectations.

Overall, the Madras High Court’s ruling in this case serves as a testament to the dynamic and evolving nature of Indian contract law. By recognising that consideration can flow from multiple sources, the court has ensured that the law remains adaptable to the ever-changing needs of businesses and individuals alike, fostering a more just and equitable contractual landscape in India.

Exceptions to the rule of privity to the contract law

There are certain exceptions to the rule of Privity under the Indian contract law put in place by several judges through judgements to adapt to the ever changing conditions of the market:

Beneficiary trust

When two people enter into a contract for the benefit of a third party, then the said third party (beneficiary) has the right to sue and enforce his right in case of non-performance.

In the case of Muhammad Rustam Ali Khan vs. Husaini Begum, the father and father-in-law of Husaini Begum, the plaintiff, got into an agreement that, as a consideration for getting into marriage with his son, the plaintiff would be paid Rs. 500/- per month as her Betel-leaf expenses and some immovable property was also charged for payment of these expenses. So when the plaintiff filed a suit for recovery, it was held that even though she was not a party to the contract, she was entitled to enforce her claim as a beneficiary of the same.

Provision for maintenance or marriage under family settlement

This exception was brought into force so as to protect the rights of those family members who are most likely to not get any specific share of the property, while also stressing more on the will of the testator.

For instance, if Raj has stated in his will that, after his death, his 3 sons will only receive their share of the property after each one of them pays Ruchi (his daughter) 1 lakh rupees, then such a condition has to be fulfilled. Otherwise, Ruchi, even though she is not a party to the contract, would be in a legal position to sue any of her brothers if they failed to comply with this condition. Additionally, his 3 sons would also not receive their respective shares of the property.

Agency

The base point here is, that if one of the parties to a contract enters through an agent, then on the breach, either the agent or the principal, but not both, can sue for such a breach. In these situations, it is absolutely irrelevant whether the one party had knowledge of the other party entering through or as an agent.

Conduct, acknowledgement or admission

In a situation where privity of contract may not exist between the parties to a contract, if one of the parties acknowledges the contract by his conduct or in any way that leads him to recognise the rights of the other parties, then he may be liable on the basis of the estoppels.

It was held in the case of Narayani Devi vs. Tagore Commercial Corporation Ltd. that even though there is no contract between the plaintiff and the defendant, the defendants had created such a privity by their conduct, acknowledgement and admission that the plaintiff was entitled to her action.

Conclusion

From the above discussion, it is evident that for a breach, only parties to the contract can sue and a stranger to the contract is not entitled to the same right. However, the developing circumstances have led to the formation of certain exceptional cases wherein even a stranger to the contract has been given a right to file a suit against the parties to the contract.

Under Indian law, a “stranger to consideration” can sue but a “stranger to a contract” has absolutely no right to enforce the contract, as opposed to its position under English law.

References

Digital signature and its validity under Indian Contract Act, 1872

By

Vanshika Kapoor

-

July 2, 2024

0

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

This article has been edited and published by Shashwat Kaushik.

Introduction

In this fast pace field of technological developments, all aspects have transitioned into the digital sphere. The rise of new innovations and technology has greatly boosted online transactions, which led to the transfer of online payments and the sharing of documents. Nowadays, documents are shared through email. These emerged the need to sign documents in a new mode, which can be referred to as a digital signature.

A digital signature is a complex process as it uses a cryptographic method where a pair of keys are used to verify and protect the documents. Here, both the signer and the receiver must have a digital certificate and that digital certificate needs to be issued by the Certificate Authority. Due to the proliferation of digital signatures, various organisations and industries are implementing them in various sectors as they consider the process of digital signatures to be more secure and convenient. Furthermore, digital signatureshaves increased the transparency of online interactions and have also developed a relationship of trust between customers, business partners and vendors.

What is digital signature

A digital signature is a type of electronic signature that is used to check the authenticity and integrity of digital messages and documents. This method ensures that the information that has originated with the signer is not altered in transit. It intends to control and solve the problem of tampering and impersonation in digital communications.

According to Section 2(1)(p) of the Information Technology Act of 2000 digital signature means authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with the provisions of Section 3.

Digital Signature is considered to be the electronic version of the handwritten signature or stamped seal. The digital signature uses an asymmetric key cryptography which requires two keys.i.e. Public and private keys to encrypt and decrypt data. The purpose of a digital signature is to secure and authenticate the document electronically so as to identify the signer and to make it binding on persons putting digital signatures and to achieve enforceability against the defaulting party.

Features of digital signature

Digital Signature offers several key features that enhance security and efficiency in digital transactions. These features include:

Authentication: It confirms the identity of the Signer by providing assurance that the document was signed by the claimed individual.
Integrity: A digital signature ensures that the document has not been tampered with during transmission. Even any modification in the document after signing would invalidate the signature.
Non-repudiation: The sender cannot deny the signature that he has signed digitally in the document as it has been mathematically tied to the private key.
Security: It uses cryptographic algorithms to secure the signing process.
Efficiency: A digital signature is efficient and can be used to sign electronic documents quickly. There is no need for physical paperwork.

Documents on which digital signature is invalid

For a contract to be binding and enforceable in court under Indian law, it should be in writing and adequately stamped. However, there are certain instruments that cannot be entered electronically and that do not apply to the IT Act. These instruments are listed below: –

A negotiable instrument (other than a cheque) as defined in Section 13 of the Negotiable Instruments Act of 1881.
A power-of-attorney as defined in Section 1A of the Powers-of-Attorney Act of 1882.
A trust deed as defined in Section 3 of the Indian Trust Act of 1882.
A will is defined under Section 2(h) of the Indian Succession Act, 1925.
Any contracts for sale or any other kind of transfer of interest in immovable property.

E-contracts in India

In India, the legality and enforceability of electronic contracts, also known as e-contracts, are governed by the Information Technology Act, 2000 (IT Act). The IT Act provides a legal framework for the formation and execution of e-contracts in India.

Here are some key aspects of e-contracts in India:

Formation of e-contracts:
- An e-contract is formed when an offer is made electronically and accepted electronically.
- The offer and acceptance can be expressed through emails, website forms, or other electronic means.
- The terms and conditions of the e-contract can be agreed upon electronically, and there is no requirement for a physical signature.
Validity of e-contracts:
- E-contracts are legally valid and enforceable in India under the IT Act.
- Electronic signatures are recognized as legally valid under the IT Act.
- An electronic signature can be a digital signature, a password, or any other method that identifies the signatory and indicates their consent to the e-contract.
Requirements for enforceability:
- An e-contract must meet the following requirements to be legally enforceable:
  - There must be a clear and unambiguous offer and acceptance.
  - The parties involved in the e-contract must have the legal capacity to enter into a contract.
  - The terms of the e-contract must be lawful and not against public policy.
  - The e-contract must not be entered into under duress, undue influence, or fraud.
Execution of e-contracts:
- E-contracts can be executed in India by using various electronic means, including emails, website forms, or electronic document signing platforms.
- There is no requirement for a physical contract to be printed, signed, and exchanged.
- Electronic records, such as emails, website clicks, and digital signatures, are admissible as evidence in court to prove the existence and terms of an e-contract.
Consumer protection in e-contracts:
- The Consumer Protection Act, 2019 provides additional protection to consumers who enter into e-contracts.
- Consumers have the right to receive information about the goods or services they are purchasing online, including the price, delivery charges, warranty, and refund policy.
- Consumers also have the right to cancel an e-contract within a specified period.

Kinds of e-contracts in India

Electronic contracts, also known as e-contracts, are legally binding agreements formed between two or more parties through electronic means, without the need for physical signatures. India has embraced e-contracts, recognizing their validity and enforceability under the Information Technology Act, 2000. Here are the different kinds of e-contracts prevalent in India:

1. Clickwrap agreements:

These are contracts formed when a user clicks on an “I agree” or “Accept” button on a website or software installation.
By clicking, the user signifies their consent to the terms and conditions of the agreement.
Common examples include website terms of use, software license agreements, and online shopping terms.

2. Browsewrap agreements:

These are contracts formed when a user accesses a website or uses a software without explicitly clicking on an “I agree” button.
The terms and conditions are usually displayed on the website or within the software.
By continuing to use the website or software, the user is deemed to have accepted the terms.
Browsewrap agreements are less common and may not always be legally enforceable.

3. Shrinkwrap agreements:

These are contracts formed when a user purchases a software or product that comes with a license agreement.
The terms and conditions are typically enclosed in the packaging of the product or software.
By opening the packaging or installing the software, the user is deemed to have accepted the terms.
Shrinkwrap agreements are common in software licensing.

4. E-sign agreements:

These are electronic contracts that are signed using digital signatures.
Digital signatures are electronic equivalents of handwritten signatures and are legally recognised in India under the Information Technology Act.
E-sign agreements provide a higher level of security and authenticity compared to traditional paper-based contracts.

5. Mobile app agreements:

These are contracts formed when a user downloads and installs a mobile app.
The terms and conditions of the agreement are usually displayed during the installation process or within the app itself.
By using the app, the user is deemed to have accepted the terms.
Mobile app agreements are increasingly common as more and more businesses offer mobile apps for their products and services.

6. Electronic Data Interchange (EDI) agreements:

These are electronic contracts formed between businesses that exchange data electronically, such as purchase orders, invoices, and shipping notices.
EDI agreements are typically governed by industry standards and are legally enforceable.

7. Government e-contracts:

These are electronic contracts entered into by government agencies with businesses or individuals.
Government e-contracts are subject to specific regulations and procedures laid down by the government.

8. Smart contracts:

Smart contracts are self-executing contracts written in code and stored on a blockchain.
They automatically execute the terms of the contract when certain conditions are met.
Smart contracts are still in their early stages of development and adoption in India.

The enforceability of e-contracts in India is governed by the Information Technology Act, 2000, as well as the Indian Contract Act, 1872. E-contracts must meet certain legal requirements to be valid and enforceable, such as the parties’ consent, consideration, and legality of the purpose.

E-contracts offer several advantages over traditional paper-based contracts, including convenience, speed, and cost-effectiveness. However, it is essential to exercise caution when entering into e-contracts, as there may be risks associated with electronic transactions.

Benefits of digital signature for contracts

Digital signature offer the following benefits:

Saves time and cost

A digital signature helps us save time and money by signing documents and contracts with just a click of a button. This system enables us to instantly sign and deliver the documents, expediting business operations more efficiently. It eliminates the need for physical paperwork and reduces administrative tasks.

Enhanced security

A digital signature provides high-level cryptographic techniques to secure the integrity and authenticity of a document. This reduces the risk of tampering or fraud, ensuring that the document that has been signed remains unchanged throughout its lifecycle. The level of security is such that if any unauthorised changes are made, they are detectable.

Better efficiency

Digital signatures have made the signing and verifying process simpler and faster. It has eliminated the need for physical paper-work saving time and resources. This agility is very valuable in this fast-paced business environment.

Reduction in environmental impact

By reducing paper consumption, digital signatures have made a positive environmental impact. As a result, businesses can decrease their carbon footprints and minimise waste generation, thereby promoting sustainable practices and contributing towards a greener planet.

Global accessibility

Digital signatures facilitate remote collaboration, enabling individuals to collaborate on documents irrespective of their physical location. Signatories can sign the documents from anywhere in the world and they do not need to be physically present to do so. This is particularly beneficial for businesses with international clientele.

Audit trail

Digital Signature has built-in audit trail features that record who signed a document, when they signed it and any modifications made after signing. This creates transparency and accountability and helps to resolve disputes quickly.

Demerits of digital signatures

While digital signatures offer several benefits, there are also a few demerits associated with their use:

Reliance on technology: Digital signatures rely heavily on technology, which poses a risk of security breaches in the event of a system failure or a cyberattack. If the security of the digital signature system is compromised, the integrity of the signed documents can be jeopardised.
Potential for errors: During the creation of a digital signature, there is a possibility of errors, such as selecting the wrong key or signing the incorrect document. These errors can render the digital signature invalid and affect the legal validity of the document.
Complexity for non-technical users: Understanding the technicalities of digital signatures and their verification process can be challenging for individuals who are not tech-savvy. This complexity may make it difficult for some users to adopt and effectively utilise digital signatures.
Legal recognition and enforceability: The legal recognition and enforceability of digital signatures vary across jurisdictions. While many countries have enacted laws that grant legal validity to electronic signatures, there may be specific requirements or limitations regarding the use of digital signatures in certain contexts.
Revocation challenges: Revoking a digital signature can be a complex process, especially if the private key used for signing has been compromised or lost. In such cases, there may be difficulties in invalidating the digital signature and preventing its continued use.
Potential for forgery: While digital signatures provide a high level of security, there is still a risk of forgery. Sophisticated attackers may use advanced techniques to create counterfeit digital signatures, which could undermine the trust and integrity of the digital signature system.

It’s important to note that while these demerits exist, digital signatures remain a valuable tool for ensuring the authenticity and integrity of electronic documents. By implementing robust security measures, following best practices, and staying informed about technological advancements, organisations and individuals can mitigate the risks associated with digital signatures and utilise them effectively.

Is digital signature legally valid in india

Digital signatures are legally valid in India and are recognised under the Information Technology Act of 2000. Under this Act, the validity of a digital signature has the same legal standing as a traditional signature on physical documents. This authentication process enhances security and reduces the risk of fraud, thereby fostering trust in electronic transactions.

The Information Technology Act of 2000 (IT Act) recognises electronic documents with digital signatures as legally valid and can be used as evidence in court. Some of the main clauses that pertain to the legality of digital signatures in court under the IT Act are listed below: –

Section 4 of the IT Act establishes a presumption of authenticity for electronic records signed with a digital signature, stating that when an electronic record is authenticated using digital signature then that electronic record that contains the document must be duly signed by the person who owns that signature, unless stated otherwise.

Section 65B of the Indian Evidence Act of 1882 allows electronic documents and digital signatures as evidence in court.

For a valid digital signature, Digital Signature Certificates (DSCs) are required and it needs to be issued by the licensed Certifying Authorities. Additionally, that licensed Certifying Authority must have a validity period and it must be used within the specified time frame. Section 35 of the IT Act outlines the legal requirements for Digital Signature Certificates and Certification Authority.

Section 43A of the IT Act establishes that if a certification authority messes up and issues false certificates, they can be held responsible.

From the above discussion, it can be assumed that if the digital signatures meet the legal standards and follow the rules, then they will be accepted as evidence in court with a presumption of validity for electronic records.

Evidentiary value of e-signature under Indian Evidence Act of 1872

The Indian Evidence Act, 1872 (IEA) is a comprehensive law governing the admissibility and evaluation of evidence in legal proceedings in India. It plays a crucial role in determining the evidentiary value and legal validity of electronic signatures (e-signatures).

IEA and e-signatures

Section 3 of the IEA defines “evidence” as any statement that a court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry. This broad definition encompasses electronic records, including e-signatures, as potential forms of evidence.
Section 4 of the IEA deals with the admissibility of evidence. It states that all evidence may be given orally, by writing, or by electronic means. This provision explicitly recognises the admissibility of e-signatures in electronic form.
Section 65B of the IEA specifically addresses the evidentiary value of electronic records. It states that a secure electronic record is admissible as evidence and has the same evidentiary value as a paper document. This provision provides a strong legal basis for considering e-signatures as reliable and trustworthy evidence.

Evidentiary considerations for e-signatures

Authentication: The authenticity of an e-signature is critical to its evidentiary value. Courts consider various factors to determine the authenticity of an e-signature, including the security measures employed, the verification process used, and the signer’s intent to be legally bound by the signature.
Integrity: The integrity of an e-signature refers to its unaltered state. Courts evaluate the integrity of an e-signature by examining the presence of any unauthorised modifications or tampering with the electronic record.
Relevancy: The relevance of an e-signature to the matter under inquiry is also crucial. Courts consider the purpose and context of the electronic record to determine whether the e-signature is relevant to the issues being adjudicated.

Evidentiary weight of e-signatures

The evidentiary weight accorded to e-signatures is generally comparable to that of traditional handwritten signatures. However, the evidentiary strength of an e-signature may vary depending on the specific circumstances of the case and the factors mentioned above.

Legalities for creating a valid digital signature

Section 15 of the Information Technology Act of 2000 lays down certain guidelines for creating a valid and secured digital signature. At the time of fixing a digital signature, the following things need to be fulfilled:

It should be unique.
It should be capable of identifying all the parties or subscribers to the electronic document.
It should be linked to the electronic record in such a manner that if someone tries to change the document after it has been signed, then the digital signature would become invalid.

Landmark cases relating to digital signature

In the case of State Bank of India vs. Ajay Kumar Sood, the hon’ble Supreme Court observed that judgements should be accessible to individuals from all sections of society, including persons with disabilities. Additionally, the court emphasised the necessity of using digital signatures rather than scanned versions of printed copies while signing judgements.
The Supreme Court in the case of Trimex International FZE Ltd. Dubai vs. Vedanta Aluminium Ltd. (2010) held that the terms of the agreement that have been agreed to through emails constitute a valid contract under the Indian Contract Act, 1872. Further, in the absence of the signed documents, once the contract is concluded orally or in writing, a formal contract that has been prepared and initiated by the parties will not affect the contract. Emails that have been exchanged between the parties would serve as an adequate means for approval and acknowledgement since they provide a record of the agreement.
In case of Tamil Nadu Organic Pvt. Ltd. vs. State Bank of India (2014), the Madras High Court held that contractual obligations can indeed be formed electronically and are legally enforceable. Here, the court emphasised the significance of digital signatures as outlined in Section 3 of the IT Act for authenticating electronic records. Additionally, Section 10A of the IT Act was cited to underscore the validity of electronic records and means of concluding agreements and contracts.

Conclusion

The digital signature has emerged as a powerful tool and has expanded drastically by transforming businesses and eliminating geographical barriers. The use of digital signatures has taken the place of handwritten signatures by minimising paperwork and boosting productivity. It has streamlined the process of entering into agreements by providing ease of convenience, efficiency, and security from third-party interference. Various sectors like HR, governments, cryptocurrencies, financial institutions, healthcare, and more are utilising digital signatures as they consider them to be more trustworthy and cost effective. Thus, the pervasive nature of digitalization in this contemporary society needs to be adopted by everyone so as to prevent obsolescence.

References

Anil Kumar Jain vs. Maya Jain (2009)

By

Vanshika Kapoor

-

July 2, 2024

0

This article is written by Prashant Prasad. It deals with the facts, issues, and arguments presented by the appellant, the various legal aspects involved, and the judgement that was delivered by the Apex Court in the case of Anil Kumar Jain v. Maya Jain (2009). The article delves into the legal provisions pertaining to the Hindu Marriage Act, 1955, and other relevant legal concepts, offering a comprehensive understanding of the Supreme Court’s power under Article 142 of the Constitution of India to grant divorce in cases of irretrievable breakdown of marriage.

This article has been published by Shashwat Kaushik.

Table of Contents

Introduction

Marriage is an exclusive union between a man and a woman, and certain ceremonies are required to be performed for the recognition of marriage in society. Time and again, it has been reiterated by many courts in India that “marriages are made in heaven.” The ceremony of marriage in every religion is one of the special occasions that marks the most crucial and important event in one’s life. However, on the contrary, breaking this marriage by way of divorce can be emotionally and legally difficult for the couple.

In India, the law relating to divorce is governed by various personal laws, such as the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”), the Indian Christian Marriage Act, 1872, the Parsi Marriage and Divorce Act, 1936, and Muslim Law. However, one of the exceptions is the Special Marriage Act, 1954, which is applicable to every person based on their marital ties regardless of their religion.

Contemporary law is silent regarding the justification of living separately for any of the parties before the final decree of divorce, and the marriage remains intact until the final decree is passed by the court of competent jurisdiction. The present case of Anil Kumar Jain v. Maya Jain (2009) involves the matter of divorce by mutual consent amidst the different conditions and issues associated with it. The Supreme Court of India, invoking its exceptional authority as granted under Article 142 of the Indian Constitution, granted divorce to the parties and observed that divorce can be given to the parties in cases of “irretrievable breakdown of marriage”.

Background of the case

In India, the Hindu Marriage Act, 1955, regulates marriages among Hindus, Buddhists, Jains, and Sikhs. The Act lays down the detailed procedure for the solemnization of marriage along with the rights, duties, and obligations of the spouse, and if any inconvenience or conflict arises, then what grounds of divorce would be applicable in such scenarios are being ascertained based on this Act. Divorce by mutual consent is recognized as one of the grounds of divorce, and the divorce is allowed based on this ground under various provisions of different enactments like Section 13B of the Hindu Marriage Act, 1955, Section 28 of the Special Marriage Act, 1954, and Section 10A of the Indian Divorce Act, 1869, etc.

These provisions of different Acts discharge the parties from the obligation of marriage on the basis of their mutual consent. Divorce by mutual consent is one form of divorce in which the parties mutually agree to the divorce without blaming or accusing each other. This form of divorce is completely voluntary, and the parties presenting the petition should prove some of the basic requirements, such as that the individuals have been living apart for a year or more, they are unable to live together, and the parties have mutually consented to dissolve the marriage.

Details of the case

Case name: Anil Kumar Jain v. Maya Jain
Appellant: Anil Kumar Jain
Respondent: Maya Jain
Name of the court: The Supreme Court of India

Bench of Judges: Altamas Kabir and Cyriac Joseph, JJ.
Case category: Family law matter; mutual consent divorce matters
Date of judgement: 1 September, 2009
Equivalent Citations: AIR 2010 SUPREME COURT 229, 2009 AIR SCW 5899

Facts of Anil Kumar Jain vs. Maya Jain (2009)

In the present case, the husband and wife both got married in accordance with Hindu rituals on 22^nd June, 1985. Subsequently, disputes and differences arose among the couple, and they took the decision to file a mutual divorce. As a result, they filed the joint petition to obtain the decree of mutual divorce under Section 13B of the Act on 4th September, 2004, in the district court at Chhindwara. Based on the requirement of Section 13B of the Act, the learned Second Additional District Judge of Chhindwara scheduled the date of hearing after six months, allowing sufficient time to reconsider their decision regarding divorce and the further possibility of reconciliation. After the expiry of 6 months on 7^th March 2005, the learned Second Additional District Judge took the matter under consideration in the presence of both parties. The husband restated his earlier statement that the decree of mutual divorce should be passed because it is impossible for the parties to live together. However, the wife stated that, although there are some serious differences among them, she does not want their marital ties to terminate. The learned Second Additional District Judge of Chhindwara, on account of the withdrawal of consent from the wife, dismissed the joint petition that was filed under Section 13B of the Act.

Dissatisfied by the District Court’s decision, the husband (appellant) filed an appeal under Section 28 of the Act in the High Court of Madhya Pradesh at Jabalpur on 4^th April, 2005. Before the High Court of Madhya Pradesh also, the wife expressed her wish to live separately from the husband, but at the same time she did not want the court to issue the decree dissolving the marriage. As a result, the order was passed on 21^st March, 2007 by a single judge, dismissing the appeal made by the appellant. While dismissing the appeal, the High Court took reference to the case Ashok Hurra v. Rupa Bipin Zaveri (1997), in which the court accorded the decree of divorce by mutual consent on account of extraordinary power as given under Article 142 of the Indian Constitution. The court stated that the High Court lacks such power and, considering Section 13B, the court said that the consent of the spouse regarding the mutual divorce had to continue from the date on which the petition for divorce was presented until the date of the decree. However, the High Court, in dismissing the appeal, noted that the appellant would be free to file the divorce petition in accordance with the law and that the case would be decided on its merit, considering the specific circumstances in mind that the parties had been living apart for approximately five years. Against the order of the High Court, an appeal was filed by the husband in the Hon’ble Supreme Court of India, and the case was decided by the Hon’ble Court, considering different situations and technicalities present in the case.

Issues raised

Does the consent given by both parties at the time of presenting the petition for mutual divorce under Section 13B need to persist till the decree is finally passed?
Is the irretrievable breakdown of marriage considered as a ground under Section 13 or Section 13B of the Act?
Can the Supreme Court of India, using its power under Article 142, convert the proceeding from Section 13 of the Act to Section 13B?

Contention of appellant

Mr. Rohit Arya, the learned senior advocate appearing on behalf of the husband, i.e., the appellant, contended that

Prior to filing a joint petition for mutual divorce, the parties had entered into an agreement that was aptly agreed upon by the appellant, and on the basis of the agreement, valuable property rights were transferred in favour of the wife, which she had been enjoying and continues to enjoy.
It was further submitted that, from the attitude of the wife, it can be clearly observed that the wife has no intent to live with the husband, and hence, it can be said that the marriage has irretrievably broken down.
Under these special circumstances, the Court does have the authority under Article 142 of the Indian Constitution to grant a decree of divorce under Section 13B of the Act, even if either party has withdrawn consent before passing the decree of divorce.

Legal aspects involved in this case

Irretrievable breakdown of marriage theory

This theory of divorce comes under the ambit of Section 13B of the Act. The theory affirms that if the marriage has broken down in such a way that there is no possibility to repair it again, then under that situation, the marriage should be dissolved without blaming any party or looking into their fault. Thus, if the marriage cannot be restored in the same way as before, despite the best efforts of the parties, then, in that scenario, it is used as a no-fault ground, which means neither party is required to demonstrate that the other party is responsible for the dissolution of the marriage.

Following are the factors for determining irretrievable breakdown of marriage:

The time interval for which the parties have cohabited after the solemnization of marriage.
Last time when the parties cohabited.
The allegation and nature of the allegation which were made either by the parties or by their family members.
The order passed (if any) in the previous legal proceeding regarding any matter, and what was the impact of that order.
Efforts that were made by the parties to settle their dispute either by the court’s intervention or through mediation.
Period of separation among the parties.
Along with these factors, other factors also need to be taken into account before the decree of divorce, such as the economic standing of the parties, their educational backgrounds, children, and the alimony claimed.

Judicial pronouncements regarding irretrievable breakdown of marriage theory

Naveen Kohli v. Neelu Kohli (2006)

The Supreme Court of India in this case upheld the decision made by the Family Court regarding the matter that the appellant subjected the respondent to physical, financial, and psychological abuse, and hence, their marriage was irreparably broken down, which was considered as a valid ground for granting divorce in this case.

Further, the Supreme Court of India advised the legislative body of the government to inculcate an irretrievable breakdown of marriage as one of the grounds for granting a divorce. This case emphasised the paramount importance of including irretrievable breakdown of marriage as one of the grounds of divorce, especially to protect the interests of younger children, who are the major sufferers as they are embedded in their parent’s irretrievable marriage. This case has also stated that many developed nations have already recognized the irretrievable breakdown of marriage as a separate ground for granting a divorce, and the law pertaining to divorce has evolved over time to provide a faster remedy to the parties of divorce.

Shipla Sailesh v. Varun Sreenivasan (2023)

This ruling of the Supreme Court of India has a vital impact on the divorce laws in India. In this case, the court ruled that it has the power to dissolve the marriage if it has irretrievably broken down, and even if one of the parties is unwilling, the decree of divorce can also be passed. It was further added that, under certain circumstances, the Court can even waive off the mandatory waiting period of six months for divorce under the Act.

This ruling allowed the parties to surpass the waiting period, and the parties can directly approach the Supreme Court of India for a decree of divorce if their marriage has been irretrievably broken down. Thus offering a quicker solution to the parties who are unable to live together and have mutually agreed to divorce. However, it is important to note that this ruling does not imply that the parties should directly move to the Supreme Court for a speedy divorce. The granting of divorce on the ground of irretrievable breakdown of marriage is discretionary, and hence, great care and caution must be taken before moving ahead with it.

Section 13 of the Hindu Marriage Act, 1955

The opening line of Section 13 of the Act mentions that any marriage that is solemnised either before or after the commencement of the Act may be terminated by a decree of divorce. The decree of divorce can be passed if the petition is presented by any of the parties on the basis of the various grounds that are specified under this Section. The different grounds of divorce that are specified under this Section are as follows:

Adultery [Section 13(1)(i)]: Adultery is defined as voluntarily having sexual intercourse outside of marriage. The petitioner bears the burden of proof to prove that the respondent had sexual intercourse with any other person and that the marriage was in existence during that time.
Cruelty [Section 13(1)(ia)]: Cruelty as a ground of divorce can be defined as any human behaviour that causes danger or apprehension of danger to life, limb, or health to the petitioner. The cruelty can be either mental or physical. Physical cruelty involves acts such as causing bodily injury, beating, etc. Whereas some instances of mental cruelty can be the demand for dowry, the accusation of false adultery, etc.
Desertion [Section 13(1)(ib)]: Desertion basically means abandoning the partner continuously for a period of 2 years or more. For desertion to be a valid ground of divorce, certain essentials must be present, such as animus deserendi (an intention to desert), desertion without reasonable cause, desertion without the other partner’s consent, and a period of at least 2 years. If these essentials are fulfilled, then desertion can become a ground for divorce.
Conversion [Section 13(1)(ii)]: If any one of the spouses ceases to be a Hindu without the consent of the other partner by converting to any other religion, then that can serve as a ground for divorce.
Insanity [Section 13(1)(iii)]: If any one of the partners has been incurably of unsound mind and is perpetually suffering from a mental disorder to such an extent that the petitioner cannot reasonably be expected to live with the respondent for the rest of their lives, the petitioner may seek a divorce based on this ground.
Venereal disease [Section 13(1)(v)]: If any of the spouses is suffering from a sexually transmitted disease that is not curable and is transmittable, such as AIDS, then such disease forms the basis of divorce.
Renunciation [Section 13(1)(vi)]: If any one of the spouses enters into the religious order, renouncing the worldly affairs that amount to renunciation. However, the renunciation of the world and entering into the holy religious order must be absolute and not partial. Therefore, in the case of renunciation by a person, it would be tantamount to the civil death of the person and, hence, becomes grounds for divorce.
Presumption of death [Section 13(1)(vii)]: If a person has not been known to be alive by the person who would naturally have heard about it for a period of seven years or more, then, in that condition, it would lead to the legal presumption of the death of that person.

Special grounds of divorce are available to wives only under Section 13 of the Act:

Pre-Act polygamous marriage [Section 13(2)(i)]: If the husband was already married before the Act came into force, and after the commencement of the Act, if the husband again gets married, then both the wives have the right to seek divorce.
Rape, Bestiality, or Sodomy [Section 13(2)(ii)]: If, after the solemnization of marriage, the husband is guilty of rape, bestiality, or sodomy, then the wife can file a petition for divorce.
Decree or order of maintenance [Section 13(2)(iii)]: If the order of maintenance has been issued against the husband under Section 18 of the Hindu Adoption and Maintenance Act, 1956, or Section 125 of the Code of Criminal Procedure, then a divorce may be filed by the wife if they have been living separately and have not cohabited for at least one year since the date of issuance of the order.
Repudiation of marriage [Section 13(2)(iv)]: If the marriage is solemnised between the husband and wife before the wife attains the age of fifteen years, then in that situation, the wife can opt to repudiate the marriage after reaching the age of 15 years but before the completion of the age of 18 years.

Section 13B of the Hindu Marriage Act, 1955

This Section was inserted in the Act by an Amendment in 1976, and hence, one more ground for divorce became part of the Act, i.e., divorce by mutual consent. Section 13B of the Act states that:

Subject to the provisions of the Act, a petition for the dissolution of marriage may be presented at the District Court with the mutual consent of the parties. The petition can be presented regardless of the fact that the marriage was performed either prior to the commencement of the Act or after the commencement of the Act. The petition can be presented on the basis of the fact that the spouse has not been living together for an interval of one year or more, it is not possible for them to reside together, and they have voluntarily agreed to dissolve their marriage.
After six months of the presentation of the petition, but before eighteen months, if the petition is not withdrawn by the parties, the court, upon being assured of the validity of the declaration presented in the petition, after hearing both parties and making such inquiry as the court deems fit, may grant a decree of divorce declaring the marriage dissolved with effect from the date of passing of the decree.

Grounds of divorce by mutual consent

Divorce can be granted by the court based on mutual consent on three grounds. The judiciary, through various rulings, has clarified the actual meaning of those grounds and how they can serve as a ground for filing a mutual consent divorce.

Living separately

It is necessary that the spouse must be living apart for a period of at least one year. The Apex Court in the case of Sureshta Devi v. Om Prakash (1991) has held that the word “living separately” as a ground for divorce by mutual consent means not living like a husband and wife. It was further added by the court that it has no connection with the place of living; the parties may live under the same roof, but it is possible that they might not live as husband or wife. The court ruled that what is material is that the husband and wife have no intention to perform their marital obligations, and with that, they had been living apart for a period of at least one year before the petition for divorce was presented.

Spouses not been able to live together

The parties to the divorce have been unable to reside together, which is another ground for establishing the divorce by mutual consent. The Supreme Court of India in the case of Sureshta Devi vs. Om Prakash (1991) has held that the expression “have not been able to live together” means that the marriage is broken down irretrievably with no prospect of reunion among the spouses. It was further added by the Court that the parties need not prove that it is not possible for them to live together; the mere presentation of a petition with their joint consent is an indication of the fact that the parties were not able to live together.

Mutual agreement among the parties

The parties must mutually agree to dissolve their marriage. There must not be any coercion, undue influence, or any other supervening factor that compels the parties to present the petition for divorce. The parties shall voluntarily agree, and their consent should be completely free.

Is the waiting period of six months obligatory or optional?

Section 13B of the Act specifically designates that if the petition is presented by the parties for divorce by their mutual consent, then there should be a waiting period of not less than six months to reconsider their decision. However, the question emerges in many cases: can the divorce be granted even before the period of 6 months if there are compelling circumstances? On this question, there has been conflicting judgement from various courts as to whether the courts are required to wait for the period of six months as mentioned under Sub-section (2) of Section 13B.

In the case of Dineshkumar Shukla v. Smt. Neeta (2005), it was held by the Madhya Pradesh High Court that the waiting period of 6 months is directory in nature and can even be brought down from 6 months. However, the mandatory requirements that are mentioned under Section 13B (1) must be fulfilled in case the waiting period is brought down from 6 months to less than that. However, in the case of Hitesh Narender Doshi v. Jesal Hitesh Joshi (2000), it was ruled by the court that the provision pertaining to the waiting period of 6 months had been inserted with the purpose of giving the parties a reasonable amount of time to reconsider their decision and the possibility of reconciliation, so as to promote welfare among the parties to the dispute and to uphold the importance of marriage.

Furthermore, in the case of Grandhi Venkata Chitti Abbai (1998), it was held by the Andhra High Court that if Section 13-B(2) is read as a mandatory provision, then the very purpose of liberalising the decree of divorce by way of mutual consent will be frustrated. In the case of Ashok Hurra vs. Rupa Ashok Hurrarupa Bipin Zaveri (1997), it was held by the Supreme Court of India that the court, in exercise of extraordinary power as granted under Article 142 of the Indian Constitution, can grant the divorce without even waiting for the statutory period of 6 months if it is satisfied that the marriage is irretrievably broken down.

Therefore, it can be inferred from the above ruling of different courts that the courts are inclined more towards waving off the period of 6 months if the situation is such that there is no possibility of reunion among the parties. The Supreme Court of India, in the scenario of irretrievable breakdown of marriage, can grant divorce without even waiting for the period of 6 months by virtue of extraordinary power as enshrined under Article 142 of the Indian Constitution.

Is a unilateral withdrawal of consent a viable option?

There might be a situation when the parties apply for mutual consent and then, in between the case, one of the parties withdraws the consent without giving any intimation or information to the other party. This issue has been a matter of question in many cases, including the present case of Anil Kumar Jain v. Maya Jain. There have been different opinions from the various courts on this particular issue. The main question associated with it is, since the parties apply for the mutual divorce jointly, how can it be withdrawn unilaterally? And if it is withdrawn, then what is the justification behind such a withdrawal?

In the case of Jayashree Ramesh Londhe v. Ramesh Bhikaji (1984), it was held by the Bombay High Court that once a joint petition is filed by both parties with their mutual consent, no party is allowed to withdraw it without the mutual consent of both.

In the case of Sureshta Devi v. Om Prakash (1991), it was held by the court that if one of the parties recalls the consent, then the court cannot pass the decree of mutual divorce. The court further added that mutual consent is the ‘sine qua non’ for passing a decree of divorce under Section 13B. Therefore, mutual consent must subsist until the decree of divorce is passed.

However, in the present case of Anil Kumar Jain v. Maya Jain, the Supreme Court of India has taken a contrary view and held that while exercising extraordinary power under Article 142, a decree of divorce can be granted to do complete justice to the parties.

Article 142 of the Indian Constitution

The Constitution of India gives power to the Supreme Court to pass any decree in order to do complete justice. For the past few years, the ambit of Article 142 has expanded, and it has been invoked on several occasions to do “complete justice”.

Article 142(1) of the Indian Constitution states that the Supreme Court of India, while exercising its jurisdiction, may pass such an order or decree as is necessary for doing complete justice regarding any matter that is pending before the court. The decree or order that is being passed by the Court while exercising the power under this Section shall be applicable across the territory of India in any manner as prescribed by the Parliament.

Article 142(2) further states that, subject to the provisions of any law made by the Parliament, the Supreme Court of India shall have the power to make any order throughout the territory of India for securing the attendance of persons, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

This Article confers a very wide power on the Supreme Court of India to do complete justice in any matter pending before it. However, this wide ambit of power and how it can be limited were discussed in the case of Zahira Habibullah Sheikh v. State of Gujarat (2004). It was discussed in this case that the wide power granted to the Supreme Court under Article 142 can “be limited to the short compass of the actual dispute before the court and not to what might reasonably be connected with or related to such a matter”.

The Supreme Court of India discussed the effect of the different legislative enactments on limiting the power contained under Article 142 in the case of Delhi Judicial Service Association v. State of Gujarat (1991). The Supreme Court of India has held in this case that the constitutional power of the Supreme Court as guaranteed under Article 142 cannot be undermined by any statutory provision.

Judgement in Anil Kumar Jain vs. Maya Jain (2009)

It was considered by the Court that in the present case, the wife has made a clear intention of not living with the husband, and apart from that, she has also not agreed to a mutual divorce. The court observed that under ordinary circumstances, the petitioner in the present case would be left with the only remedy of filing a separate petition for divorce on the basis of different grounds available under Section 13 before the Family Court. But it was added by the court that in the present case, there are certain acknowledged facts that invoke Section 13B. Section 13B allows the divorce on the basis of the fact that the couple have been living separately for one year or even more than one year, and in the present case, the parties have been living separately for more than 7 years. The Supreme Court noted that before the filing of the application for mutual divorce by the parties, and by virtue of the agreement among them, the husband transferred some of the valuable property rights in the wife’s favour, and after the property’s registration, it can be well inferred that the consent was withdrawn by the wife. The wife continues to enjoy the property while living separately from the husband.

After considering the different circumstances and issues present in the case and the submission made. The court allowed the appeal and impugned the order and judgement that was passed by the High Court, and the petition for granting divorce by mutual consent under Section 13B was accepted by the court. The court held that there would be a divorce decree based on the joint petition that was submitted before the Second Additional District Judge of Chhindwara under Section 13B of the Act, and the marriage, which was solemnised on 22^nd June, 1955, shall stand dissolved from the date of judgement.

Issue-wise Judgement

Issue 1: Does the consent given by both parties at the time of presenting the petition for mutual divorce under Section 13B need to persist till the decree is finally passed?

The Supreme Court, regarding this issue, held that it is empowered to accord the decree of divorce by mutual consent based on Section 13B of the Act, even if either the husband or the wife withdraws the consent before passing the decree. The court was of the opinion that the consent given by the spouse during the time when the joint petition for mutual divorce was submitted should continue until the second stage, when the petition comes for order and a decree of divorce is finally passed. However, only the Supreme Court, using its authority under Article 142, can issue an order to ensure complete justice for the parties involved.

Issue 2: Is irretrievable breakdown of marriage considered as a ground of divorce under Section 13 or Section 13B of the Act?

The Supreme Court of India, on this issue, was of the opinion that the irretrievable breakdown of marriage is not a ground that is mentioned under Section 13 or Section 13B. However, the said doctrine can be applied to either of the two provisions when the case is before the Supreme Court. The reason for this is the exercise of extraordinary power as conferred under Article 142 of the Indian Constitution. Moreover, the Supreme Court, while exercising its extraordinary power as conferred under Article 142 of the Indian Constitution, can grant relief to the parties even without waiting for the period of 6 months as specified under Section 13B of the Act.

The court further stated that the decision based on the doctrine of irretrievable breakdown of marriage can’t be given by the High Court, as the High Court does not have similar power that is exercised by the Supreme Court as conferred by Article 142 of the Indian Constitution. Therefore, neither the civil courts nor the high courts have the power to make the decision prior to the period stipulated under the relevant provision of the Act or on the basis of grounds not provided under Section 13 or Section 13B of the Act.

Issue 3: Can the Supreme Court of India, using its power under Article 142, convert the proceeding from Section 13 of the Act to Section 13B?

Regarding this issue, the Court held that the Supreme Court, while exercising its power as conferred by Article 142 of the Indian Constitution, can transform a proceeding under Section 13 of the Act into one under Section 13B and issue a decree for mutual divorce. The Supreme Court can pass the decree of mutual divorce if such a situation exists even without waiting for the statutory six-month period, a power that no other courts can exercise.

Cases referred to pronounce the judgement of Anil Kumar Jain v. Maya Jain

Smt. Sureshta Devi v. Om Prakash (1991)

In this case, it was ruled that consent, which is given by the spouse while filing the petition for divorce by mutual consent, must exist until the decree of divorce on that petition. If any of the parties withdraws their consent when the petition for mutual divorce is under consideration by the court or the consent is withdrawn before the passing of the decree, then under those circumstances, the petition under Section 13B of the Act would be dismissed.

Chandrakala Menon (Mrs.) and Anr. v. Vipin Menon (Capt.) and Anr. (1993)

In this case, the petition for mutual divorce was filed under Section 13B, and afterwards, the consent was withdrawn within a week of submitting the joint petition. The Supreme Court of India, exercising its power as conferred by Article 142 of the Constitution, accorded the decree of divorce under Section 13B in order to secure the ends of justice. However, certain conditions were imposed before passing the decree, with the clarification that the decree would take effect only upon the accomplishment of the conditions that are associated with the passing of the decree.

Ashok Hurra v. Rupa Bipin Zaveri (1997)

In this case, the Supreme Court of India has accorded the decree of divorce based on the mutual consent of the parties exercising its extraordinary power as conferred by Article 142 of the Indian Constitution. The court in this case granted the divorce to the parties, and despite the wife’s withdrawal of consent, the court was of the opinion that the marriage had irretrievably broken down. So, it was observed that consent can be withdrawn unilaterally only in exceptional cases if reasonable grounds exist.

Sandhya M. Khandelwal v. Manoj K. Khandelwal (1998)

This case has come before the Supreme Court of India through a transfer petition seeking to move the current matrimonial suit. When the case was pending before the court, the parties settled their dispute, and submissions were made regarding mutual divorce. The court was of the opinion that the terms of settlement are beneficial to both parties and also in the best interest of their minor son. The petition was dealing with Section 13 of the Act, and the court, keeping in mind the pact among the parties, granted the decree of divorce by treating the pending application as one of the petitions under Section 13B of the Act.

Kiran v. Sharad Putt (2000)

In this case, the parties were living separately for several years, and there was pending litigation regarding the matter under Section 13 of the Act for more than 11 years. At a later stage of the proceeding, the parties filed a joint petition for the amendment in the divorce petition. The Supreme Court of India, while exercising its extraordinary power under Article 142 of the Indian Constitution and treating the said petition of divorce as one of the petitions under Section 13B, granted a decree of mutual divorce at the stage of SLP.

Anjana Kishore v. Puneet Kishore (2002)

In the present case, while hearing the transfer petition, the court exercised its authority as conferred under Article 142 of the Indian Constitution. It directed that the parties, who have already filed a joint petition for mutual divorce under Section 13B of the Act in the Family Court at Bandra, Mumbai, along with a copy of the settlement between them, need not wait for the period of 6 months as stipulated under Sub-section (2) of Section 13 of the Act. The Family Court can issue the final order on that petition at any time it deems appropriate upon receiving a copy of the settlement.

Swati Verma (Smt.) v. Rajan Verma and Ors. (2004)

The present case was related to the transfer petition, and the doctrine of irretrievable break-down of marriage was invoked. Afterwards, the parties arrived at the compromised settlement and thereby filed an application under Section 13B of the Act read with Article 142 of the Indian Constitution. The court, while exercising its power under Article 142 of the Indian Constitution, allowed the application for mutual divorce in order to give rest to the litigation associated with the present case.

Conclusion

Mutual consent divorce among the parties is one of the processes of harmonious settlement of the dispute in which the time as well as the resources of the parties are saved. In the entire case, it can be inferred that the court has considered some of the most vital aspects of the matrimonial dispute. Interpreting Section 13B and the various precedents, it was ruled by the court that the mandatory period of 6 months varies according to the case, and with regards to the power of the Court, the Supreme Court, while exercising the power under Article 142 of the Indian Constitution, can issue the decree of divorce even without waiting for the statutory period of 6 months, while this power is absent in other High Courts. This case marks one of the most important precedents regarding the unilateral withdrawal of consent after the filing of the mutual divorce petition.

Mutual consent divorce offers parties the resolution of their marital obligations, but the parties should reconsider their decision and the likelihood of reconciliation among them before directly approaching the court of law to file the divorce petition. The parties should realise their rights and responsibilities associated with that marital tie, and they can opt for mediation or any counselling session before directly approaching the court. While divorce is an option, the parties should consider working on their marriage, which might lead to a stronger and more fulfilling bond.

Frequently Asked Questions (FAQs)

What reliefs may be available against the dismissal of the joint petition for divorce by the lower court on account of the unilateral withdrawal of consent?

After the dismissal of a joint petition on account of the unilateral withdrawal of consent regarding the mutual consent divorce, an appeal can be filed under Section 28 of the Hindu Marriage Act, 1955.

What is the significance of the decision given by the court in the case of Ashok Hurra v. Rupa Bipin Zaveri in the present case?

The case of Ashok Hurra v. Rupa Bipin Zaveri holds immense significance in the present case, as the court has granted the divorce by mutual consent to the parties using its authority as enshrined under Article 142 of the Indian Constitution.

What are the situations in divorce cases in which the Supreme Court of India can invoke its extraordinary jurisdiction under Article 142 of the Indian Constitution?

The court can exercise its power under Article 142 of the Indian Constitution to grant relief to the parties whose marriage has been irretrievably broken down and justice cannot be served with the conventional prolonging legal process.

What was the rationale behind the Court’s decision to grant the divorce to the parties despite the wife’s withdrawal of consent?

The Court, based on the facts and circumstances of the case, concluded that the parties have been living separately for a long time, and it can be seen that there is no intention among the parties to live together in the future. The overall circumstances indicated the irretrievable breakdown of the marriage, and hence the court granted divorce to the parties.

References

Kailashwati vs. Ayodhia Prakash (1977)

By

Vanshika Kapoor

-

July 2, 2024

0

This article is written by Diksha Shastri. It attempts to get to the bottom of the facts, issues, judgement, as well as the rationale behind the same, in the case of Kailashwati vs. Ayodhia Prakash (1977). The case contemplates the idea of a marriage involving only occasional meetings, solely at the wife’s discretion, to protect her free right to work, while deciding a request for restitution of conjugal rights under the Hindu Marriage Act, 1955.

This article has been published by Shashwat Kaushik.

Table of Contents

Introduction

Marriage is more than just a contract. Since centuries, for Hindus, marriage has remained a sacred institution, a promise to build and grow lives together. To protect this sanctity of marriage as an institution, the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) was passed. It is the prevailing law to decide for all different issues arising with respect to the marriage between two Hindus. The Act covers all different aspects of a Hindu marriage, from defining it, establishing its ceremonial procedure and registration, to judicial separation and divorce. Every year, the courts of India deal with many different matters pertaining to any of these issues. With time, we have seen a rise in matrimonial disputes. However, a positive aspect is, nowadays, the fundamental rights of women, such as their right to work in accordance with their will, is protected. In the olden days, in matrimonial disputes, the duties of a wife would supersede the right of a woman. Such a disturbingly true issue fell before the Punjab and Haryana High Court in the case of Kailashwati v Ayodhia Parkash (1977)

In this article, we will go back to 1977 when an issue questioning the sanctity of a weekend marriage at the unilateral decision of the wife, was brought before the Court when the wife was desirous of continuing her employment as a teacher away from her matrimonial home.

Details of the case

Name of the case: Kailashwati v. Ayodhia Parkash

Parties: Smt. Kailashwati (Appellant), and Ayodhia Parkash (Respondent)

Court: Punjab and Haryana High Court

Bench: Justice Sidhu, Justice S.P Goyal and Justice S.S Sandhawalia

Case type: Letters Patent Appeal (an appeal against the decision of a single judge, to a different bench of the same court.)

Important provisions: Section 9 of Hindu Marriage Act, 1955

Date of the judgement: 19 November, 1976

Citation: (1977) 79 PLR 216

Background of the case

A brief background of the case is that the husband and wife were both working professionals. However, when the wife got transferred to another location, the husband wanted her to live with him and not move. So, he filed a suit under Section 9 of the Act, for the restitution of conjugal rights. The trial court agreed with the husband’s request leading to the appeal by the wife before the Punjab and Haryana High Court, which then concluded in a letters patent appeal, specifically for deciding the issue of whether or a wife was entitled to unilaterally decide on only occasionally meeting her husband at their matrimonial home, solely for the purpose of her employment.

Facts of Kailashwati vs. Ayodhia Prakash (1977)

A woman named Kailashwati tied the knot with Mr Ayudhia Parkash, under the sanctity of the Hindu Marriage Act, on 29th June 1964. Both the partners were working professionals and were employed as village level teachers. Kailashwati’s place of employment was in the village of Bilga, in tehsil Phillaur (her maternal home). However, her husband’s place of employment was at village Kot Ise Khan. Once married, she got a transfer to her husband’s employment location and they went on to live happily for 8-9 months, in their matrimonial home.

Thereafter, as per the allegations of Mr. Ayudhia Prakash, Kailashwati insisted on getting herself transferred again to village Bilga, her maternal home. Ever since the transfer, she was residing with her parents against her husband’s wishes. The only time they lived together was for a really short span of 2 to 3 days, when they had gone to another location at Moga.

As a result, the husband filed an application under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights on 4th November, 1971. In response to this application, the wife stated that she had never refused to honour her matrimonial obligation. However, she was firm and unwilling to resign her job and return to the matrimonial home.

On 5th February, 1973 the Trial Court decided the matter in favour of the husband. Aggrieved by the decision, the wife then moved an appeal before a single judge bench of the Punjab and Haryana High Court. The judge after relying on a precedent set in Smt. Tirath Kaur v. Kirpal Singh (1962), decided to uphold the Trial Court’s decision.

As she did not find peace, the appellant then made a letters patent appeal. However, due to some conflict of authority the case was then brought before the full bench of the Punjab and Haryana High Court.

Issues raised

Three main issues were discussed and resolved in the case of Kailashwati v Ayodhia Parkash (1977).

Whether a husband can be denied relief of conjugal rights on any other grounds except under the Section 9 of the Act, as applicable then?
Whether a wife, who was employed away from her matrimonial home would be allowed by the law, to refuse leaving her employment so she could live with her husband in their matrimonial home?
Does the Hindu Marriage Law sanctify the concept of a matrimonial home reduced to occasional nocturnal meeting, at the unilateral wish of the wife?

Arguments of the parties

Appellant

The appellant wife, Kailashwati and the counsels appearing on her behalf were very firm on their stand since the first petition for restitution of the conjugal rights was filed by her husband.

Firstly, she claimed that she was not bound or obligated to reside with her husband in their matrimonial home, because the decision to marry her was taken by the husband after knowing and accepting her status as a working woman. Remember, in the 70s, it wasn’t a common phenomena or a day to day scenario. The wife had been quite vocal about her choice to continue working, which was accepted honourably by her husband.

Moreover, the wife also iterated that she had always been faithful and fulfilled her duties as a wife by allowing access to her, joining him for holidays, trips and more. She was aggrieved by the fact that the husband insisted on her leaving her employment, despite these facts. Resultantly, she disagreed to move back to the matrimonial home.

Respondent

The respondent, Mr. Ayudhia Prakash’s contention from the beginning remained that his wife was deliberately staying away from the matrimonial home. To prove this, he even mentioned that she had been away for a continuous period of 6 years. Besides, he even claimed to be capable enough to provide his wife a life filled with dignity in their matrimonial home through his various sources of income. He was aggrieved by the fact that for the best years of his life, he was denied the society and sustenance of a conjugal life. According to him, there was a high possibility of her staying away until she reached the age of superannuation from the government.

Legal provisions involved in Kailashwati vs. Ayodhia Prakash (1977)

Provisions of the Hindu Marriage Act have played a key role in the delivery of this judgement. Here’s how:

Restitution of conjugal rights

Section 9 of the Act allows either party of a marriage to seek restoration of their marital rights from the court. Moreover, according to this Section, if there are no reasonable conditions behind not being allowed to enjoy these rights, the court can easily order the other party to restore the conjugal or marital rights. At the time when this case was filed by the husband, Ayudhia Parkash, this Section was not amended and did not speak of the burden of proof. However, when the court was deciding upon this matter, post enactment of the The Marriage Laws (Amendment) Act, 1976, the entire section was taken into consideration. Here, an explanation was added due to which, the burden of proving a reasonable reason for such a break from the marital duty, lay on the person who abandoned the duty, that is, the wife in this case.

Purpose of Section 9

As per the Hindu principles, marriage is a sacred union of two individuals, over the ages of 18 (female) and 21 (male). Since the longest of times, a marriage between two consenting adults, is seen as a tie that lasts forever. Even though times are changing and divorce rates are increasing, the principle has not faltered. The purpose of Section 9 of this Act is to protect this sanctimonious tie.

Once the parties get married with consent, it is their responsibility to respect the institution of their marriage. By passing an order for restoration of the marital rights, the court aims to protect this religious and sacred institution, especially when there is no reasonable reason for abandonment of one party by the other.

Essentials for invoking restitution of conjugal rights

Section 9 of the Act provides for certain essential requirements. A husband or a wife in a Hindu marriage can only apply for the restoration of their conjugal rights if the following requirements are fulfilled:

The parties must be married as per the Hindu rituals and laws
Either the wife or the husband must be excluded from the presence of the other
This exclusion happens without any specific valid reason; and
Lastly, even the court does not have any valid reason to deny the restitution after hearing both the parties.

Scope of restitution of conjugal rights

There have been numerous decisions of the courts in this aspect. Those, along with Section 9 of the Act indicate the following scope of restitution of conjugal rights in Hindu marriages:

It protects the right of cohabitation when one party abandons the other without a just cause.
Application for such restitution can be filed at the place where the marriage was solemnised, or where either of the parties reside.
The decree by a court, passed under this Section, can also be enforced upon the non complying spouse of a marriage.
It grants the right to cohabit, but a decree cannot bring the parties to an emotional reconciliation in most cases.

So, the scope of applications filed for the restitution of conjugal rights is limited to physical cohabitation. The courts cannot bring the parties to create or restore an emotional connection.

Judgement of the case

After taking all arguments into consideration, the bench delivered their judgement, dismissing the present appeal by the respondent’’s wife, Kailashwati. However, the Court also emphasised that since situations like these would emerge more often in the future, It was important for the lawmakers to consider these changing times and amend the laws accordingly. The idea of a hindu marriage as presented by the sages, and the actual practicalities of living a married life in the present age, has a lot of gaps.

Rationale behind this judgement

Before reaching this judgement, the Court primarily pondered upon the existence of a weekend or an occasional marital home. It was of the view that even though this is not really a new concept, the consent of both, husband and wife is required. Here, the main issue was the unilateral desire of the wife to live separately.

Can the idea of an occasional meeting at the matrimonial home be considered at the unilateral decision of the wife?

The court pointed out that such a living arrangement was not uncommon, taking modern employment commitments into consideration. However, solely relying on the unilateral decision of the wife to stay away, even though the husband was insisting on the contrary, would lead to issues. Remember, marriage is a divine institution under the Hindu Laws, where both the parties have their set of duties. While deciding on important life matters, mutual consent and understanding between the husband and wife is really important.

While deciding and rationalising on this issue, the court did not rely on the point of view of the Hindu sages, but on the Hindu Marriage Act, whose provisions had significantly changed the idea of a marriage as an institution. According to the general principles, the idea of a matrimonial home is central to the entire marriage. Moreover, it is the only way through which the husband and wife can truly build and grow their institution. The Court relied on Lane v. Lane (1953), wherein the idea of marital status and a matrimonial home are used interchangeably and given utmost importance. Moreover, this case went on to cite Pulford v. Pulford (1923), wherein the issue of desertion in a marriage was discussed. Desertion does not just refer to physical abandonment, but also the abandonment of state of things, which includes the marital relationship and responsibilities.

On the basis of these precedents, the Court was of the view that matrimonial home, which includes the rights and companionship between the partners, is integral to the concept of marriage. In the English Common Law and Roman Law, since earlier times, importance was given to a husband’s right to consortium or matrimonial home. So, during those times, the general perspective and consensus was that the husband had the right to access the companionship and society of his wife. However, the Court also stated that with passing time, it was seen as a mutual right, which means that the wife too had the right to access the companionship and society of her husband. However, in the present case, the issue revolved around the question of whether the wife had the right to reject the husband of his right to marital bliss, particularly for the reason of her employment.

To examine this in depth, three different situations were examined:

Firstly, when the husband is already aware of such employment of the wife and agrees to marriage, does it imply his agreement to let go of his rights to claim a matrimonial home with his wife?

The Court opined negatively to this question, for the sole reason that even a working woman who agrees to marriage knows that she would have to leave her maternal residence and go to the matrimonial home. It was then emphasised that if common consent of the parties was involved, there would be no question of this sort. However, a wife or a husband cannot unilaterally claim that since they are working at different places, they can live apart. This renders the applicant’s argument invalid, as she claimed that her husband was aware of her working nature and hence, he must accept living apart from his wife, to enable her to keep working. Moreover, the Court also agreed that if the parties mutually reached an agreement that worked out for both of them, it would be completely valid and legally binding on them. However, since neither party wanted to do so, the Court did not give its final opinion on this.

Secondly, the husband may encourage his wife to work in public service or the private sector, after marriage. By doing this, does he again abandon his right to the society of his wife?

Even in this situation the Court opined negatively. There is no doubt that a financial situation or need may require both the spouses to work. Purely because of this need, the wife leaving the solace of a matrimonial home permanently, does not seem right or supportable, either in principle or in authority. In this situation too, the express agreement of both parties can work. However, despite that, the view of the Court was that just by wilfully agreeing to gainful employment of the wife after marriage, the husband does not inherently give up his right to matrimonial companionship.

The third and final situation refers to when the wife goes against the husband’s wishes, and takes up employment away from the matrimonial home.

Obviously, this situation is held as unreasonable and unilateral. Moreover, the Court also stated that a situation such as this constitutes a direct violation of the mutual duty of husband and wife to live together and build a life together.

As evident from these three different situations, the Court was of the view that just by agreeing to gainful employment of the wife, the husband does not give up his right to the companionship and society of his wife. However, this is applicable, subject to two conditions:

The husband must be established enough to have a matrimonial home, where he can easily maintain his wife and provide a life with dignity; and
The husband, while doing so, must act in good faith and not just to spite the wife of his authority or power.

So, when a husband demands his wife to return to the matrimonial home with malafide intentions, like committing a matrimonial offence, the wife has reasonable cause to refuse returning to the matrimonial home with her husband.

Based on these conditions and the general principles, the Court opined that the wife does not hold the right to unilaterally withdraw from the companionship of her husband. The arguments given by the wife, such as the husband being aware, and of her not denying access to her husband as and when possible, were construed as unreasonable.

Locus of the matrimonial house

The issue of the locus, that is, location of the matrimonial home was also in question. The appellant was of the view that in the present times, the husband did not have the sole right to decide on the final matrimonial home. With her qualifications and employment, she had an equal right to make this decision. Moreover, in the present case, the wife was also open to her husband coming and living with her at her place of employment. If she was more financially capable than the husband, it would be more reasonable for him to come and live with her at the place of her choice.

Now that it had been decided that moving away unilaterally without the consent of the partner was wrong, it was important to discuss the location of the matrimonial home.

To handle this issue properly, the rules of Hindu Law and other general principles need to be examined. However, two factors were integral to the decision:

In majority of the civilisations, under marriage laws, a duty is imposed on the husband to maintain the wife and children from the wedlock. Whereas, there is no such duty on a wife, financially; and
Being the “wage earner” of a family, the husband usually lives near his place of work.

Based on these two factors, the husband usually had a greater financial responsibility towards the family. Hence, to discharge his legal duties as a breadwinner, he should get the right to choose the home from which he can effectively discharge these legal duties.

The Court examined the American legal principles first. In American laws, it was well settled that the husband had the right to choose and establish the matrimonial home at the place of his choice. Whereas, the wife has the duty to accept this decision, and to follow him. Hence, the husband must take such a decision in good faith, without any malafide intentions. This is both a privilege and responsibility.

However, the English legal principles and authorities are not consistent with this view. Differing views have been provided in different situations. For example, in the case of Mansey v Mansey (1940), it was held that if the wife reaches a position superior to that of the husband, wherein she can maintain him, she can choose the place of matrimonial home. However, in cases wherein she has not reached such a stage, she would have to agree with the husband’s decision on the matrimonial home. It was also held that if she does not agree to the location of the matrimonial home, it is regarded as a breach of the matrimonial obligation and she will be deemed to have deserted him.

To reach a conclusion in such sensitive issues, it is difficult to find a unanimous standing of courts. This Court then relied on the case of Dunn v. Dunn (1949). It was pointed out that if the issue of deciding the locus of matrimonial home fell upon the husband, it was not a question of law, that the wife had no legal burden to justify her refusal. Rather, it was a question of principles, which in those times stated that the husband as the bread winner had the right to live near his workplace. Moreover, it was pointed out that in the modern days, it is not a common practice. Hence, the parties, that is, husband and wife should take a mutual decision for their, as well their children’s wellbeing.

After careful consideration of the views in these cases, the Court in the present case of Kailashwati vs. Ayudhia Parkash, firstly agreed that the decision of choosing the location of a matrimonial home would ideally fall upon the three parties- husband, wife and children. The decisions must be a give and take, and reasonable. However, the Court also realised that this would not be possible in a majority of the cases. It even stated that if something like this was possible, there would be no need for a rule of law in these matters. However, the present situation was different. Hence, the law has to be invoked, and must decide on behalf of the parties, by laying down a rule of conduct that is reasonable and works best for a peaceful marriage.

Moreover, emphasising the need for a basic rule of law in this matter, the Court even pointed out that everytime, if the trial courts decided only on the basis of what the parties have to say, iit would merely increase the number of litigations. Hence, it is very important to determine a fixed answer on this legal issue. When the spouses of a marriage are not considerate and reasonable towards each other, every time, the trial court would have to provide someone the balance of power, either the wife or husband. After examining several judgments and differing point of views, the Court held that it was vain to follow up with the contradictory views in the English judgments.

As a result, the Court concluded that on the basis of general principles, as long as the husband is acting with bona fide intentions, he is entitled by the law to decide on the final location of the matrimonial home. While this is a general perspective, for specific cases under the Hindu Law, the decision also revolves around the primary duty of the husband to maintain his wife and children.

In India, under Section 125 of the Criminal Procedure Code, 1973, in case a husband possessing sufficient means, fails to comply with his obligation to maintain his family, the court may order him to provide a certain sum of regular maintenance and go on to punish him with imprisonment if he refuses to do so. Coming to specific Hindu Laws, the Court relied on Section 18 of the Hindu Adoption and Maintenance Act, 1956. According to this Section, a Hindu wife is entitled to the protection of maintenance by her husband, during the course of her lifetime. Moreover, it also provided that the wife could live separately and still claim maintenance if the husband is guilty of abandoning her or deserting her, or wilfully neglecting her without any reasonable cause.

From these provisions, it is evident that under the Hindu laws, the wife has a general right to be maintained by her husband, throughout her life. Moreover, in certain cases, she also has the right to live separately and still claim maintenance. This, however, is subjected to the condition that she is chaste and follows the Hindu religion.

Additionally, Section 20 of the Hindu Adoption and Maintenance Act was also referred to, wherein all Hindus have the responsibility to maintain their minor legitimate or illegitimate children and their aged and infirm parents. Here the duty is imposed on a Hindu, not on just a husband. Hence, even a woman has the responsibility to maintain her parents and children. There are other provisions under Hindu Adoption and Maintenance Act, such as Section 22, wherein the heir of a Hindu deceased must take responsibility for maintaining the deceased person’s dependents, and Section 19, wherein provision is made for the maintenance of a widowed Hindu daughter-in-law. Maintenance is defined under Section 3(b), as providing food, clothing, shelter, education and medical attendance.

Thus, as per the various provisions under the Hindu Law, the major duty of maintaining their spouse is directly imposed on the husband. These are his legal and general duties, that arise from the mere existence of the relationship. On the contrary, even if the wife is financially sufficient and prosperous, she has no obligation to maintain her husband or the family.

Taking these responsibilities of a husband into consideration, the question that arises is whether he gets to have a say in choosing the place of their home, where he would fulfil these obligations and duties? Even if this issue is set aside for a moment, what would happen to the kids born in such a marriage? How would a child grow in an environment where the wife is unilaterally allowed and entitled to live separately, away from the matrimonial home? In such a case, wherein the wife and children are living separately, against the husband’s wishes, would he still be obliged to maintain them? The court came up with a plain and simple answer to these questions and provisions. The duty of maintaining the wife and children, comes with the ancillary right to choose the location of the matrimonial home. In a general perspective, this right is provided to ensure that the benefit and burden concurs.

The Court further relied on the general rules of the Hindu Law, wherein the wife has a primary obligation towards her husband, to remain under his roof and protection, while the husband has the duty of maintaining and protecting his wife. The Court then cited the judgement of Shrimati Tirath Kaur vs. Kirpal Singh (1962), wherein the facts were identical to the present case of Kailashwati vs. Ayudhia Parkash (1977). In that case, the wife’s arguments were repealed and it was observed that there was no legal principle or rule that would justify the wife to be allowed to withdraw herself from the presence and society of her husband. However, lateron, this order was modified substantially, by a letter patent bench, and it was decided that the parties must mutually decide to change the place of work and reside in a common matrimonial home. Nevertheless, the Court was still of the view that this judgement did not lay down a proposition of the law, that the wife could, at her own will, separate herself from the matrimonial home of her husband. Besides, the proposition that a wife is entitled to live separately, simply because her workplace is at a different location, is equivalent to cutting off the roots of marriage as an institution. Hence, this Bench overruled the letters patent judgement of the cited case.

The Court then cited the case of Surrinder Kaur v. Gurdeep Singh (1972), wherein again, identical facts were presented before the court. It was held that the wife has a duty of attendance, obedience, and veneration towards the husband. Moreover, she is obligated to live where he chooses to. Similarly, in the case of Gaya Prasad v. Mst. Bhagwati (1965), it was held that merely because the husband has a low income, and if the wife is allowed to live and work at a different place, it can augment the family income as a whole, does not become a sufficient reason to deny the wife’s access to her husband. It was even pointed out that nothing in the entire Hindu Law accepts any such situation or warrants for its adoption.

Additionally, the Court also relied on the judgement of Vuyyuru Pothuraju v. Vuyyuru Radha (1964), wherein it was held that all rights in a Hindu marriage need to be determined on the basis of Hindu Law. It was also apprehended that the home of a wife is the husband’s house.

However, there also exist contradictory views of a single bench judge of the Gujarat High Court, in the case of Pravinaben v. Sureshbhai Tribhovan Arva (1973). A school teacher was held to be entitled to the right of living separately for the sake of her employment and the petition for restitution of conjugal rights by the husband was dismissed. A closer look at the facts of that case presented the ill intention of the husband to get a divorce from his wife, due to which the matter was decided against him.

To conclude, this Bench observed that even under Anglo American jurisprudence, the idea of a matrimonial home lies at the centre of a marriage. From the stone age to the modern day, husband and wife look for a home to build their life together. They have their own share of responsibilities and obligations towards each other. One party unilaterally deciding to let go of their obligations or marital duties does not prove to be fair to the institution of marriage. An exception is obviously created for enhanced circumstances.

Irrespective of what the western principles allude, all aspects of the Hindu rules and principles which are primarily applicable in the case of Kailashwati v. Ayudhia Parkash (1977), state that the husband has the right to choose the matrimonial home. Under the Hindu laws, the wife also has an unequivocal duty to live with her husband, under his roof and protection. It is only in case of a misconduct that a wife can be entitled to live separately. Ordinary employment is not a sufficient ground to live in different places. The idea behind Section 9 of the Hindu Marriage Act, is to provide an immediate remedy to the party of a matrimonial relationship, that has been wronged by the other. Moreover, the Court also pointed out that despite these provisions, if two parties of a marriage cannot reach an amicable decision even with respect to a simple question of the location of their home, the marriage has seemingly reached a point of no resolve. Hence, in such a case, it would be more in the interest of the parties, to end the marriage, than to approach the courts and then be obligated to live together unhappily thereafter.

Thus, based on the pertinent facts that the wife intentionally seeked transfer away from the matrimonial home, continued living there for a period of 12 years, and refused to live with her husband for more than 2 or 3 days at a stretch, even though he is willing to and capable of taking care of her, it was held that the decision of the lower courts were valid and the present appeal was dismissed.

Analysis of Kailashwati vs. Ayodhia Prakash (1977)

At a glance, a decision like this looks ancient and against the empowerment of women. However, when we delve deep into the facts and issues of the case, it becomes evident why the Court came up with this decision.

In India, and in most civilised societies, marriage is seen as a sacred institution, it imposes a particular set of rights and responsibilities on both, the husband and the wife. In the 70s, when this case took place, women empowerment was nowhere near where it is today. With that said, there were still plenty of women that were breaking the barriers and opting to work, grow and study. One such woman was Kailashwati, and from her point of view it is not wrong to have the desire to not move and leave her job. However, as per the Hindu law principles and rules that were applicable in those days, it was her duty to stay under the protection of her husband, unless there was a reasonable cause behind why she couldn’t. In this case, her right to work and her financial freedom were not considered as a reasonable enough cause to allow her to live away at her sole discretion.

Besides, when you look at it, in a marriage, both the parties must have an understanding. They must think of each other’s situation and make decisions accordingly. However, in this case, neither party was ready to do so. It is vital to not overlook the fact that the husband had remained away from his wife for a period of 12 years, which were also the best years of his life. So, even when the statute allows them to seek the restitution of conjugal rights, at that time, it would have been unfair to the husband in deciding anything against it.

Moreover, in the ancient Hindu laws, the duty to maintain the family and wife is solely on the husband. In this case, the husband was even readily agreeing to do so. Even with these facts, the desire of the wife to carry on employment cannot be just overlooked. Hence, it would have been much better to seek a judicial separation or divorce for a marriage of such sorts. However, the parties instead decided to go the other way. This left no choice but for the court to allow the restitution of conjugal rights appeal from the aggrieved husband.

Conclusion

In conclusion, the application for restitution of conjugal rights can be made by either party to a marriage in case they are not granted rights of marriage from the other. Moreover, as applicable then, it was also the duty of the court to grant the application, unless there was a reasonable cause. In the case of Kailashwati v. Ayudhia Parkash (1977), there was no such reasonable cause except her desire to work. However, the nature of employment was ordinary, and her actions were held as not living up to the matrimonial duties towards her husband, Hence, her appeal was dismissed.

Since then, with the developing times, the constitutional validity of Section 9 of the Hindu Marriage Act, has been challenged several times, and the court has upheld its validity. It is a statutory remedy that works in favour of either party of a marriage that faces an unjust separation from the society of their partners.

Frequently Asked Questions (FAQs)

Is it solely the husband’s duty to maintain his wife?

Under the Hindu principles and laws, the husband has the duty to protect and maintain his wife and minor children, while the wife does not.

Can a wife unilaterally move away from the matrimonial home?

In case of a material breach of matrimony, when the wife has a reasonable cause to move and live separately, she can be entitled to move away. However, without a reasonable cause, it is her duty to live with her husband, under his roof and protection.

Who has the power or right to decide the locus of matrimonial home in a marriage?

In an ideal world, it is a mutual decision of the husband, wife and the children. However, in the practical world, where the husband is imposed with the legal duties of maintaining the family, he is also given the right to do so from the place of his choice and comfort.

In the case of Kailashwati v. Ayudhia Parkash, did the husband give up his right to the companionship of his wife by agreeing to marry a working woman in those times?

No, it was held that merely knowing she was working was not sufficient cause to allow her entitlement to live separately without a just cause.

Is Section 9 of the Hindu Marriage Act valid?

Yes, the section provides for the restitution of conjugal rights and provides an immediate remedy when a party to the marriage has been unjustly deserted, without any reasonable cause.

What happens when a wife leaves her husband?

When a wife leaves her husband without any reasonable cause in a Hindu Marriage, the husband can file a petition for restitution of conjugal rights against the wife.

What happens when a husband leaves his wife?

If a husband leaves his wife without any sufficient cause in a Hindu Marriage, the wife can file a petition for restitution of conjugal rights against the husband.

References

Central Public Information Officer, Supreme Court v. Subash Chandra Agarwal (2019)

By

Diva Rai

-

July 2, 2024

0

supreme-court-1200-4 — Image source - https://bit.ly/378Uq6X

This article was written by Prayrana Singh and further updated by Monesh Mehndiratta. The present article explains in detail the case of the Central Public Information Officer, Supreme Court v. Subhash Chandra Agarwal (2019). It provides the brief facts of the case, the issues involved therein, the judgement of the court along with different opinions of judges, the law applied and a critical analysis of the case. It also explains in brief the importance of the Right to Information Act, 2005 and the relation of the right to know to other fundamental rights by explaining the landmark judgements in this regard.

This article has been published by Shashwat Kaushik.

Table of Contents

Introduction

Do you know that you can question the government, its functionaries and other public authorities about their actions?

Do you know that you can make them accountable for their actions and decisions?

Yes, you read it right. You can do so.

This is because you have a ‘right to know’ that has been duly recognised by the Constitution and even separate legislation has been enacted in this regard. The right to know is one of the tools to foster transparency and accountability in the country. Since the enactment of the Right to Information Act, 2005 (hereinafter referred to as ‘the Act’ or the ‘RTI Act, 2005′), the right has been widely recognised and used by citizens, as the Act provides a proper mechanism and procedure to seek information from the authorities. However, it also provides certain information as an exemption that cannot be requested by anyone.

The present case of the Central Public Information Officer, Supreme Court v. Subash Chandra Agarwal (2019) is one such case. The respondent in this case sought certain information and the appellant denied the same, against which an appeal was preferred, whereby the appellants were directed to furnish the required information. The present appeal has been presented by the appellant against such a direction. The brief facts have been provided below in the article, along with issues, the judgement of the court consisting of the decisions and observations made by the court, and the concurrent view. The article also explains the law applied and provides a critical analysis. It further goes on to explain various landmark judgements on the Right to Information and other fundamental rights.

Antecedents to the RTI Act

India, being a democratic country, practises universal adult franchise. One of the most important features of democracy is that people rule themselves. They elect their representatives, who then form the government for the smooth functioning of the country. The major power lies with the citizens and so they must be aware of the policies and other necessary information. In order to empower citizens and bring transparency, citizens have been given the ‘right to know’.

The report of the Second Administration Reforms Commission in 2007 revealed that the right to information leads to good governance and further provided four essential parameters of good governance:

Transparency
Accountability
Predictability
Participation

So here, transparency and predictability are deeply interrelated and directly proportional to one another in the sense that when transparency increases, the skills of the people to predict will also increase. Transparency and accountability can increase the availability of government activities for public security. Transparency can only be maintained when the activities of the government are known to people and they can question them for their actions. A government should be such that it is open to the public and constructive for development.

Aristotle, in his scientific work called “Metaphysics,” started his work by saying, “All men by nature desire to know”. With this, Aristotle tried to explain that human beings are inquisitive by nature. This is the major factor that helps humans grow. This is the concept of the ‘right to know’. This includes the right to freedom of opinion and expression as well. Another philosopher switched to the transparency aspect. He said that the government’s actions and activities should be open to the public. Both the philosophers provided a similar notion that democratic government is for the people, of the people and by the people and no information available to the public officer should be kept behind the curtains.

Ideas recognized for the extension of the right to participation led to the enhancement of various judgements and laws globally, which have led us to where we are now. The right to know is not an expressive right that is guaranteed under the Constitution. It is nowhere mentioned in any law book. The liberal interpretation of the right by the judges of the honourable Supreme Court has helped in making it a fundamental right of the citizens.

Details of the case

Name of the case: Central Public Information Officer, Supreme Court v. Subhash Chandra Agarwal

Citation: 2019 (16) SCALE 40, 2019 SCC OnLine SC 1459

Name of the Appellant: Central Public Information Officer, Supreme Court of India.

Name of the respondent: Subhash Chandra Agarwal

Name of the court: Supreme Court of India

Bench: Chief Justice Ranjan Gogoi, Justice N.V. Ramana, Justice Dr. D.Y. Chandrachud, Justice Deepak Gupta and Justice Sanjiv Khanna.

Date of decision: November 13 November 2019.

Laws involved: Articles 12, 19, 20, 21, 25 and 124 of the Indian Constitution and Sections 8 & 11 of the Right to Information Act, 2005.

Brief facts of the case

The present case is a combination of three appeals arising from the denial of information under the RTI Act, 2005. The first appeal pertains to an application filed by the respondent under the RTI Act, seeking copies of correspondence exchanged between constitutional authorities along with file notings related to the appointment of Supreme Court judges. The appellant stated that the Registry of the Supreme Court does not deal with the appointment of judges and that these are done by the President of India in cases of higher judiciary. The first appeal was rejected by the first appellate authority on the ground that the information sought was not within the ambit of Sections 2(f) and 2(j) of the Act. A secondary appeal was preferred by the respondent to the Central Information Commission (CIC), whereby the appellants were directed to provide the information asked by the respondent. Aggrieved by the order of CIC, the Central Public Information Officer (hereinafter referred to as ‘CPIO’) of the Supreme Court moved to the Supreme Court and challenged the order under Article 136 of the Constitution of India.

The second appeal, known as the assets case, pertains to another application filed by the respondent. The respondent sought a copy of the resolution of Supreme Court judges, which required all the judges, be they sitting judges or future judges, to declare their assets of real estate or investments held in their names or the names of their spouses or any person dependent on them, upon assuming office, within reasonable time. He also asked for information pertaining to assets owned by the Chief Justices of states. Half of the information related to the copy of the resolution was provided to the respondent but the latter half was denied. The denial was on the grounds that the information was not held by the registry of the Supreme Court. Another reason for the denial, as stated, was that information is in the possession of the Chief Justices of the respective High Courts of the states. The first appellate authority remanded the matter to transfer the RTI application to the High Courts under Section 6(3) of the Act. However, the CPIO declined to transfer the same, stating that the respondent was well aware of the fact that the information sought is available with the distinct public authorities. Further, the CIC held in the second appeal that the information related to the judges of the Supreme Court was available with its registry, and so the appellant is under an obligation to provide the information under the RTI Act unless it is exempted by law. Aggrieved by the order, the appellant presented a writ petition before the Delhi High Court. The single judge of the High Court held that the declaration of assets by the judges comes under the ambit of ‘information’ under the Act. It was further held that:

The judges of the Supreme Court hold independent offices.
There is no hierarchy in the judicial functions.
Such information is not held in a fiduciary capacity by the Chief Justices of India.
Information is not exempted under Section 8(1)(e) of the Act.

The decision was later upheld by the full bench in a letter patent appeal. The same has been challenged by the appellant in the present appeal. The third and last appeal is also called the undue influence case. It is related to an RTI application filed by the respondent on the basis of a newspaper report. The application was made to seek information about the correspondence exchanged with the Chief Justices of India regarding the Union Minister, who has been accused of approaching a judge of the Madras High Court in order to influence a judicial decision. The respondent also asked for the name of the Union Minister, their lawyer and the steps taken against them for their actions. The appellant rejected the application on the ground that no such information was available with the registry of the Supreme Court. In the second appeal, the CIC directed the appellant to provide the information sought except for the recourse taken to the in-house procedure. This decision of the CIC has been further challenged by the Supreme Court in the present appeal.

Issues involved in the case

Whether the information sought can be prohibited due to independence of the judiciary.
Whether the information sought amounts to interference in the functioning of the judiciary.
Whether the information sought by the respondent will be furnished or not.
Whether the information sought falls within the exemptions under Section 8(1)(j) of the Act.

Contentions of the parties

Arguments presented by appellant

It was contested by the appellants that the information sought and its disclosure would impede the independence of judges. This is because it failed to recognise the unique position of the judiciary as provided by the Constitution, necessitating that the judges not be subjected to any litigative public debate. Such insulation is constitutional, deliberate and essential for the effective functioning of the institution. The appellants further argued that the right to information is not an unfettered right but a right available within the framework of the RTI Act, indicating that the right is subjected to certain conditions, exclusions, and restrictions given in the Second Schedule and Sections 8 to 11 of the RTI Act.

It was argued that the information related to assets owned amounts to personal information and has nothing to do with the public interest, thus being exempt under Section 8(1)(j) of the Act. Similarly, information related to prospective candidates considered for appointments in the judiciary is personal information whose disclosure would lead to an unnecessary invasion of a person’s privacy. It was further contested that the information related to assets owned by judges is voluntarily declared by them to the Chief Justices of India and comes within the fiduciary capacity. With respect to the correspondence between the office of the Chief Justice of India and constitutional functionaries, it was contested that these were made on trust and confidence. Any information related to the appointment of judges is shared with the functionaries in a fiduciary capacity. This makes the information an exemption under Section 8(1)(j) of the Act.

Arguments presented by respondent

The respondent, on the other hand, argued that the disclosure of any information sought by him does not undermine the independence of the judiciary and relied on the State of U.P. v. Raj Narain (1975) wherein the Apex Court held that people have the right to know about the actions and activities of governmental agencies and that it ensures transparency and accountability. The respondent contended that such disclosure would lead to openness and transparency, which would further result in securing the independence of the judiciary by placing frivolous activities attempting to influence the independence of the judiciary in the public domain. It was further argued that it is the legitimate and constitutional right of the citizens to seek information, thus pointing out that it is disclosure and not secrecy that enhances the independence of the judiciary. Regarding the nature of the information sought, it was argued that the disclosure would benefit the interests of the larger public, which outweighs the exemption given under the Act. Further, it was contested that in cases where any personal information is involved, the same can be decided and dealt with depending on the case.

There exists no fiduciary relationship between the Chief Justice and other judges or among the constitutional functionaries that could prevent the disclosure of the information sought. The respondents relied on the case of Central Board of Secondary Education v. Aditya Bandopadhyay (2011), wherein the Court held that the Act is intended to secure transparency and accountability in the working of public officials. Another case was Reserve Bank of India v. Jayantilal N. Mistry (2015), wherein it was observed that any information that is in the public interest must be disclosed. It was argued in the case that it is the duty of public servants to act for the benefit of the public and not favour any other public servant. This also means that the Chief Justice and other functionaries are expected to perform their duties and not act in a fiduciary manner with anyone other than the public. Further, if there is any fiduciary relationship, the information can still be disclosed if it is in the public interest to do so. The respondents also contended that no exemption under the Act can be made or invoked on the basis of confidentiality and candour.

Judgement of the court

Obiter dicta

The honourable Supreme Court held that the information pertaining to assets owned by judges neither amounts to personal information nor invades the right to privacy and thus, the judgement of the Delhi High Court in this regard was upheld. It was further held that the disclosure of such information would not infringe the right to privacy and the rule of fiduciary relationship is not applicable in this case. The other two appeals were remanded to the CPIO of the Supreme Court with a direction to examine the information sought according to the principles set forth in the present judgement. It was further held that the information sought under these appeals falls within the ambit of ‘third party information’, which requires notice to be issued to such parties before passing a final order and so the procedure prescribed under Section 11 must be followed.

Ratio decidendi

In order to arrive at a decision, the honourable Supreme Court in this case considered whether the Supreme Court and the Chief Justice of India are different public authorities. It was observed that the Supreme Court is a public authority under Section 2(h) of the Act, while the Chief Justice of India is a competent authority. It was further observed that the Supreme Court, being a public authority, includes the offices of the Chief Justice of India and other judges; hence, the two aren’t separate but a part and parcel of the Court as a body, authority and institution. This would also apply in the case of high courts and the judges therein.

It was also observed that when any information is under the control of a public authority, the same must be furnished to the seeker under the Act. This must be done even if there are certain prohibitions in any other statute in force or the Official Secrets Act, 1923. The court also mentioned that Section 22 of the RTI Act is an overriding provision that unlocks prohibitions available in any prior enactment or statute on the right of citizens to access information accessible by a public authority. The court also observed the aim and objective of the RTI Act, which is to ensure transparency and accountability to make the democratic setup in India more participatory for which the Act gives a pragmatic and practical regime in order to secure greater access to information for people. This will also help in balancing diverse interests like efficient governance, optimum use of limited fiscal operations and preserving the confidentiality of sensitive information.

About the fiduciary relationship, the court observed that the information that is available to the public authority regarding beneficiaries cannot be withheld or denied to them. Further, it was observed that such relationships must satisfy four conditions, whose emphasis is on the trust, reliance, dominant position and dependability of the beneficiary on the fiduciary, imposing responsibility on the fiduciary to act in good faith and for the benefit of the beneficiary. The court specifically observed that the relationship between the Chief Justice and judges does not amount to a fiduciary relationship but the same may arise in certain situations that have to be dealt with in accordance with the facts of the case. With respect to the right to privacy and the right to information, the court observed that someone’s absolute right to know may invade another’s privacy and breach confidentiality. Thus, there is a need to harmonise the right to know with personal privacy, confidentiality and effective governance. This is the reason the Act recognises exemptions under Sections 8 & 11. The Court further clarified that Section 11 is not procedural but substantive in nature and will be applicable when the PIO (Public Information Officer) has an intention to disclose information related to or supplied by a third party and is confidential in nature. The section requires a notice to be served to the third party by the PIO and the submissions made thereto must be considered while making a decision.

Concurrent view of judges

Justice N.V. Ramana quoted that “In the domain of human rights, the right to privacy and the right to information have to be treated as co-equals and neither can take precedence over the other; rather, a balance needs to be struck”. It was observed that the present case required a balance to be created between two fundamental rights, i.e., the right to information and the right to privacy, that are usually in conflict with each other and that the two rights are faces of the same coin. Further, it was viewed that in order to decide such cases, the authority must first ascertain whether the information sought is private and has a reasonable expectation of privacy. For this, certain factors have to be considered:

Nature of information,
Impact on private life,
Improper conduct,
Criminality,
Place where information is found,
Claimants’ attributes,
Effect on claimant
Purpose for which the information is with the publishers,
Nature and purpose of intrusion

The next step is to decide whether the disclosure of the information sought is justified by public interest. This can be done by adopting a balance test. Further, while dealing with transparency and judicial independence along with the RTI Act, it was observed that there is a need to balance all three aspects. The judiciary has been able to maintain the trust of citizens on the basis of its independence. The following factors have to be considered while assessing the public interest:

Nature of information,
Consequences of non-disclosure i.e., risks and benefits,
Types of confidential obligation,
Reasonable suspicion and beliefs of confidant,
Party seeking information,
Manner to acquire the information,
Public and private interest,
Freedom of expression and proportionality.

Justice D.Y. Chandrachud observed that the information sought by the respondent in the present case is related to:

Correspondence and file notings for appointment of judges to the Apex Court,
Declaration of assets by the judges,
Nature of disciplinary proceedings against lawyer and the judge named in the newspaper report.

While determining whether a particular piece of information is exempted under Section 8(1)(j), the following factors must be considered:

Whether the information sought engages with the right to privacy and falls under the right to information.
Specific heads of public interest favour disclosure of information and claims of specific privacy interests.
Justification for restricting the interests.
Application of the principle of proportionality in order to ensure no right has been abridged more than that required to fulfil the aim of countervailing a right.

He further stated that the birth of the collegium is related to judicial interpretation. Citizens have used their right to information to seek information related to criteria governing the selection and appointment of judges to the higher judiciary. The Honourable Justice opined that the basis for the selection and appointment of judges must be defined and placed in the public domain and that this is in the public interest. The norms of judicial appointment were reiterated as follows:

Evaluation of members of the bar and basis of such evaluation.
Criteria applied:
- Experience and nature of practice
- Domain and area of specialisation,
- Requirements of income,
- Commitment, research and academic qualification
- Social orientation is related to legal aid work.

It was stressed that the present judgement does not define standards to be used for judicial appointments but that such standards must be available in the public domain, which would ultimately promote confidence in the public interest in the judiciary and its appointments. It will further foster transparency, promote accountability, fulfil the purpose of the RTI Act, enhance public confidence and measure against extraneous considerations in the process.

Laws applied

Right to Information Act, 2005

In order to promote accountability and foster transparency in the country, the Right to Information Act, 2005, has been enacted. The Act provides a practical regime for the right to information and to secure access to information for citizens, whether withheld or under the control of public authorities. It also provides for the constitution of the Central Information Commission (CIC) and State Information Commissions (SICs). This has been done to keep citizens informed and uphold the principles of transparency and accountability. It will further help in regulating corruption and holding governments and other instrumentalities accountable for their actions in the public interest. Apart from this, it also helps in harmonising the conflict of interests with the aim of preserving the paramountcy of democracy in society.

Section 8 of the RTI Act

Section 8 of the Act provides a list of information exempt from disclosure to the public. These are:

Information affecting the sovereignty and integrity of the country; security; strategic and economic interests of the State and relations with foreign states.
Information specifically forbidden to be published by the court or tribunal and whose disclosure would amount to contempt.
Information that would result in breach of parliamentary privilege or state legislatures.
Information related to trade secrets, intellectual properties or commercial confidence could harm the competitive position of third parties unless it is in the public interest to disclose such information.
Information is available due to the fiduciary relationship of a person, unless it is in the public interest to disclose such information.
Information received from any foreign country is based on confidence.
Such information whose disclosure would endanger life or physical safety of a person.
Information impeds investigation, apprehension or prosecution of offenders.
Cabinet papers, which include records of deliberations of council, secretaries and other officers, are provided that they will be made available in the public domain only after the decision is taken and matter is complete.
Information falling under the ambit of personal information has no relation to the public interest, whose disclosure would cause invasion of a person’s privacy. The only exception is the interest of the public at large. The section also provides that any information that cannot be denied to parliament or state legislatures will not be denied to a person seeking such information.

Section 11 of the RTI Act

Section 11 pertains to information related to third parties. Section 2(n) of the Act defines ‘third party’ as a person other than a citizen who is seeking information and includes a public authority under its ambit’. Section 11 provides that when a request to furnish information related to a third party or information to be supplied by such party is received by the CPIO or State Public Information Officer (SPIO), a written notice has to be served on such party within 5 days of receipt of the request, asking such a party to make submissions whether the information is disclosed or not. However, if the information relates to trade or commercial secrets protected by law, disclosure can be done if the public interest outweighs any harm or injury to third parties.

After receiving the notice from the CPIO or SPIO, the third party must be given an opportunity to represent against the disclosure within 10 days from the date of receipt of above-mentioned notice. The CPIO or SPIO further has to decide whether the information requested will be disclosed or not within 40 days and notify the third party through a notice. The notice pertaining to the decision of the CPIO or SPIO given to the third party includes a statement that such a party can appeal against the decision under Section 19 of the Act.

Critical analysis of the case

The above mentioned case pertains to the disclosure of certain information requested by the respondent through an RTI application. At the first stage, he was denied the information due to the reasons stated above, against which he filed an appeal in which the appellant was asked to disclose the information. The appellant appealed against the order directing them to disclose the information. The honourable Apex Court in this case clarified whether the information was related to personal information, thereby falling under the exemptions given in the Act. The court explained the meaning of certain terms like ‘personal information’ and ‘fiduciary relationship’ and whether the Supreme Court and the Chief Justice of India are separate public authorities. The Supreme Court, while applying the relevant provisions, interpreted the same and clarified the grey areas regarding their meaning and when the exemptions could be applied.

The concurrent view given by Justice N.V. Ramana stressed that there is a need to create a balance between the right to know and the right to privacy, both of which are fundamental rights guaranteed by the Constitution. This is indeed correct, as the two rights are interconnected and exercising one right may lead to interference with the other right. The RTI Act has been enacted to promote and foster accountability and transparency in the country, thereby giving the public the right to ask for information pertaining to the government and other related institutions. However, it also recognises personal information as an exemption because there might be a situation where a person asking for information might interfere with the privacy of another person if such information is disclosed. Thus, there is a need to draw a line.

Another concurrent view given by Justice D.Y. Chandrachud pointed out the independence of the judiciary and its related functionaries. It was clarified that in order to maintain the public’s trust in the judiciary, it is necessary to disclose information related to judges, like their appointment, parameters, qualifications and cases, except their personal information, which has no relevance to the public interest. This will help in establishing the independence of the judiciary and gaining the confidence of the people. Apart from this, certain factors were provided in order to determine whether a particular piece of information amounts to personal information or not. The present case is a landmark, as it identified certain grey areas and clarified the same in order to remove any possible ambiguity and vagueness.

Case laws relied upon

State of U.P. v. Raj Narain (1975)

Facts of the case

In this case, a person named Raj Narain filed an election petition before the High Court of Allahabad alleging that public finances have been misused by a political party in the reelection of the Prime Minister. He also summoned the government of Uttar Pradesh in order to produce a document called the Blue Book, which contained guidelines for the protection of the Prime Minister during his or her travel. However, an official of the Home Secretary of the state claimed a privilege of non-disclosure under Section 123 of the Evidence Act, 1872. The High Court held that the blue book is not covered under the category of unpublished record and its disclosure cannot be prohibited on the ground that it is against public interest. An appeal was filed against the decision of the High Court in the Apex Court by the Government of U.P. in the present case.

Issues involved in the case

Whether the production of the blue books and information sought in the present case is against the public interest.

Judgement of the court

The Supreme Court held that the rule of non-disclosure of records relating to the affairs of the state is of public concern and the same has to be applied. The court held that the courts can determine the impact of the disclosure of information on the public and so the High Court was directed to inspect whether the disclosure of Blue Book is injurious to public interest or not. For this, affidavits have to be filed by the concerned authorities. While deciding whether the book is a published or unpublished record, the court held that it cannot be considered a published government record merely because some of its parts have been disclosed, and so the fact that it contains any confidential information has to be taken into consideration.

S.P. Gupta v. President of India & Ors. (1981)

Facts of the case

This case pertains to several writ petitions filed by lawyers and practitioners in 1981 against the order of the government regarding non-appointment of two judges. One of such petitions was filed by S.P. Gupta, the then Attorney in the High Court of Allahabad, in the Apex Court against the appointment of three additional judges in the High Court. However, the validity of these petitions was challenged by an advocate from the Ministry of Law and Justice, stating that no person has been harmed in any way because of the order of the government and that the appointment has been done for a short duration. Out of many issues, one pertained to the disclosure of information.

Issues involved in the case

Whether the correspondence exchanged between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India will be disclosed or not?

Judgement of the case

The court rejected the arguments of respondents regarding the disclosure and held that if the disclosure negatively affects the public interest and is contrary to public policy, then only it must be withheld. If the disclosure is in the public interest, there is no reason to deny the information. The court further emphasised the obligation of the government to be answerable to the people for its actions and to promote accountability and transparency in its functioning. This is also related to Article 19 of the Constitution of India, which states that transparency and accountability are essential for democracy, so people must have access to information. However, if the information relates to national security and integrity or harms the public interest, it must not be disclosed. The court held that the correspondence in the present case did not fall under the ambit of advice and so the correspondence must be disclosed as it is in the public interest.

Thalappalam Ser. Coop. Bank Ltd. & Ors. v. State of Kerala & Ors. (2013)

Facts of the case

In this case, a person filed an application seeking information related to the bank accounts of some members of society, which was denied. A complaint was filed by the applicant with the State Information Officer of Kerala. The society informed me that the information sought by the applicant was confidential in nature, had no relation to public activity and was held by the society in a fiduciary capacity. The State Information Commission (SIC) held that the society violated Section 7 of the RTI Act, 2005. The order of the State Information Commission(SIC) was challenged before the single judge of the High Court by the cooperative society through a writ petition, in which it was held that the cooperative societies are public authorities under the RTI Act. The division bench held that it was a matter of fact, while the full bench answered it in the affirmative.

Issues involved in the case

Whether a cooperative society established or registered under the Kerala Cooperative Societies Act, 1969, falls within the definition and category of ‘Public Authority’ under the RTI Act, 2005,.

Judgement of the court

The Apex Court in this case held that cooperative societies are not public authorities under the RTI Act, 2005. In order to determine the issue at hand, the court analysed whether the society falls within the ambit of ‘state’ under Article 12 of the Constitution and held that the societies do not come under the ambit of ‘state’ and further observed that a body does not come within the definition of public authority merely because it is regulated by a statute. The court in this case also tried to create a balance between the right to information and the right to privacy. It was held that if any information sought falls within the personal information category and has no relation to the public interest, the public authority or officer is not under an obligation to disclose such information.

Conclusion

The RTI Act of 2005 has provided one of the most powerful weapons to the citizens of the country. It empowered people by acknowledging their right to know and giving them appropriate opportunities to seek information from the government, its functionaries and other authorities. This further makes them accountable for their actions, leading to responsible governance, which is an element of a democratic society. The right to know has been embedded in Articles 19 and 21 of the Constitution. However, separate legislation has helped improve the situation by providing proper mechanisms and procedures to seek information and approach the appropriate authorities in case of any dispute.

The present case, by setting a landmark precedent, has settled the ambiguity in terms like personal information, fiduciary relationships, public authorities, etc. It has also provided certain factors that can be used to determine whether a piece of information amounts to personal information that can be referred to in future cases. Even though this separate legislation is in place, how many people are aware of their right to know and how many are using this legislation to seek information is a question. There is a need for every citizen to ask for information wherever required in order to hold the government and its functionaries accountable. This will also help in building a transparent relationship between the government and the citizens, promoting the principles of democracy. .

Frequently Asked Questions (FAQs)

What is the time limit to get information under the RTI Act, 2005?

The usual time period within which the information has to be supplied to the applicant is 30 days. However, if the information is related to the life or liberty of a person, it has to be supplied within 48 days.

What are the penalties for non-compliance with the RTI Act, 2005?

Section 20 of the Act specifies penalties for non-compliance with the Act. It provides a penalty for any information that has been malafidely denied to the applicant without any reasonable ground. The penalty for the same is Rs. 250 per day until the information is furnished and the penalty must not exceed Rs. 25,000. It further provides that if the PIO, CPIO or SPIO is at fault, disciplinary action can be taken against them.

Can RTI be presented as evidence in Court?

Yes, it can be presented as secondary evidence in court as provided by Section 63 of the Evidence Act, 1872. The section provides that secondary evidence includes:

Certified copies,
Copies of the original, made by mechanical process,
Copies made from the original or compared with it
Counterparts of documents against the parties who did not execute them,
Oral accounts of contents of any documents made by a person who has

What are the common mistakes a lawyer or layman makes while filing an RTI application that lead to the rejection of the application?

The government office rejects your RTI on the basis that it consumes lots of time and resources to fetch the information. Lawyers or laymen usually make two mistakes:

The first is that you need to know the proper address of the right office, from whom you want to actually seek the information.
Second, keep your RTI as compressed as possible. It should contain specific points or questions but no words like ‘why’ or ‘what’.

References

When does a Private body become a Public authority under the RTI Act?, 3.1 JCLJ (2022) 1349.
The Right to Information Act and Challenges ensuring Transparency and Participation, 4.2 JCLJ (2023) 843.
A Decade of “The Right to Information Act, 2005” – Critical Exploration of the Scope and Impact of the Act, CNLU LJ (6) [2016-17] 200.
https://www.scconline.com/blog/post/2019/11/13/breaking-office-of-cji-comes-under-the-purview-of-rti-sc/
https://www.scribd.com/document/250726001/Registrar-Supreme-Court-v-Subhash-Chandra-Agarwal
https://www.thehindu.com/opinion/op-ed/is-the-rti-act-fulfilling-its-purpose/article66266153.ece
https://docs.manupatra.in/newsline/articles/Upload/AC9CD2C7-B8AD-4C5A-B910-3751BFE5CB28.pdf
https://www.scconline.com/blog/post/2023/05/09/latest-judgments-of-supreme-court-and-high-courts-on-right-to-information-act/
https://theamikusqriae.com/central-public-information-officer-supreme-court-of-india-v-subhash-chandra-agarwal/
https://www.scribd.com/presentation/437389763/sp-gupta-v-union-of-india
https://www.barandbench.com/columns/supreme-court-india-67-years
https://www.scconline.com/blog/post/2022/01/18/a-walk-down-the-memory-lane-on-sp-guptas-senior-advocate-90th-birthday/
https://academic.oup.com/book/33450/chapter-abstract/287720221?redirectedFrom=fulltext

Phishing and pharming : a general comparison

By

Vanshika Kapoor

-

July 1, 2024

0

This article has been written by Fathima Roshan 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

In today’s world, cyberattacks have become unexceptional and at some point, in our lives, we are all targeted by online scams. Recent statistics show that around 29,530,829,012 known records have been breached so far in 4,645 publicly disclosed incidents, which makes us wonder whether we have also fallen victim to any of the digital attacks. This article explores two prevalent cyberattacks, their distinctions, and how to safeguard ourselves from phishing and pharming cyber-attacks.

The words Phishing and Pharming sound similar but the methods they use to steal the user’s sensitive personal data and money are different from one another. The similarity between them is their unlawful motive, or, in another way, we can say that both these cyber-attacks attempt to steal users’ personal credential information. Most of the time, people fall under the hackers’ ambush because of the social engineering tricks they use on the users to deceive them. The chance of falling under the hacker’s trap is sky high so we must educate ourselves and the people around us.

Phishing attack

Phishing is the most common type of cyber-attack that targets users through various electronic communication channels like emails, messages, or phone calls to trick the victims into revealing confidential information. According to the FBI, phishing was recorded as a common form of cyber-attack in 2020, and it has doubled over the years. Scammers are often successful at phishing because they manipulate people to give up their sensitive personal data. One simple example of phishing is bank fraud, where the hacker pretends to be an authorised person from the bank and tries to steal the personal information of the user.

Types of phishing attacks

Here are some common types of phishing attacks:

Spear-phishing: In this targeted attack, the attacker focuses on a specific individual within an organisation. They gather information about the victim (such as name, position, and contact details) and then send personal messages to steal login credentials.
Vishing (voice phishing): Vishing is concerned with voice communication that occurs over the phone. The attacker pretends to be a trusted person or organisation to extract information.
Email phishing: In email phishing, the attacker sends seemingly legitimate emails designed to trick recipients into providing sensitive information.
HTTPS phishing: Attackers send victims emails containing links to fake websites. These sites aim to deceive users into entering private information.
Pop-up phishing: Pop-up windows appear on legitimate websites, urging users to update software or provide personal details. These pop-ups are often malicious and can lead to data theft

Most famous phishing attack

Now let us take a look at the most famous phishing attack that caught people’s attention around the globe:

NotPetya attack

In 2017, the ransomware attack happened through e-mail attachments. The attack originated in Ukraine. Numerous organisations across the globe suffered losses of over $10 billion.

Hillary Clinton’s Campaign

In 2016, Russian hackers known as Fancy Bear targeted Hillary Clinton’s campaign to influence the US election, which resulted in the release of private e-mail and sensitive campaign information.

Facebook and Google

In 2015, Facebook and Google got tricked by a phishing campaign, which resulted in a large payment to a hacker named Evaldas Rimasauskas and his team. The hackers sent fake invoices to Facebook and Google employees pretending to be Quanta (a Taiwan-based company that does business for Google and Facebook), which resulted in transferring more than $100 million in transactions.

Preventing phishing attacks

These scams show how easily people get manipulated by hackers, which is a serious threat to our society. To escape from phishing attacks, every individual must take the following precautions:

Be careful while opening links from unknown sources, as they sometimes appear to be legitimate and can easily hack users’ credentials or sensitive information.
Always check the sender’s email address, the URL of the link, and the spelling and grammar of the message. If you find any of these have mistaken, then it is a sign of a Phishing attack
Never reply to or forward phishing emails.
Always provide good security software to your computer or device and update regularly.
Use strong and different passwords for every website and account. Also, try to update the password once in a while.
Use multi-factor authentication whenever possible. This can provide additional security to your account, i.e., providing an extra PIN other than a password.
Do not share your personal or financial information with any website unless you are sure that the website is safe and trustworthy. An easy way to find out if the website is legitimate is to check for the padlock icon (the site is secured with a digital certificate) and “http” in the address bar before entering any information.
Do not fall for any offers, contests, or massive discounts that seem too good to be true. Most users fall into the trap of phishing scammers by clicking on the unauthorised link they have provided and entering their sensitive personal data.

Pharming attack

Likewise, a pharming attack is a form of cyber-attack where the methods used by the hackers to steal users’ sensitive data are more technically complex. The hackers first infect the Domain Network Server (DNS) to redirect the users to fake websites that are created by the phisher and steal the user’s identity and finances. Pharming attacks are mostly targeted in the financial sector. like banks, online payment platforms, and e-commerce sites. The users mostly fail to recognise the trap as the cyber attackers create fake websites that are identical to the original web pages.

Types of pharming attacks

Pharming attacks are primarily divided into two types. Let us take a look at these two types of pharming:

Domain-based pharming

In this type of cyber-attack, the hackers infect the DNS (Domain Name System) server. The infected DNS server redirects to the attacker-controlled IP address. This is done by changing or manipulating the DNS setting of the victim’s device. When the user tries to enter the legitimate website, it will be redirected to an unauthorised website. Most of the time, users fail to recognise the fake website; thereby, hackers steal sensitive personal data such as usernames, passwords, credit card details, and more.

Hot-based pharming (malware-based pharming)

Here, the attacker infects the user’s computer by using malware like viruses, trojans, or keyloggers. Thereafter, when the victim tries to use an authorised website, the malware alters the host file and redirects to a fake website that is controlled by the hackers. Thereby, hackers steal sensitive personal data from the user.

Famous pharming attacks

Now let us look at some of the famous pharming attacks that have taken place to understand how serious pharming can be:

Venezuelan volunteer attack

In 2019, Venezuela’s President requested volunteers to join the humanitarian aid campaign known as “Volunteers por Venezuela” that year. The volunteers were advised to sign up for the programme by registering on the original website and entering information about the volunteer’s name, telephone number, area, occupation, and other personal data on the website. The hackers published identical-looking websites that appeared with a similar domain name and were able to retrieve sensitive personal data about volunteers.

Brazilian bank incident

In 2017, some hackers rerouted the Brazilian Banking website for several hours. The customers of the bank were redirected to a fake website, which was created by hackers. As a result of that, the cyber attackers got the victim’s confidential information.

Attack targeting 50 banks

This is a famous pharming attack that occurred in 2007, where hackers targeted at least fifty banks across the U.S., Europe, and Asia. Internet banking collapsed for three days and as a result, there was a huge financial loss and reputational damage in the banking sector.

Preventing pharming attacks

Therefore, from the above real-life incidents, it is clear that we should have enough knowledge to defend ourselves from cyberpunk. The following are steps to be taken by the users to prevent pharming attacks:

Avoid clicking on links or files in suspicious emails. These may contain malware and infect your personal computer.
Look for mistakes or odd things on websites, such as wrong spelling, weird names, or no signs of security (like HTTPS or a lock icon).
Use a programme and a firewall to protect your computer from harmful software and hackers.
Update your software and system regularly to fix any problems and improve security.
Use two-step verification on websites that offer it, which makes it harder for someone to log in.
Change your router password from the one it came with to a strong and different one.
Always avoid Wi-Fi networks that are public or not safe.

Conclusion

In light of this information, it is evident that phishing and pharming are two major threats to cyberspace. Phishing uses social engineering methods to trick individuals, whereas pharming is a more technical method that traps more users at a time. The damage that can be caused after hacking can be severe for the users as well as the organisations

To safeguard ourselves, we must educate and follow security measures like regularly updating operating systems, browsers, and software updates. Being cautious and informed about the evolving new techniques can significantly reduce the risk of falling victim to phishing and pharming attacks.

iPleaders

State of Bombay and Another vs. F.N. Balsara (1951)

Introduction

Details of the case

Name of the case

Type of the case

Equivalent citations

Date of the judgement

Name of the court

Bench

Author of the judgement

Name of the Petitioner

Name of the Respondent

Relevant Laws and provisions

Background of the case

Facts of State of Bombay and Another vs. F.N. Balsara (1951)

Decision of the High Court of Bombay

Issues raised in the appeal to the Supreme Court

Arguments of the parties

Petitioners

Respondents

Laws and provisions referred to in State of Bombay and Another vs. F.N. Balsara (1951)

Constitution of India

Article 14 of the Indian Constitution

Article 19(1)(g) of the Indian Constitution

Article 32 of the Indian Constitution

Article 47 of the Indian Constitution

Article 132 of the Indian Constitution

Bombay Prohibition Act, 1949

Government of India Act, 1935

Section 297

Seventh Schedule

Issue-wise judgement of the case

Whether there were any adequate grounds in order to declare the Bombay Prohibition Act, 1949 invalid as a whole? And whether it is contravening the fundamental right enshrined under Article 19(1)(g) of the Indian Constitution?

Rationale behind the judgement

Overruling of the judgement of State of Bombay vs. FN Balsara

Analysis of the case

Incidental Doctrines to the case

Doctrine of Pith and Substance

What do you mean by the doctrine of pith and substance?

Significant features of the doctrine of pith and substance

Indian Constitution and the doctrine of pith and substance

Doctrine of Severability

Conclusion

Frequently Asked Questions (FAQs)

What is a writ of mandamus?

What is meant by the doctrine of pith and substance?

How far the provisions of the Bombay Prohibition Act, 1949 were held valid in the present case?

Under which Article of the Constitution, the genesis of the doctrine of pith and substance can be found?

Under what circumstances, the Supreme Court can exercise its appellate jurisdiction?

What is meant by the doctrine of severability?

Which case overruled the verdict that was passed in this landmark judgement of the State of Bombay v. F.N. Balsara?

References

Father Benedict vs. State of Kerala (1967)

Introduction

Details of the case

Facts of the case

Medical evidences

Issues raised

Legal aspects involved

Provisions under the Indian Evidence Act, 1872

Provision under the Code of Criminal Procedure, 1973

Motive

Circumstantial evidence

Arguments of the parties

Appellant

Respondent

Judgement in Father Benedict vs. State of Kerala (1967)

Rationale behind the judgement

First circumstance

Second and third circumstances

Fourth circumstance

Fifth and sixth Circumstances

Critical analysis of Father Benedict vs. State of Kerala (1967)

Conclusion

Frequently Asked Questions (FAQs)

What is the summary of the judgement in Father Benedict v. State of Kerala?

What is hearsay evidence?

How is the doctor’s report included as evidence?

What is the evidentiary value of circumstantial evidence?