Consumer Education and Research Society vs. Union of India & Ors. (2009)

By

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June 24, 2024

This article has been written by Navya Jain. It discusses the disqualification of a member of a parliament on account of holding an office of profit under the government, which has been in the limelight for a really long time now. The Court has resolved this conundrum not once but several times. This article also evaluates and sheds light on the various concurring opinions of the Supreme Court on what constitutes an office of profit under the government and when it can cause a member to be disqualified.

Table of Contents

Introduction

The controversies surrounding the disqualification of any Member of Parliament (hereafter referred to as “MP”) keep coming back and forth in the news very often. There are not one but several instances where an MP may have voluntarily given up their seat or have been declared to be disqualified owing to a certain condition, as enumerated in Articles 191 or 102 of the Constitution of India. Ever since 1988, a total of about 42 Members of Parliament have been removed from the Parliament using the disqualification provisions. The first person to ever be disqualified was Mr. Lalduhoma, chief of the Zoram People’s Movement, on account of anti-defection provisions. Another instance includes the resignation of Mrs. Sonia Gandhi from her Lok Sabha seat. While being a Member of Parliament, she also held the post of chairperson of the National Advisory Council, which posed a threat to her political career. Therefore, she voluntarily gave her resignation as a member. A similar instance again came across the news when former Chief Minister of Bihar, Shri Lalu Prasad Yadav, was disqualified from Lok Sabha on account of his conviction in the fodder scam. Yet another instance includes the disqualification of Jharkhand Mukti Morcha leader Shibhu Soren in 2001 for holding an office of profit while sitting as a MP. Holding an “office of profit” is one such ground for disqualifying an MP. Let us understand this concept better with a detailed analysis of the judgement at hand.

Background of the case

It is a well-known fact that the Indian Constitution is a bag of borrowed Articles from various sources. The legislators delved into the Constitutions of several nations to formulate what we call today the Indian Constitution. Most of the political features, such as a bicameral parliament, the President as nominal head, speaker of the Lok Sabha, writ jurisdiction, position of a Prime Minister, etc., have been borrowed from the United Kingdom. Similarly, the concept of “office of profit” is not original to the Indian jurisdiction. Just like several borrowed features enshrined in the Constitution, the feature of “office of profit” also came to be borrowed from the UK jurisdiction. The concept of “office of profit” originated from the Succession to the Crown Act, 1707. It was first observed in this Act that any person holding any office or a place of profit under the aegis of the Crown was considered to be disqualified to contest or sit as a member of any House. This Act was later replaced by the House of Commons Disqualification Act, 1957. The whole objective behind the introduction of such a provision was to ensure that the members of parliament did not succumb to monetary advantages and compromise their allegiance to the public. The endeavour was to enable the members of parliament to perform their duty fearlessly without having to worry about any kind of pressure or conflict of interest in any form. With that thought in mind, the Indian constitutional framers decided to incorporate this provision in the Constitution in the form of Articles 102 and 191.

At the time of enactment of the Constitution of India, the bare test of Article 102 manifested that any person (i.e. a Union or state minister) holding an office of profit would be disqualified to become a member of parliament. Later, the legislators realised that the bare text failed to cover the deputy ministers under its ambit. Therefore, in order to rectify this error, the legislators proposed and considered formulation of Parliament (Prevention of Disqualification) Act, 1950. This was later followed by the Parliament (Prevention of Disqualification) Act, 1951 whereby Section 2 enumerated certain offices which were never deemed to be disqualified for the purpose of holding such offices while being the Member of Parliament. This Act was given a retrospective effect vide date 26.1.1950.

Facts of Consumer Education and Research Society vs. Union of India & Ors. (2009)

The above-mentioned writ petitions were filed under the aegis of Article 32 of the Constitution of India challenging the constitutional validity of the Parliament (Prevention of Disqualification) Amendment Act, 2006 to the Parliament (Prevention of Disqualification) Act, 1959. The aforementioned Act made amendments to the list of ‘offices of profit’, holding which would not attract any disqualification for the ministerial position in the parliament.

Origin of the Amendment Act

The need for the Amendment Act was not manifested until the appointment of Mrs. Jaya Bachchan as chairperson of the Uttar Pradesh Film development Council vide order dated 14.7.2004. On account of the fact that Mrs. Jaya Bachachan was a member of the Rajya Sabha and held an office of profit in the abovementioned capacity, a complaint was filed seeking her disqualification of membership from the Parliament under Article 102(1), Constitution of India, 1950. Resultantly, the procedure enunciated in Article 103(1), Constitution of India, 1950, was followed and the matter was referred to the President for a final decision. The said presidential order upheld the disqualification of Mrs. Jaya Bachchan on the account of holding an ‘office of profit’.

This presidential order was then challenged before the court in the matter of Jaya Bachchan vs. Union of India (2006), whereby the court rejected the challenge and upheld the disqualification of the candidate. It was after this case that it was discovered that there were a large number of Members of Parliament who were very likely to attract the same disqualification for holding the offices of profit. Therefore, to rectify the same, a bill titled, The Parliament (Prevention of Disqualification) Amendment Act, 2006, was introduced, which was hastily passed by both houses in a matter of days. The said Bill was further passed by the President on 18.8.2006 thus bringing the Amendment Act into existence. As a part of amendment, the Amending Act inserted several clauses in the form of Section(s) 2(ad), 2(k), (l), (m). All of these amendments were given a retrospective effect, bringing them into effect from 4^th April, 1959.

Issues raised

Based on the factual matrix of the case, the Hon’ble Supreme Court formulated the following questions to be deliberated upon, namely:

Whether exempting a list of “offices of profit” in retrospective effect is violative of Articles 101–104, Constitution of India, 1950?
Whether this exemption is violative of the ‘constitutional convention’ of seeking an opinion of the Joint Committee?
Whether the said Amendment Act, which exempts only certain “offices of profit,” is violative of Article 14 on account of being a colorable legislation?

Arguments of the parties

Petitioners

The petitioners were then represented by the senior counsels, Mr. Harish Salve and Mr. Ravinder Srivastava. They challenged the amendments on account of retrospective inclusion of a new list of offices of profit. This was considered to be violative of Article 101-104, Constitution of India, 1950, enumerating the provisions concerning disqualification of the members of Parliament.
The petitioners vehemently argued that giving retrospective effect to the amendments would mean that those members of Parliament who had ceased to be Members would now again be automatically inducted into the Parliament without even contesting any elections. This would tantamount to wrongfully reviving the membership of the Members of Parliament by deliberately enacting legislation in their favour. Considering that the parliamentary seat had become vacant on account of a constitutional disqualification, enacting legislation to overcome this hindrance would amount to violation of Articles 102(1) and 101(3)(a), Constitution of India, 1950.
The petitioners further submitted that ‘wholesale exemption’ of 55 offices, without having made any consultation with the joint committee as formulated under the aegis of the Bhargava committee since 1955, was violative of the constitutional convention formulated since 1955.

Respondent

The petitioners were opposed by senior counsels, Mr. Gopal Subramoniam and Mr. Mohan Parasaran. They submitted that the Parliament has due power to enact a law with retrospective effect. They argued that a member’s seat would not be considered vacant per se merely because of the fact that the Member has incurred a disqualification because of “accepting an office of profit”. Until or unless, the President of India, with the aid and advice of the Election Commission of India, declared the alleged disqualification, such member of Parliament shall not be deemed to be disqualified.
As for the Amendment Act being violative of Article 14, it was argued that there was no such “constitutional convention” in form of seeking the Joint Committee’s opinion on inclusion of an ‘office of profit’ in the exempted list. Even if it were to be assumed that such practice existed, nothing in law can prevent the parliament from formulating or amending legislation to add or remove any “office of profit” in the exempted list, as laid down by the provision of Article 102 (1)(a).

Important laws discussed in Consumer Education and Research Society vs. Union of India & Ors. (2009)

Article 14 of the Indian Constitution

Article 14 deals with the principles of “equality before law” and “equal protection of law”. It is one of the cornerstones of fundamental rights enshrined in the Indian Constitution.

The principle of “equality before law” implies that all persons, irrespective of their status, rank, or position, are subject to the same laws and are treated equally by the law. It prohibits discrimination and ensures that no person or class of persons receives special treatment under the law. On the other hand, the principle of “equal protection of law” suggests that the laws of the land should be applied equally and impartially to all citizens without any discrimination based on race, religion, caste, gender, or any other arbitrary distinction.

It is, however, important to note that this Article does not have universal application for all individuals. The State can make reasonable classifications for legitimate purposes, provided that the classification is based on intelligible differentia and has a rational nexus with the objective sought to be achieved by the law. Thus, the principles of equality before law and equal protection of the law are not absolute and are subject to reasonable classification based on intelligible differentia.

Article 101 of the Indian Constitution

This Article talks about the vacancy of seats in the Parliament or State Legislature under certain circumstances. Clause (3) of the Article provides that a person’s seat in the Parliament may be vacated if they are disqualified under the grounds mentioned in Article 102. Article 102(1)(a) provides for the vacating of a seat if the person holds an office of profit under the central or state government, unless the Parliament declares such office to not disqualify its holder. Hence, the person is liable to vacate their seat if they hold an office of profit as provided under Article 102.

Article 103 of the Indian Constitution

Article 103 provides that if there are any questions with respect to the disqualification of a member under Article 102(1), the question may be referred to the President and the decision of the President shall be final. Clause (2) provides that the President may consult the Election Commission to arrive at his decision.

Article 104 of the Indian Constitution

Article 104 provides that if a person who is disqualified under Article 102(1) sits or votes in either house, then they shall be liable to a penalty of Rs. 500 for each day that they sit or vote as debt to the Union.

Article 191 of the Indian Constitution

Article 191 provides grounds for disqualification of a member of legislative assembly. Article 191(1)(a) provides for disqualification if a person holds office of profit under central or state government.

Judgement of the case

Whether exemption of “office of profit” violates Articles 101-104

As for the power of the Parliament to enact legislation giving retrospective effect, the court upheld that the Parliament is very competent to do so. Therefore, in the case at hand, to argue that the parliament does not have the authority to enact legislation capable of removing the disqualification is untenable. The court relied on Srimati Kanta Kathuria vs. Manak Chand Surana, (1969), whereby the court expressly enunciated the power of the State legislature and Parliament to enact laws having retrospective effect in this context. The only restriction that the legislators ought to take into account is that enactment of such law must not be in violation of any of the fundamental rights. A bare reading of Article 191, Constitution of India, 1950, is also suggestive of the existing power of the state legislature and the Parliament to enact such a law to exempt any “office of profit.”. Thus, it is abundantly clear that the act of enactment of this amendment act with retrospective effect is not ultra vires the scope of powers of the Parliament. The court, relying on the case of Indira Nehru Gandhi vs. Raj Narain, (1975), held that there is nothing that forbids the parliament from making any law prospectively, whose operation may commence retrospectively.

While relying on Election Commission, India vs. Saka Venkata Subba Rao & Union of India, (1953), and Brundaban Nayak vs. Election Commission of India, (1965), the court reaffirmed the applicability of Articles 101 and 102 and clarified that the operation of both these articles only commences after the MP has already been elected. In other words, both these articles refer to the vacation of seats wherein the members have been duly elected. In the event where a candidate was infested with a disqualification at the time of filing his candidature for election, any challenge to such candidature would not fall under the purview of either of these articles. This would be a separate subject matter, to be addressed via an election petition before the High Court.

The question of whether an incumbent MP is disqualified or not is a mixed question of law and fact. It is only after the President has rendered his decision under Article 103, declaring that the member has incurred disqualification, would the said member’s seat fall vacant owing to the same. Such a removal and vacancy of the seat is self-operative and automatic. As far as the effect of the decision of the president is concerned, the said decision is merely adjudicatory in nature. The president’s decision is not capable of ordering the removal of the disqualified member from office. It is merely a declaration of the removal, which would be effective from the date on which the member became infested with the disqualification. Thus, as soon as the president declares that the incumbent MP is disqualified due to holding the office of profit, s/he shall cease to be a Member of Parliament. This cessation shall take effect from the date the member accepts the office of profit. As a consequence, the seat once occupied by the said MP would become vacant.

Whether exemption violative of ‘Constitutional Convention’ of seeking opinion of Joint Committee

The court reiterated and reaffirmed the legal tenets that the Parliament has all the authority to enact any legislation with a retrospective effect as well. The act of seeking the opinion of the Joint Committee is not a ‘constitutional convention’. It was merely a parliamentary procedure followed formerly. It is true that it was bypassed before passing the impugned Amendment Act; however, this does not have any effect on the validity of the Amendment Act. This indeed cannot render the amendment act unconstitutional. The Parliament is rightfully competent to enact this legislation as long as it is confined to constitutional legalities.

Whether Amendment Act is violative of Article 14

The doctrine of colourable legislation means that whatever is prohibited directly cannot be accomplished indirectly either. The whole objective behind this doctrine is to limit the excessive use of power. In the event that the judiciary comes across any such legislation, it has the authority to strike it down on account of a violation of Article 14. In the case at hand, the Amendment Act, which exempted certain offices of profit, was under the scanner. The court examined the list of exempted “offices of profit” and arrived at a conclusion that there is no commonality or well defined ground on which the impugned offices were exempted. There are several offices of similar nature that have been excluded from the purview of exemption. Each office of profit may have different consequences and effects to follow. Besides, inclusion or exclusion of either office solely falls within the purview of the legislative domain. This matter is decided upon by Parliament. There is no possibility of defining which genre of offices should ideally be exempted or not. Therefore, to say that the Amendment Act was enacted with the tinted intent of accomplishing what the Parliament could not rightfully do, would be a flawed argument.

Thus, examining all three issues at hand, the court concluded that the instant writ petition is without merit and the impugned amendment act is constitutionally valid. Therefore, the writ petition was dismissed.

Analysis of Consumer Education and Research Society vs. Union of India & Ors. (2009)

Having discussed the entire judgement surrounding disqualification incurred owing to occupying an “office of profit” under the government, it becomes imperative to understand this concept. The term is not specifically defined anywhere in the constitution or in any other legislation. For instance, the United States Constitution defines it as an office to which fees, a salary or other compensation are attached. As for Indian jurisdiction, the judiciary has defined it as an office that has some sort of pecuniary gain attached to it. In the case of Statesman (P) Ltd. vs. H.R. Deb and Ors, (1968), the Court defined office as a certain position having corresponding duties attached to it. In the case of Great Western Railway Company vs. Bater (1922), Justice Rowlatt defined office as a “subsisting, permanent, substantive position, which had an existence independent from the person who filled it, which went on and was filled in succession by successive holders.”

The Hon’ble Court has laid several guidelines to determine whether an office is an office of profit. In the case of Chandrasekhar Raju vs. Vyricherla Pradeep Kumar Dev and Another (1992), the court examined the case of the election of a primary school teacher. The said school was run by the Integrated Tribal Development Agency. Therefore, the government sanctioned funds for the school. The question was whether the position of the teacher in the school would be considered to be that of an office of profit under the government? The court concluded that, undoubtedly, the government had some intervention in the school’s operations but it did not affect the appointment of the teachers. Thus, this post cannot qualify as an office of profit under the government. While deliberating over this issue in depth, the court illustrated a test to resolve this conundrum. It opined that for any position to be titled as an office of profit under the government, it must fulfil the following criteria:

The government must have direct control over appointment and removal of the holder of office. By direct control, it is meant that the government itself should hold the power to appoint or dismiss the holder. Mere control over the appointing authority will not qualify as government’s control.
The remuneration for the same must be made from government funds.
The holder must perform some function for the government.
The government must have some control over the functions performed by the holder.

With that being said, the court also clarified in the case of Biharilal Dobray vs. Roshan Lal Dobray (1984) that there need not be a master-servant relationship between the government and the person. For a person to be presumed to be holding an office of profit under the government, it need not be in the service of the government per se.

The court has come to resolve several cases with the application of this test. For instance, in the case of Kanta Kathuria vs. Manak Chand, (1969), it was concluded that a member of parliament practising as an advocate shall not be deemed to hold an office of profit under the government. Such a person shall not be deemed to be serving the government but the court. Thus, s/he would not be infested with the disqualification enumerated under Article 191.

Resignation from an office of profit

With the analysis of the judgement, it is absolutely clear that a member of parliament would either have to give up on his/her seat of parliament or the office of profit in order to retain the seat. Any member who holds an office of profit under the government while filing his papers for nomination stands disqualified at the first instance itself, as held in the case of Ram Murty vs. Sumbha Sardar, 2 E.L.R. 330. Presumably, if one does not incur any such disqualification at the time of filing or voluntarily chooses to resign the office of profit, it must be submitted before the competent authority. Failure to do so would make the resignation infructuous and ineffective. As a result, it shall be presumed that there was no resignation filed and the member shall be deemed to still occupy the office of profit, thereby attracting the disqualification as held in Thakur Daoosing vs. Ramkrishna Rathor, 4 E.L.R. 34.

Positions not considered to be office of profit

In the case of Divya Prakash vs. Kultar Chand, (1975), the Court held that a Member of Parliament, elected as a chairman in a state Board of school education in an honorary capacity, cannot be deemed to be occupying an office of profit under the government. Hence, such a member shall not be deemed to be disqualified.

Similarly, in Daulat Ram vs. Maharaja Anand Chand (6 E.L.R. 87), where a former ruler of an Indian state was entitled to receive an amount annually as a privy purse from the Government, the court disregarded the same as occupying an office of profit under the government.

Conclusion

With the analysis of the judgement, we have learned the procedure and disqualifications concerning the seat of a member of parliament. We also learned the due procedure of law to be followed in case of such disqualification. The author completely concurs with the opinion of the court on upholding the validity of the Amendment Act, however, one cannot help but ignore how this power can be misused to the benefit of their respective candidates. Considering that Parliament has been upheld as being vested with the power to formulate legislations with retrospective effect, it is not difficult to imagine where the ruling party may use this provision to their advantage. It may so happen that, in order to prevent their ministers from incurring any disqualification, the ruling party enacted such an amendment act to include their “offices of profit” under the exempted list. It is expected that in such a scenario, the court will exercise due caution in evaluating such a situation and striking it down timely in the interest of the public. Rather, we may say that the court is very much conscious of such possibility, which is perhaps why it cautions the legislators against the use of these powers reasonably while ensuring that it does not defeat the letter and spirit of the law.

Frequently Asked Questions (FAQs)

What is the disqualification for a Member of Parliament?

As per Article 102, a person shall be deemed to be disqualified for being a member of the Parliament:

He/she holds any office of profit under Government of India or any State and the same has not been exempted by the Parliament from incurring any disqualification upon the member
He/she is of unsound mind or has been declared by the court of being an unsound mind;
He/she is declared to be an undischarged insolvent;
He/she is not a citizen of India or has come to acquire the citizenship, acknowledgement or an allegiance of a foreign state;
He/she is disqualified hold the position under any other statue formulated by the Parliament;
He/she is disqualified under the anti-defection law enumerated in the tenth schedule of the constitution.

Who decides the question regarding the disqualification of the Member of Parliament?

As per Article 103, the President, after seeking the opinion of the Election Commission, decides upon the matter of disqualification of a Member of Parliament.

What are constitutional conventions?

Constitutional conventions refer to the unwritten rules or traditional practices followed in a State. They are not encompassed in the form of legal statutes or rules, either. Yet they are binding on the State. These conventions are very useful, especially in the situation where the constitution has failed to anticipate and provide solutions. They mostly facilitate the regulation of the interplay of relationships between the executive and legislature.

Whether the seat of the Member becomes vacant as soon as he/she accepts the office of profit?

No, the office does not immediately become vacant upon the acceptance of the office of profit. For a disqualification to take effect, it is important that it be challenged and adjudicated upon. This may be done via an election petition at the time when the candidate is filing his/her nomination papers. In the event where the candidate has presumed the office of profit after his/her election as a MP, the same may be challenged before a competent court as well. In a nutshell, it is important to pose a challenge in order to effectuate the disqualification. If it goes unnoticed or remains unchallenged, then such a member would continue to hold the office despite his/her disqualification.

References

https://articles.manupatra.com/article-details/Office-of-Profit-A-Comprehensive-Analysis
Office of profit under the government by Mr. Rustom S. Gae, Journal of the Indian Law Institute, vol 48:3, pp. 400-408

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S.P. Anand vs. H.D. Deve Gowda and Ors. (1997)

By

Vanshika Kapoor

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June 24, 2024

0

This article is written by Almana Singh. It deals with the thorough analysis of the judgement pronounced in the case of S.P. Anand vs. H.D. Deve Gowda and Ors., AIR 1997 SC 272, concerning its facts, issues raised, arguments advanced, as well as the legal provisions involved relating to the Constitution of India.

Table of Contents

Introduction

One of the key mantras of democracy is that it stands on the principle “democracy is of the people, for the people and by the people”, but is that really so? Ironically enough, when the largest democracy in the globe allows an individual who is not directly elected by the people to be appointed as the Prime Minister who will lead the governance and administration of that country for the next 5 years, if not more. The complexity of this issue was resolved by the Hon’ble Supreme Court of India in the case S.P. Anand vs. H.D. Deve Gowda and Ors. (1997), where the constitutionality of the appointment of Shri H.D. Deve Gowda as the 11th Prime Minister of India, despite the lack of membership in either House of Parliament, was questioned.

Details of the case

Case Name

S.P. Anand vs. H.D. Deve Gowda and Ors.

Petitioner

S.P. Anand

Respondents

There are 5 respondents involved in the case, namely,

Respondent no. 1: H.D. Deve Gowda;

Respondent no. 2: Union of India;

Respondent no. 3: Dr. Shankar Dayal Sharma;

Respondent no. 4: Speaker of Lok Sabha;

Respondent no. 5: Leader of Muslim League in Lok Sabha.

Court

The Hon’ble Supreme Court of India

Type and case no.

Writ Petition (Civil) No. 850 of 1996

Date of judgement

6th November 1996

Bench

The then Chief Justice of India A.M. Ahmadi and Justice S.V. Manohar

Equivalent citations

MANU/SC/0075/1997, 1996 INSC 1293, 1996 (4) CCC 136, JT 1996 (10) SC 274

Provisions and Statutes involved

Articles 32, 74, 75, 163, and 164 of the Constitution of India

Facts of the case

Shri H.D. Gowda, the respondent, resigned from the post of Chief Minister of Karnataka to serve as the 11th Prime Minister of India. He was not a member of either House of Parliament at the time of his appointment. S.P. Anand, the petitioner, filed this petition under Article 32 questioning this appointment and posed an issue of whether a position of such a high rank as Prime Minister of India can be given to a person who is not even a member of the Parliament.

Issue raised

The main issue dealt with in this case was whether a person who is not a member of either House of Parliament can be sworn in as the Prime Minister of India.

Arguments of the parties

Petitioners

The petitioner contended that Shri H.D. Gowda is not eligible to be appointed as the Prime Minister because of his lack of membership in either House of the Parliament.
The petitioner contended that this appointment had violated the fundamental rights guaranteed to him under Articles 14, 21 and 75 of the Constitution of India, making the appointment void ab initio.
The petitioner argued that a person who is not elected by the citizens of India and has not gained their trust to hold a position as significant as that of a Prime Minister poses a great risk to the nation’s security during times like war.
The petitioner referred to an authoritative encyclopaedia of law in England, namely, Halsbury’s Laws of England and Article 75(5) of the Constitution of India, which allows for the appointment of a minister even when he lacks membership in either of the Houses of Parliament. However, the petitioner made a narrow interpretation and suggested that it does not allow for the appointment of a high position as that of a Prime Minister.

Respondent

The respondents denied the contentions of the appellants and argued that Article 75(5) of the Constitution of India allows for the appointment of Ministers even though they lack membership in either House of the Parliament.

Laws discussed in S.P. Anand vs. H.D. Deve Gowda and Ors. (1997)

The court, in this case, referred to several Articles of the Constitution of India, which have been briefed below for a thorough perusal.

Article 32 of the Constitution of India

Article 32(1) says that an individual has the right to move to the Supreme Court by appropriate proceedings for the enforcement of rights given in Part III of the Constitution.

Article 32(2) gives the power to the Supreme Court to issue orders, directions, or writs, whichever may be appropriate for the enforcement of the rights guaranteed under Part III.

The Writs referred to in this section are of 5 types:

Writ of Habeas Corpus: It is used when the fundamental rights of individual liberty are breached due to unlawful detention.
Writ of Mandamus: It is issued by the court when a public official has failed to perform or abstained from performing their duties and to resume the work.
Writ of Prohibition: It is issued to forbid a court of lower jurisdiction from going beyond its jurisdiction that it does not possess.
Writ of Certiorari: The literal meaning of Certiorari is “To be informed”. It is issued by the court of a higher jurisdiction to a lower court or tribunal and orders them to transfer a case or quash their order in a case.
Writ of Quo-Warranto: It is issued when the court asks the question, “What is your authority?”. It is used to challenge the authority of a person to hold a position in a public office. It can’t be issued to private offices.

Article 32(3), in simpler terms, says that the Supreme Court enjoys the authority to enforce fundamental rights through order, decrees, and writs, as stated in Clause (2). Parliament can also pass laws allowing other courts to exercise similar powers within their respective jurisdictions without decreasing the powers of the Supreme Court.

Article 32(4) states that the rights guaranteed under this Article should not be suspended except in cases where the Constitution says the same.

Article 74 of the Constitution of India

Article 74 provides provisions to the Council of Ministers in aiding and advising the President. Article 74 has two clauses, which are briefed below for a thorough understanding.

Article 74(1) states that there will be a council of ministers led by the prime minister, and the role of the council will be to assist and provide guidance to the president. It also states that the President must follow the advice when performing their duties. However, the President can ask the Council of Ministers to review their advice, but after reconsideration, the President will be obliged to follow the revised advice provided.

Article 74(2) states that the court cannot question the matters as to what advice was given to the President by the Council of Ministers.

Article 75 of the Constitution of India

Article 75(1) gives the provision for the appointment of the Council of Ministers. It states that the Prime Minister shall be appointed by the President, and the Council of Ministers should be appointed by the President but on the advice of the Prime Minister.

Article 75(1A) states that the total number of Ministers in the Council of Ministers, including the Prime Minister, should not exceed 15% of the total number of members in the Lok Sabha, i.e. House of the People. If there are 543 members in the Lok Sabha, then the number of Council of Ministers can be 81, including the Prime Minister.
Article 75(1B) states that a person who is a member of either House of Parliament, i.e. Lok Sabha and Rajya Sabha and who belongs to any political party and is disqualified under Paragraph 2 of the Tenth Schedule cannot be appointed as a Minister under the Council of Ministers. This restriction lasts from the date of such disqualification until their term in office would have normally ended, but if they contest an election in either of the Houses of Parliament before this period ends and get elected, the restriction ends on the date they are elected.

Article 75(2) states that Ministers should hold office during the pleasure of the President. Here, the term “Pleasure of President” refers to the independent power of the President to make a decision without being required to take advice from Prime Ministers or the Council of Ministers.

Article 75(3) states that the Council of Ministers is collectively responsible to the House of the People, i.e. the Lok Sabha.

Article 75(4) states that before a Minister joins the office, the President should administer the oaths of the office and secrecy in accordance with the forms outlined in the Third Schedule.

Article 75(5) states that a Minister who is not a member of any of the Houses for six consecutive months should cease to be a member of the Council of Ministers.

Article 75(6) states that the salaries and allowances of the Ministers should be determined by the Parliament through legislation. Until the Parliament makes such a determination, the salaries and allowances will be governed in accordance with the Second Schedule.

Article 163 of the Constitution of India

Article 163(1) states that there should exist a Council of Ministers at the State level, which is led by the Chief Minister to aid and advise the Governor in performing his duties except in the cases where the Constitution itself requires the Governor to act at his discretion.

Article 163(2) states that if any question arises regarding a matter in which the Governor is required to act at his discretion, it is stated that the Governor’s decision will be held final. The validity of the Governor cannot be challenged in court.

Article 163(3) states that courts are not allowed to investigate or question the advice given by the Ministers to the Governor.

Article 164 of the Constitution of India

Article 164(1) states that the Chief Minister should be appointed by the Governor, and the other Ministers should be appointed by the Governor but on the advice of the Chief Minister. It also states that the Minister shall hold the office at the pleasure of the Governor, meaning they can be removed from office at any time.

The proviso says that in certain states like Chhattisgarh, Jharkhand, Madhya Pradesh, and Odisha, there should be a tribal welfare minister. This Minister can also be tasked with overseeing the welfare of Scheduled Castes and Backward classes.

Article 164(1A) states that the total number of Ministers, including the Chief Minister in the Council of Ministers at the state level, should not exceed 15% of the total number of members in the Legislative Assembly of that state. It also states that there must be a minimum of 12 members in the Council of Ministers at the state level. The proviso says if a state has more Ministers than the prescribed limit, either exceeding the recommended 15% or falling below the minimum 12 ministers, then the state is required to adjust the number of Ministers to comply with the limits set in clause (1A) of Article 164 within 6 months from the date specified by the President through a public notification.
Article 164(1B) states a restriction that if a member of a State Legislative Assembly or either House of the Legislature and an individual who belongs to a political party is disqualified for being a member of that House because of the disqualifications provided under the paragraph 2 of the Tenth schedule. They will be restricted from being appointed as a member of the Council of Ministers. This restriction lasts from the date of their disqualification until the expiration of their term as a member of that House, and if they contest any election in the Legislative Assembly or the Legislative Council, as the case may be, before the expiry of such period or on the date when he is declared elected, whichever is earlier.

Article 164(2) states that the Council of Ministers of the State will be collectively responsible to the Legislative Assembly of the State.

Article 164(3) states that the Governor shall administer an oath of secrecy before the Minister enters their office in accordance with the forms set out for this purpose in the Third Schedule.

Article 164(4) states that if a minister for a consecutive period of 6 months is not a member of the State legislature, then he ceases to be a minister at the expiration of such period.

Article 164(5) states that the salaries and allowances of the Ministers should be decided by the Legislature of the State periodically. Until the legislature determines, the same will be governed by the Second Schedule.

Judgement in S.P. Anand vs. H.D. Deve Gowda and Ors. (1997)

The Court started discussing the question at hand and referred to a judgement given by the Constitutional Bench of the Supreme Court. In the case of Har Sharan Verma vs. Shri Tribhuvan Narain Singh, Chief Minister, U.P. and Anr. (1971), T.N. Singh was appointed as the Chief Minister of Uttar Pradesh even though he lacked membership in both houses of the State Legislature on the date of his appointment. The appellant contended that Article 164(4), which states that a minister ceases to hold the office if he is not part of the Legislature consecutively for 6 months, should only apply to cases where the minister was initially a member but was disqualified at a later date. However, the court, in this case, applied the principle enshrined in Article 164(4) broadly and opined that it also allows someone who was originally not a member on the condition that he becomes a member within 6 consecutive months.

The Court cited the case of Har Sharan Verma vs. State of U.P. (1985). The appellant contended that K.P. Tiwari was appointed as a Minister of the U.P Government even though he was not a member of either house of the State Legislature. The appellant contended that the previously cited case of T.N. Singh was not good law since it overlooked the amendment of Article 173(a), which states that candidates for legislative positions should take an oath prescribed by the Third Schedule before standing for elections to ensure that only an individual having faithfulness towards India is elected. However, the Court maintained its stance and asserted that the amendment of Article 173 does not change the law established in Article 164(4) and the T.N. Singh case, which affirms that individuals not belonging to the State Legislature can be appointed as Ministers, even Chief Minister on the precondition that they join the State Legislature within 6 consecutive months.

The court referred to the judgement pronounced in the case of Har Sharan Verma vs. Union of India (1987). In this case, the appointment of Shri Sita Ram Kesri as a Cabinet Minister was questioned because he was not a member of either House of Parliament on the date of his appointment. The court, on the combined reading of provisions mentioned in Article 75(5) and Article 88 of the Constitution of India, yet again, upheld the appointment of Shri Sita Ram Kesri and reaffirmed that an individual not part of either Lok Sabha or Rajya Sabha can also be appointed as Cabinet minister on a precondition that he gets elected within the 6 months from the date of appointment.

The Court then referred to the two judgements pronounced by the Delhi High Court and Calcutta High Court, which questioned the appointment of the present respondent, Shri. H.D. Gowda on similar grounds.

Firstly, in the Delhi High Court, Dr Janak Raj Jai filed a writ petition contending that H.D. Gowda was not a member of either House of Parliament on the date of their appointment and he should not be appointed as the Prime Minister because it contravenes with the principles established in Article 75(5) of the Constitution of India. The Delhi High Court opined that the word “Minister” includes “Prime Minister” too and dismissed the petition.

Secondly, in the Calcutta High Court, a petition was filed by a Senior Advocate, Mr. Ashok Sen Gupta, challenging the appointment of H.D. Gowda as the Prime Minister, but the Single Judge bench of the High Court of Calcutta reaffirmed that a minister who is not a part of either of the Houses of Parliament could indeed be appointed as the Prime Minister.

The petitioner had contended that an individual who is not elected by the people and lacks their trust should not be allowed to take the office of a Prime Minister as it poses a great risk to the Nation’s security, and when the Court referred to the aforementioned case laws, petitioner argued that the decisions are obsolete and needs to be reconsidered. The Court replied that the petition lacked study, research and seriousness. It contains casual and irrelevant arguments from freedom of speech to fraternity to judicial review and so on. The Court believed that the petition was empty rhetoric and held no substance.

The Court now compared Articles 74 and 75 parallel to Articles 163 and 164 of the Constitution of India. All four of them have been elaborated under the heading “Laws Involved”. The court observed that,

Articles 74 and 75 deal with the President and Prime Minister of India, while Articles 163 and 164 relate to the Governor and the Chief Minister of the State.
Article 74(1) and Article 163(1) are similar in nature. Article 74(1) grants a privilege to the President, which is not found in Article 163(1), and the provisions of Article 163(2) are entirely absent if compared to Article 74.
Articles 75(1) and (2) are similar to Article 164(1), except that the latter combines the two clauses into one.
The proviso of Article 164(1) is only applicable to States and is not present in Article 75.
The remaining clauses of the two Articles are the same, but there are a few minor differences.

The Court then referred to the debates of the Constituent Assembly, which refers to the interpretation of Article 75(5) of the Constitution of India, which states that an individual can join the office even though they are not a member of either House of the Parliament on the condition that they will get elected in the next 6 months. When the Constitution of India was being drafted, there was a debate that such an appointment would undermine the ideals of democracy. A few amendments were proposed in regard to these provisions, but they were rejected by Dr. B.R. Ambedkar, the principal drafter of the Constitution of India. He was of the opinion that competent individuals who might have lost the election due to one reason or another should not be restricted from ministerial appointments because they can still contest elections and win from some other constituency. He also said that a minister who is nominated as a member of the cabinet does not violate collective responsibility as long as they support the policies of the cabinet and resign in case they lose confidence in the House.

The petitioner referred to Halsbury’s Laws of England (Third Edition), page 347 and para 747, which says conventionally, a Prime Minister is either a member of the House of Commons or the House of Lords. The petitioner interpreted Article 75(5) narrowly and suggested that although it allows for the appointment of a minister who lacks membership of either House of the Parliament, it does not in any way or form suggest the appointment of a high position like that of the Prime Minister without being elected by the people. The Court, while rejecting this contention, gave several arguments, which are briefed below.

Firstly, this submission was rejected, and the Court rendered that the Prime Minister is chosen by the people who are elected representatives of the Citizens of India, and the Prime Minister enjoys the confidence of the majority of the elected representatives in the Lok Sabha.
Secondly, the court established that there is no difference between the Minister and Prime Minister and observed that Article 75(1) forms a Council of Ministers with the Prime Minister as the head to aid and advise the President and the President is expected to act according to the advice of the Council of Ministers and not go solely on the advice of any single individual. The President would only appoint a person who enjoys confidence in Lok Sabha as the Prime Minister, who in turn would choose the Cabinet of Ministers. The Marginal Note of Article 75 also says “other provisions as to Ministers” and there are no other provisions dealing with the Prime Minister as such.
Thirdly, the Prime Minister and Council of Ministers, once appointed, have a collective responsibility towards the Lower House of the Parliament, i.e. Lok Sabha, to ensure smooth functioning and democratic machinery. Therefore, even though the Prime Minister might not be a member of either House of Parliament but once he is appointed he becomes collectively responsible towards the Council of Ministers, the President and the citizens of India.
Fourthly, the English convention cited by the petitioner was rejected simply because our constitution allows for the appointment of the Prime Minister despite the lack of membership in either house. The Court also opined that the British Convention cited is not in tune with the Constitutional scheme of India and it is not a recognised practice in India.

The Supreme Court referred to a minor issue where the petitioner in the case at hand informed the Supreme Court that a similar petition had been filed in the Madhya Pradesh High Court, and they wanted to withdraw their PIL. However, the court denied the request because the petitioner was raising the same issue in the High Court of Delhi, Madhya Pradesh, Calcutta and Allahabad, and to prevent the issue of conflicting judgements and avoid a flood of similar cases, the court, by itself decided to address the issue at hand comprehensively.

In the last paragraph of the judgement, the Court had a critical tone and reprimanded the petitioner for filing a poorly researched and casually drafted petition, which lacked a clear understanding of constitutional law and urged the petitioner to refrain from doing so. The Court opined that we as individuals should realise the importance of responsibility and restrict ourselves when invoking the court’s jurisdiction at the time of filing petitions with impulsive sentiments for publicity and fame because it can harm many important causes and affect the actual rights of a deprived party.

The Court ruled in favour of Shri H.D. Gowda, the respondent and held his appointment valid, and the petition was dismissed without costs.

Precedents referred to in the case

To reach the conclusion and answer the question about the appointment of Shri H.D. Gowda, the Supreme Court referred to several cases, which have been briefed below for a thorough understanding.

Har Sharan Verma vs. Shri Tribhuvan Narain Singh, Chief Minister, U.P. and Anr. (1971)

The core issue in the case of Har Sharan Verma vs. Shri Tribhuvan Narain Singh, Chief Minister, U.P. and Anr. (1971) was whether the appointment of Tribhuvan Narain Singh as the Chief Minister of Uttar Pradesh was valid even though he lacked the membership of either House of the State Legislature at the time of his appointment. The judgement in this case was delivered by Justice G.S. Lal. The Court held that Articles 163 and 164 of the Constitution of India do not specify any qualifications for the appointment of a Chief Minister and reaffirmed that a non-member can also be sworn in as the Chief Minister as long as the person gets elected in either house of the State Legislature within six consecutive months. The Court also ruled that the Council of Ministers, including the Chief Minister, have a collective responsibility to the Legislative Assembly as per Article 164(2). As long as the appointed non-member chief minister enjoys confidence in the Legislative Assembly, it cannot be held as a violation of Constitutional principles enshrined in the Constitution of India. The writ petition filed by Har Sharan Verma was dismissed, and the Court upheld the validity of Tribhuvan Narain Singh’s appointment as the Chief Minister of Uttar Pradesh.

Har Sharan Verma vs. State of Uttar Pradesh (1985)

The court, in this case, dealt with the question of the constitutional validity of K.P. Tewari’s appointment as a Minister in the Government of Uttar Pradesh. The petitioner contended that the Constitution (Sixteenth) Amendment Act, 1963, had restricted the appointment of an individual who was not a member of either House of State Legislature as the Minister. The judgement in this case was delivered by Justice Venkataramiah, who dismissed the petition and held that Article 164(4) explicitly allows an individual who lacks membership in either house to be appointed as Minister, including the Chief Minister. However, a condition is that they should become a member of the State Legislature within 6 months of the appointment. The Court ruled that the amendment proposing a Minister should be a member of the Legislature at the time of appointment was rejected by the Constituent Assembly, which indicated that the framers of the Constitution did not intend to restrict such appointments to members only.

This case was another precedent in the series of cases where the Court upheld the appointment of an individual who lacked membership in the State Legislature, citing that the Constitution of India, specifically Articles 163 and 164, allows it.

Har Sharan Verma vs. Union of India (1987)

The petitioner in Har Sharan Verma vs. Union of India(1987) contended that the appointment of Shri Ram Kesari as Minister of State in the Central Cabinet, even though he lacked membership in either House of Parliament, is constitutionally invalid and should be deemed unconstitutional. This petition was initially rejected by the Lucknow Bench of the Allahabad High Court. However, the petitioner sought special leave to appeal against this decision in the Supreme Court, but the Supreme Court dismissed the application and maintained a stance similar to that of the High Court. The Supreme Court noted that Shri Sita Ram Kesari, the respondent whose appointment was being questioned, had already ceased to be a Minister. However, the Court still examined the questions posed by the appellant and held that Articles 75(5) and 88 of the Constitution of India allow for the appointment of a Minister even in the absence of membership in the legislature. The Court again referred to the debate where Dr. B.R. Ambedkar had opposed the Constitution (Sixteenth) Amendment Act, 1963 and opined that a temporary lack of membership should not cost competent individuals a seat in Parliament.

The Court, yet again, concluded that appointing a non-member as Minister does not undermine any democratic and constitutional principles as long as the individual becomes a member of the Legislature within 6 consecutive months.

Analysis of S.P. Anand vs. H.D. Deve Gowda and Ors. (1997)

Allowing the appointment of non-members can have both positive and negative impacts on constitutional principles. It provides the flexibility to consider the appointment of competent individuals who might not have been elected for one reason or another. This reasoning was also discussed by Dr. B.R Ambedkar in the Constituent Assembly when an amendment was proposed to change the provisions which allow members who lack membership in either house of the parliament to be appointed as ministers, and he was of the opinion that this does not hamper the democratic principles.

On the other hand, appointing non-members raises several concerns, such as the fact that one of the core principles of a functioning democracy is accountability. This principle is hampered when individuals who have not been directly elected by the people for whom this democracy is made are appointed to ministerial positions. It also weakens the role of a legislative body because a person who is not directly elected would not be fully involved in the parliamentary process and debates, which erodes the principle of collective responsibility.

Conclusion

The Hon’ble Supreme Court in the case of S.P. Anand vs. H.D. Deve Gowda and Ors. (1997) ruled in favour of Shri H.D. Deve Gowda, upholding the constitutionality of his appointment as the then Prime Minister of India. The Court relied on several precedents and came to the conclusion that the word “minister” in Article 75(5), which allows for the appointment of non-members of Parliament as Minister, also includes the appointment of the Prime Minister of India, and there is no other rule or statute that governs the same. The Court also opined that a petition of this grave nature where Constitutional provisions are questioned should not be filed without thorough research and understanding of the legal precedents and constitutional provisions just for the sake of the name and fame it comes with.

Frequently Asked Questions (FAQs)

According to Article 75(5), what is the maximum period allowed before a non-member minister is disqualified?

Article 75(5) of the Constitution of India allows for a period of 6 consecutive months before a Minister is disqualified.

Is a non-member allowed to participate in parliamentary proceedings?

Yes, Article 88 of the Constitution of India allows non-members to participate in parliamentary proceedings, including speaking and discussing issues, but they do not have the right to vote on any subject.

References

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Section 12 of Hindu Minority and Guardianship Act, 1956

By

Vanshika Kapoor

-

June 24, 2024

0

This article is written by Gauri Gupta. It aims to provide an in-depth analysis of Section 12 of the Hindu Minority and Guardianship Act, 1956. The article highlights the basics of the Hindu Minority and Guardianship Act, 1956, followed by an understanding of when a minor has an undivided interest in joint Hindu family property.

Table of Contents

Introduction

The concept of guardianship is relatively modern. The Hindu Dharmashastras provided for the concept of joint Hindu families where parents were responsible for looking after their child and ensuring the safety of their bodily integrity and personal interest in the property. It was in 1956 that the Government of India enacted the Hindu Minority and Guardianship Act, 1956 to regulate matters pertaining to guardianship and custody of minor Hindu children. The Act extends to Indian territory and applies to Hindus domiciled within the boundaries of India, including Parsis, Jains, and Buddhists. Section 12 of the Hindu Minority and Guardianship Act, 1956 saves the inherent jurisdiction of the High Court to appoint the guardian of the minor’s interest in joint family property. It provides for appointing guardians in cases where joint family property is under the management of an adult.

The article provides a historical background, explains the evolution of the concept and explains the different schools of law. Furthermore, it articulates the difference between guardianship and custody and elaborates on the ingredients of Section 12 of the Act with relevant case studies.

Historical background

The concept of guardianship has its roots in the holy scriptures, including the Hindu Shastras and the Quran. The rationale behind the concept is to protect the welfare of children. In India, various legislations have governed the concept of guardianship, including the Guardianship and Wards Act of 1890, the Hindu Minority and Guardianship Act of 1956 and various personal religious laws.

The concept of guardianship has always been associated with patriarchy, where the father is the sole guardian of the household, the property and his children. Females, especially mothers, did not enjoy independent legal status over the property or their children. In other words, due to the familial patriarchal structure in the Vedic scriptures along with the power of the Karta of the Joint Hindu family, the concept of guardianship had little relevance.

However, during the colonial era, the courts started recognising the necessity of ensuring that mothers have legal status over their children and thus drew authority from MacNaghten and M/s Strange and formulated a list of guardians. This list included the father, mother, and elder brother, among other paternal and maternal relations, as the guardians of the child.

In an effort to modernise the Hindu legal tradition, three Hindu Bills were introduced during the leadership of Pandit Jawaharlal Nehru. These Bills, when enacted, came to be known as the Hindu Minority and Guardianship Act, 1956 (“Act”); the Hindu Succession Act, 1956 and the Hindu Marriage Act, 1955. The former was introduced to enhance the Guardians and Wards Act, 1890, which was introduced during the colonial era.

Schools of Hindu Law

There are two schools of law governing Hindus: the Mitakshara law school and the Dayabhaga law school.

Mitakshara school of law

The term “Mitakshara” is derived from the Yajnavalkya Smriti, authored by Vijnaneswara. It is observed in all parts of India and is subdivided into the Benaras, Mithala, Maharashtra and Dravida schools. As per this school, a son acquires interest in the ancestral property of the joint family by virtue of his birth. All the members of a Hindu family enjoy coparcenary rights during the lifetime of the father. The share is neither defined precisely nor can it be disposed of. Furthermore, as per the Mitakshara School, a wife cannot demand partition but has the right to a share in any partition that takes place between her husband and sons.

Dayabhaga school of law

Observed in the states of Bengal and Assan, Dayabhaga is derived from the text authored by Jimutavahana. As per this school of law, the son does not automatically acquire a right in the ancestral property but acquires it upon the death of his father. Furthermore, sons do not enjoy coparcenary rights during the lifetime of their father. Their share is defined and can be disposed of. Wives cannot demand a partition since the father is the absolute owner of the property.

Difference between guardianship and custody

Guardianship and custody are two important concepts of any matrimonial relationship. Although used interchangeably, they are two different concepts and assume great significance in day to day lives.

The term “guardianship” exists at law, whereas “custody” is granted as a matrimonial relief to a parent who seeks such custody of their child. It is pertinent to note that a guardian need not be a custodian, or a guardian of a child. Guardianship is a more comprehensive term and connotes wider rights than mere custody,

Applicability of Hindu Minority and Guardianship Act, 1956

Section 3 of Hindu Minority and Guardianship Act, 1956 applies to the following individuals within the territory of India:

Any person who is a Hindu by religion or is any of its forms or developments, including the Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
Any person who is a Jain, Buddhist, or Sikh by religion.
Any child of a Hindu, Budhhist, Jain or Sikh.
Legitimate or illegitimate child of Hindus, Buddhists, Jains, or Sikhs who are governed by the Act.
Any person whose parents are Buddhists, Hindus, Jains ,or Sikhs by religion.
Any child, legitimate or illegitimate, one of whose parents is a Hindu, Jain, Sikh, or Buddhist by religion and is brought up as a member of the tribe, family, group or community belonging to such parent.

The provisions of the Act apply to any person who is domiciled within the territory of India and is not a Muslim, Christian, Parsi or Jew by religion.

Definition of key terms under the Hindu Minority and Guardianship Act, 1956

Minor

Section 4(a) of Hindu Minority and Guardianship Act, 1956 provides that a minor is defined as an individual who has not completed 18 years of age.

Guardian

Section 4(b) of Hindu Minority and Guardianship Act, 1956 defines a guardian as a person who has completed 18 years of age and is taking proper and complete care of the minor, his property or both. It includes the natural guardian, the guardian appointed by the will of the minors’ father or mother, a guardian declared by the court, and any person empowered to act as the guardian relating to any court of wards.

Natural guardians

Section 6 of Hindu Minority and Guardianship Act, 1956 provides for those who are entitled to be the natural guardian in respect of a Hindu minor as well as his/ her property. This excludes the undivided interest of the minor in a joint family.

The natural guardian of a Hindu boy and an unmarried girl will be their father, and after the death of the father, their mother.
The custody of a Hindu minor will ordinarily be with the mother if he/ she has not completed 5 years of age. This implies that their natural guardian will be their mother.
If the minor is an illegitimate boy or an illegitimate unmarried girl, then their mother will be their natural guardian, and after the death of the mother, their father.
The husband will be the natural guardian of a Hindu married girl.

Furthermore, the provisions of the Act will not be applicable if the person ceases to be a Hindu or the guardian has renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi.)

It is pertinent to note that the expressions father and mother do not include a stepfather and a stepmother.

In the case of Arun Kumar vs. Chandrawati Agrwal (1978), the Allahabad High court observed that Section 6 of the Act excludes a Hindu minor who has a natural guardian as provided for under the Act for his undivided interest in joint family property. Therefore, this excludes a natural guardian as provided for under the Act for permission of the court to alienate the property of the minor. This implies that, as per Hindu law, a father or a natural guardian can alienate the minor’s interests in coparcenary property, subject to conditions including legal necessity, benefit of the estate, indispensable duty, etc.

Rights and liabilities of a natural guardian

Section 8 of Hindu Minority and Guardianship Act, 1956 provides for the following powers of the natural guardian:

The guardian can take all the necessary and reasonable steps for the benefit of the minor or his/ her estate. However, the guardian is not empowered to bind the minor by personal covenant.
The guardian cannot mortgage, charge, or transfer the immovable property of the minor by way of sale, gift, exchange or otherwise without the permission of the court.
The guardian is not empowered to lease the immovable property of the minor for a period of more than 5 years or where the lease ends one year after the minor attains majority.
The court does not empower the guardian to sell the immovable property of the minor unless the same is necessary for the benefit of the minor.

In the case of Manik Chandra vs. Rani Chadra (1981), the Supreme court of India observed that the terms “necessity” and “advantage” of a minor have a wide connotation and the courts are empowered to widen their scope depending upon the facts and circumstances of the case.

Furthermore, in the case of Vishwambhar & Ors vs. Laxminarayan (2001), the Supreme court held that selling a minor’s immovable property without obtaining prior permission from the court is voidable at the instance of the minor or any other person who is claiming the immovable property on behalf of the minor.

The guardians have certain rights and liabilities, including the right to represent the minor in litigation, receive compensation for the legal expenses incurred by the minor from his/ her property, sue the minor after he attains majority to recover the expenses incurred by him, and refer the matters to arbitration if the same is in the best interest of the minor.

Further, since legally the guardian is a fiduciary, he is personally liable for the minor in case of breach of trust. The guardian is not entitled to any compensation unless the same has been specified in the will of the minor. A guardian does not have the authority to take possession of the minor’s property adversely and has the liability to render all accounts and manage the affairs prudently.

Section 12 of Hindu Minority and Guardianship Act, 1956

The provision provides that in cases where the minor has an interest in the property of the joint family and such property is under the management of an adult member of the family, a guardian cannot be appointed for the minor with respect to that property.

Section 12 of the Act has to be read with Section 6. The latter stipulates those who are entitled to be the natural guardian of a minor.

Section 12 provides for the appointment of a guardian of a minor who has an undivided interest in joint family property which is under the management of an adult. It saves the inherent jurisdiction of the High court to appoint the guardian of a minor’s interest.

In other words, the provision provides that where the undivided interest of the minor is under the management of an adult member of the Hindu joint family, the guardian cannot be appointed with respect to that interest. However, in cases where the property of the minor is not under the management of the adult member, a guardian can be appointed. The proviso provides that such an appointment can be made only by the High court exercising jurisdiction in the matter.

Rules of Mitakshara School

Section 12 of the Act is closely confined to the Mitakshara School of Law. This is because the provision uses the expression “an undivided interest”. This implies that the interest of the coparcener is not ascertained and defined, unlike in Dayabhaga school of law, where their share is specified.

Furthermore, the provision is considered to codify the old Hindu laws This is because the Karta of the joint family is the one with whom the entire management of the joint family property is vested. This includes the interests of the minors.

Role of the Karta

The Karta of a joint Hindu family has a unique position under Hindu law. The powers of the Karta and the guardian were developed from the principle that if liability is incurred by one on behalf of another in the circumstances where it is justified, then the person on whose behalf the liability was incurred is liable.

The Karta and the natural guardian could alienate the property for legal necessity and for the benefit of the estate. The only distinction is that the Karta can alienate the property in cases of indispensable duties, while the guardian has no such power.

Karta’s power of alienation

The power of the Karta and the guardian of a minor is based on certain verses of the Mitakshara School of Law. The general rule laid down by Vijnaneshwara is as follows:

“Therefore, it is settled point that property in the paternal or ancestral estate is by birth, (although) the father has independent power of disposal of effects of other than immovables, for indispensable acts of duty and for purposes prescribed by texts of law, as gifts through affection, support of family, relief from distress and so forth: but he is subject to the control of his sons and the rest in regard to the immovable estate, whether acquired by himself or inherited from his father or other predecessors; since it is ordained, though immovable or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They who are born and they who are yet unbegotten, and they who are still in the womb, require the means of support, no gift or sale should, therefore be made. “‘

Vijnaneshwara recognises certain exceptional cases where joint family property may be alienated. These include apatkale or the time of distress, kutumbarthe or for the sake of the family and dharmarthe or the performance of indispensable duties.

Legal necessity

The Karta has the power to alienate the joint family property when the same is required for a legal necessity. This has been established by the Privy Council through various decisions.

In the case of Hunoomanpersuad Pandey vs. Mussamat Babooee Munraj Koonweree (1856), Lord Justice Knight Bruce made certain landmark observations that are now observed as the basis of law. He held that under Hindu law, the manager of an infant heir has a limited and qualified power to charge an estate that is not his own. The same can be exercised rightfully in the hour of need or for the benefit of the estate. However, in cases where a prudent owner would make a charge to ensure benefit to the estate, the bona fide lender is not affected by the mismanagement of the estate. The Privy Council used the term “guardian” to describe someone who is in management of the estate and has the power to alienate the properties of the minor for a legal necessity or for the benefit of the estate.

Furthermore, in the case of Sahu Ram Chandra vs. Bhup Singh & Others (1917), the Privy Council observed that the general principle is that the minor is at liberty to affect or dispose of the joint property if it is for purposes that dominate necessary purposes.

These demonstrate the cases where the Karta has the power to alienate joint family property. Vijnaneshawara treated this as an exception to the fundamental rules of the Mitakshara School of Law.

The general principle of law is that the Karta does not have the power to alienate the joint family property except in certain exceptional circumstances. These case laws provide for exceptional circumstances, including legal necessity and the benefit of the estate.

The Privy Council used the expressions “need” and “benefit of estate” in the case of Hanuman Prasad. They held that although these terms have not been precisely defined, Vijnaneshwara’s expressions, Apatkale, Kutumbarthe, and Dharmarthe were converted into legal necessity, benefit of the estate, and acts of indispensable duty, respectively.

In contemporary times, a Karta is understood as a prudent manager of everything that is done in the furtherance of a family’s advancement or to prevent losses. Furthermore, he cannot convert the family property into money without replacing it with more beneficial properties. For example, alienating family property to start a new business cannot be justified by the legal necessity or benefit of the estate, even in cases where it increases the income of the family.

Indispensable duty

The term “indispensable duty” refers to the performance of those acts that are considered to be religious or pious. Vijnaneshwara gave an instance of the same being referring to dharmarthe, i.e., the obsequies of father and added the expression “or the like ”. This implies that the term would include all the indispensable duties of the father, including shradha, Upanayanama and the performance of other necessary ceremonies.

As per Hindu law, performing the marriage of sons and daughters of the family is an indispensable duty of the father. Furthermore, performing religious duties and alienating debts are considered indispensable duties under Hindu law.

The Privy Council in Gangi Reddi vs. Tammi Reddi (1927) observed that if property is alienated for performing an indispensable duty, then such alienation is valid. However, it is necessary that the performance of the duty be obligatory and not of a personal nature.

Gifts of love and affection

The Karta has the power to transfer reasonable portions of immovable and movable property to a coparcener or a female of the joint family who is entitled to maintenance. When the father is the Karta of the joint family, he can alienate the property for two additional purposes, including gifts of affection and satisfaction of debts.

In simpler words, the Karta of the joint family can alienate the joint family property for legal necessity, benefit of the estate, or indispensable duty, and if the Karta is the father, then for making gifts of affection and for discharging debts.

It is pertinent to note that the Karta is not the guardian of the minor, even though the undivided interest of the minor is under the care and control of the Karta. He has the power to alienate the joint family property, and his authority cannot be questioned, curtailed, limited or deferred.

Power of a high court to appoint a guardian under Section 12 of Hindu Minority and Guardianship Act, 1956

The proviso to Section 12 of the Act provides that the High court has the jurisdiction to appoint the guardian of a minor who will be responsible for looking after his interest in the Hindu joint family. It is crucial to note that the proviso does not confer any new jurisdiction on the High court. This implies that if a particular High court did not have jurisdiction before the commencement of this Act, it will not have jurisdiction under the proviso.

Furthermore, Section 3 of the Guardians and Wards Act, 1890, preserves the jurisdiction of the High court with respect to minors. It provides for the general jurisdiction of the High court over minors who are living within such jurisdiction, irrespective of whether such a minor is a coparcener or not.

Case laws surrounding Section 12 of Hindu Minority and Guardianship Act, 1956

Dhanasekaran vs. Manoranjitham (1992)

In this case, the High court of Madras shed light on Section 12 of the Act and explained that no guardian shall be appointed for the minor in respect of an undivided interest in joint family property if the same is under the management of an adult member of the family. The court clarified that the adult member of the family can either be a male or a female member. In the absence of an adult member in the family for the management of the property, the restriction under Section 12 of the Act will not be applicable. However, in cases where the adult member of the family is available to manage the interests of the minor in the family, the court is prohibited from appointing a guardian for the minor’s undivided interest in the joint family property. In other words, the court explained that Section 12 of the Act imposes a prohibition against the appointment of a guardian for a minor by a court other than the High court in cases where the property is under the management of an adult member of the family.

Smt. Preeti Arora vs. Subhash Chandra Arora and Another (2024)

In this case, the appellant approached the court under Section 8 of the Act, seeking permission from the court to sell the share of his daughters in the property to ensure a better future for her minor daughters. However, the Trial court rejected the same on the ground that there might be a possibility of letting out the property for rental income instead of sale to avail the required resources for ensuring the secure future of the minor daughters. However, the Allahabad High court observed that the application filed by the appellant was wrongly rejected. Furthermore, the High court observed that Section 8 of the Act does not apply in cases where the minor’s interest in joint family property is disposed of, as per Sections 6 and 12 of the Act. The High court thus allowed the appeal of the appellant and observed that an adult head of the Hindu family does not require permission from the court to dispose of the undivided interest of a Hindu minor in the joint family property.

Conclusion

The Act plays a crucial role in protecting and safeguarding the interests and rights of Hindu minors. The same is evident from the different provisions of the Act, which prevent any unauthorised individual from taking advantage of a minor’s property. The lawmakers established a strong mechanism by designating a guardian legally to secure the rights and possessions of a Hindu minor. What is pertinent is how the lawmakers also inserted Section 12 of the Act, which restricts the appointment of a guardian in case there is an adult member in the family to manage the interests of the Hindu minor in the undivided joint family property, thus, striking a perfect balance between establishing a framework that protects the minor under all circumstances.

The law surrounding guardianship acknowledges the vulnerabilities of minors and ensures physical and financial protection for them.

Frequently Asked Questions (FAQs)

Section 12 of the Act is based on which school of law?

Section 12 of the Act is based on the Mitakshara school of law, which is derived from the Yajnavalkya Smriti, authored by Vijnaneswara. The same is evident from the terminology of the provision, as is evident from the use of the expression “an undivided interest,” which implies that the interest of the coparcener is not ascertained and defined, unlike in Dayabhaga school of law, where their share is specified.

What does the expression “adult member of the family” under Section 12 connote?

The expression “adult member of the family” under Section 12 of the Act connotes that there is a restriction against the appointment of a guardian for a minor by a court other than the High court in cases where the property is under the management of an adult member of the family. This adult member can either be a male or a female, which implies that it need not necessarily be the father, but can be the mother of the minor as well.

Who can alienate the joint family property of the minor and under what circumstances?

The Karta is empowered to alienate the joint family property of the minor. However, this is not absolute in nature and can be done only in cases of legal necessity, the benefit of the estate, or for the performance of indispensable duties.

References

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AI-driven predictive analytics for retail inventory management

By

Vanshika Kapoor

-

June 23, 2024

0

This article was written by Nisha Sharma, pursuing the Diploma in Content Marketing and Strategy Course from Skill Arbitrage, and edited by Koushik Chittella.

Table of Contents

Introduction

The dynamism of retail businesses is a very well-known fact everywhere. The ever-fast-changing businesses, with many complex activities on the ground, involve multiple stakeholders, intricate logistics, and different levels of demand uncertainty. Owing to technological advancements, the retail industry has been going through a dramatic shift in gaining deeper insights into consumer behaviour, anticipating demand fluctuations, or streamlining inventory management to reduce costs and improve customer satisfaction.

Integrating advanced technologies like artificial intelligence (AI) into supply chain and retail inventory management offers retail businesses unprecedented opportunities for strategic decision-making to increase efficiency, optimise processes, and keep meeting the ever-changing demands of consumers. AI’s consumer demand prediction helps retailers deliver the right products to end consumers in stores and helps manufacturers predict the quantity of raw materials to be considered for production. Retailers gain deeper insights into consumer behaviour for predicting demand fluctuation and streamlining inventory management, resulting in reduced costs and improved customer satisfaction with the use of AI methods. Thus, AI’s role in the end-to-end supply chain and retail inventory management appears promising.

AI-powered predictive analytics increases efficiency in inventory management for the speedy fulfilment of consumers’ demands for personalised experiences and seamless interactions. Retailers are under pressure to cater to the personalised demands of consumers while also maintaining profitability and sustainability. From demand forecasting to inventory optimisation to the delivery of the product, AI’s predictive analytics feature assists retailers in analysing vast amounts of accumulated data, automating routine activities, and optimising decision-making processes. In the following accompanying sections, we are going to drill down into the role of AI-driven predictive analytics while managing inventories in the retail industry.

Understanding Retail Inventory Management

It is the process of streamlining the demand of the consumer and the supply of the retailer while managing the excess of both the demand and the supply, reducing the associated costs, and maximising the liquidity in profits. Effective retail inventory management minimises inventory carrying costs and gives a better understanding of sales patterns. Retailers have more data to facilitate their business operations through the use of inventory management systems. The process of retail inventory management enables retailers to have access to information on the following:

Product locations
Quantities of the product to be considered
Consumer behaviour towards the product
Maintaining the stock of the product
Environmental factors affecting the sale of the product
Performance of the products by location and sales medium
Profit margin gained by the product

Usage of retail inventory management

Following are the reasons why inventory management is a necessity in today’s retail industry:

Reduces the costs of having excess inventory
Minimises the potential for product to be out-of-stock
Improves the Profit Margin
Prevents product from wastage and expiration
Enhances multi-channel and omnichannel performance and order fulfilment
Improves connectivity between the processes and increases efficiency
Reduces the unavailability of the products in demand
Makes Supply Chain Management easy
Boosts customer satisfaction
Improvement of prediction accuracy

10 basic steps in retail inventory management

Below is an image representing 10 Basic Steps in Retail Inventory Management:

Source: Oracle Netsuite

The above-mentioned steps in the illustration are as follows:

Step 1: Create a centralised record of all products

Step 2: Identify stock location

Step 3: Do regular and accurate stock counts

Step 4: Combine sales and inventory data

Step 5: Create a purchasing process

Step 6: Establish a method for markdowns

Step 7: Build a stock-receiving process

Step 8: Create a system for returns

Step 9: Determine a dead stock procedure

Step 10: Pick your inventory KPIs (Key Performance Indicators)

Role of AI in retail inventory management

AI’s power and capabilities are not hidden anymore. With time, one of the fastest-evolving technologies (AI, in this case) is also becoming powerful, and its contribution to businesses is commendable; they cannot shy themselves away from it. It is quite imperative to mention that AI has started making its presence in retail inventory management as well. As per an article published by Precedence Research, experts predict that there is going to be a steep rise in global AI in the retail market from just $8.41 billion in 2022 to $45.74 billion in 2032. In the same report, it is mentioned that, based on application, the retail inventory management segment captured around 16% of revenue share in 2022.

Keeping track of stock levels, predicting customer demands, and accordingly maintaining optimal levels of inventories in real-time are some of the responsibilities that AI is capable of performing in the current age. This helps retailers reduce costs, save money, and keep in-demand products in stock, leading to customer satisfaction and retention, thus increasing sales and profitability.

Benefits of AI in retail inventory management

Some of the distinct benefits that AI provides in retail inventory management are

Optimised Inventory avoids stock excess or stock deficiency
Accurate forecasting resulting from detailed data analysis
Reducing waste by identifying slow-moving or excess stock
Minimising holding costs by ensuring that businesses stock the right quantity of products
Efficient Automation saves time and resources
Real-time insights for enhanced and quick decision-making
Improved customer satisfaction by making the product available when they need

Challenges faced by the usage of AI

Data quality and availability. The quality of data determines the quality of prediction and, thus, the quality of decision-making.
Cost of implementation. Implementing AI-based solutions can be hefty on the companies’ pockets, as this involves expensive technological infrastructure supported by trained staff.
Skilled personnel. Recruiting specialised skill personnel or upskilling existing ones can be challenging for some businesses.
Integration with existing systems. Integrating AI solutions with existing systems can be complicated, and ensuring a seamless connection is a critical consideration.
Security and privacy. Using robust AI to counter cyber threats should be considered while handling sensitive data, which can otherwise be alarming in terms of security and privacy.

Understanding predictive analytics in retail businesses

Predictive analytics: meaning

Predictive analytics is the practice of using historical data to analyse and forecast customer demand and company performance by running a series of practical experiments to improve customer experiences and satisfaction. Predictive analytics is used to design promotions for targeted, interested shoppers and provide them with valuable suggestions and information. Increased sales leading to maximised profit, fine-tuned targeting for marketing campaigns, a better customer experience leading to increased customer loyalty, and better staff scheduling are some of the common benefits of predictive analytics in retail businesses.

Benefits of using Predictive Analytics

The following illustration shows the data-driven benefits of using predictive analytics for retailers:

Source: https://mastechinfotrellis.com/blogs/ai-analytics-and-data-sciences/predictive-analytics-in-the-retail-industry

The explanation of the above illustration about the benefits that predictive analytics offer is as follows:

Customer retention & identification: It helps retailers identify and retain existing customers and also identify prospects to attract them with valued offers.
Inventory planning and risk mitigation: Retailers can use predictive analytics to plan inventory well to avoid losses.
Personalised customer service: It assists retailers in assessing consumers to provide them with services tailored to their needs.
Accurate real-time insights: With the help of predictive analytics, retailers can continuously evaluate the purchasing behaviour of their consumers to make the right decisions.

Major challenges

The major challenges here would be:

Determining the right pricing;
Using real-time data to decide on the quantity, location, and type of stock to be maintained
Recommendation engines analyse enormous available data sources and extract and present decision-making information.
Revenue forecasting based on historical purchasing behaviour.

Integrating AI and predictive analytics

As per a report featured by Chris Kelly on LinkedIn: “A major retail chain implemented AI-driven predictive analytics for inventory management. The system analysed years of sales data, seasonal trends, and purchasing behaviours. The result? A 20% reduction in stockouts and a 15% decrease in excess inventory.”

There is a constant flux experienced by retailers while managing inventory. This could be due to a lone or a combination of issues like unpredictable demand, inefficient procurement, inventory imbalance, store replenishment, on-shelf availability, or warehouse replenishment. AI-driven predictive analytics empowers retailers to make data-driven decisions for improved operational efficiency and maximum profitability. So that the visit of the customer to the retail outlets becomes a wonderful and fulfilling experience for them and the retailers, optimisation of the inventory is very significant. The stores’ shelves having all kinds of attractive product items are the reasons for the happiness of the customers and are crucial for successful retailers. Stock deficiency can hurt finances, leading to loss of revenue and customers. Stock excess leads to an increase in storage space along with the carrying cost. Optimisation is important to fill the gap between demand and supply to avoid things like stock deficiency and stock excess.

The Inventory Management System powered by AI equips retailers to maintain inventory levels optimally in real-time, predict customer demand, minimise stock excess and stock deficiency, and thus ensure the availability of the right products at the right time, leading to increased sales. AI-driven predictive analytics carries the potential to predict demand and adjust inventory levels accordingly following the analysis of historical and real-time data, existing market trends, environmental factors, and social media sentiments. Retailers feel empowered to have a competitive advantage by gaining actionable insights into the rapidly fluctuating market and can now anticipate future trends and make informed decisions accordingly. AI-driven predictive analytics provide retailers with vast datasets for analysis, patterns, and trends in consumer behaviour to make accurate predictions. Retailers can use AI-powered predictive analytics to

forecast demand
forecast procurement optimisation
optimise inventory management
return forecasting
predict store replenishment
assortment optimisation
on-shelf product availability
promotion forecasting
predict warehouse replenishment

AI-driven predictive analytics in retail is the result of the efforts of a conglomeration of technologies like machine learning algorithms, natural language processing (NLP), and computer vision. These three technologies together empower retailers to extract valuable insights from data, enhance customer experiences, and optimise operational processes. Systems can learn from historical and real-time data and improve their predictions over time with the help of machine learning algorithms. Retailers can use machine learning for product recommendations, pricing optimisation, and fraud detection.

NLP enables systems to interact in natural language while improving communication between retailers and customers. Chatbots and virtual assistants are empowered by NLP, which enhances customer support and engagement in online and offline environments. Analysing customer reviews, social media interactions, and feedback and providing insights into customer sentiments are also features supported by NLP. Retailers can adjust strategies based on sentiment analysis, responding to both positive and negative feedback.

Systems can analyse and interpret visual data, contributing to a deeper understanding of customer behaviour because of the underlying activities of computer vision. Whether it is shelf monitoring, tracking customer movements, or implementing innovative in-store experiences, retailers use computer vision to accomplish these tasks. Customers can find products by uploading images, enhancing the search and discovery process using the visual search capabilities of computer vision.

Benefits and outcomes of using AI-driven predictive analytics

There are several benefits to using AI-driven predictive analytics while managing retail inventory:

Enhanced Forecasting Accuracy: The forecasting errors are reduced, and accuracy is improved, leading to better inventory planning and reduced stockouts.
Cost Reduction: Minimised carrying costs and reduced excessive safety stock due to optimised inventory levels.
Increased sales and customer satisfaction: Avoiding stockouts and the availability of the right products at the right time results in increased sales and enhanced customer satisfaction, thereby improving the overall shopping experience.
Improved Operational Efficiency: Streamlining processes, reduced manual intervention and provided real-time insights, allowing retailers to focus on strategic initiatives.
Scalability and adaptability: An AI model can tune itself to changes in patterns of demand, seasonal variations, and market fluctuations.

Case studies of successful implementations of AI

Below are a few examples of successful AI implementations at world-renowned big giants:

Amazon uses machine learning algorithms to process users’ browsing behaviour, purchases, and preferences. Remarketing these specific target audiences by offering customised product suggestions has increased the company’s sales along with its customer base.
Alibaba’s AI chatbots on its e-commerce platforms give users personalised shopping experiences through customised assistance and recommendations. By streamlining the shopping process, offering real-time support, and improving overall customer experience, customer satisfaction is enhanced.
AI is predominantly used by Walmart, particularly for inventory management and customer service. By constantly evaluating customer buying habits and the inventory position, any excess stock is reduced by optimising inventory levels. The use of AI bots enhances storefront stock monitoring and control.
Starbucks uses AI algorithms to make sense of patterns in customer orders, preferences, and historical information, which helps in the accurate anticipation of what customers order, reducing their waiting times, making operations more efficient, and enhancing in-store personalisation.
Zara has adopted AI to analyse real-time sales data, social media inclinations, as well as external elements to predict demand. AI has empowered Zara to optimise inventory levels, thereby eliminating redundant stock while tracking consumer tastes more responsively in a bid to have flexible inventory management operations.

Future of AI-driven predictive analytics

AI-driven predictive analytics has already proven to be promising in the world of retail inventory management. This revolutionary implementation is meant to assist retailers in managing inventory while forecasting demand, managing stock levels, and catering to fluctuating and evolving consumer preferences and demands. AI-driven predictive analytics lets retailers address potential equipment failures before they disrupt inventory operations. In this way, retailers can minimise the shutdown, optimise resource allocation, and ensure uninterrupted inventory flow. The evolving components of AI (machine learning, NLP, and computer vision) are going to produce sophisticated algorithms that aspire to enhance retail inventory forecasting, providing accurate demand predictions and comprehensive market trend analysis.

The evolving AI technology is going to seamlessly and undisputedly integrate with Enterprise Resource Planning (ERP) systems, aligning procurement, inventory control, broader supply chain mechanisms, marketing, and after-sales services for retaining clients or customers and maintaining long-term relationships with them. AI-driven predictive analytics efficiently supports dissecting and understanding customer behaviour, preferences, and purchasing patterns, which helps manage the inventory well. This approach not only assists retailers in pricing strategies but also supports them in refining promotional activities to align more closely with consumer demands. Such technological advancements play a pivotal role in reaching data-centric, highly adaptive inventory management paradigms that vouch for operational efficiency and agility, customer satisfaction, and ultimately, maximised profitability in retail.

Conclusion

In this article, we have explored the dynamics of inventory management in retail while recognising the emerging technological trends of AI-driven predictive analytics. AI-driven predictive analytics support retailers in unprecedented ways for handling regular inventory-related issues like unpredictable demand, inefficient procurement, inventory imbalance, store replenishment, on-shelf availability, or warehouse replenishment. The fusion of advanced technologies like machine learning algorithms, NLP, and computer vision has enhanced the strategic decision-making capabilities of retailers to cater to the immediate needs of consumers, reduce unnecessary costs, and increase the profit thereof. With constant technological advancements, retailers are increasingly participating in learning and adopting AI-driven predictive analytics for anticipating market trends and predicting consumer behaviours to provide them with personalised services. AI-driven predictive analytics also helps retailers in decision-making by exploring demand patterns, market trends, pricing strategies, and overall operational efficiency based on historical and real-time data. One of the beautiful aspects of implementing AI-driven predictive analytics is that they are naturally and vigorously adaptive to changing patterns of demand, seasonal variations, and market fluctuations. These technologies can integrate seamlessly into the existing system, empowering retailers to understand their customers and create innovative solutions such as personalised visual searches and automated checkout experiences for them. We also discussed the prospects of the seamless integration of AI-driven predictive analytics with efficient and large systems like ERP.

References

Selling across borders : a guide to CISG provisions and its applicability

By

Vanshika Kapoor

-

June 23, 2024

0

This article was written by Ashwin Jain, pursuing the Diploma in International Contract Negotiation, Drafting, and Enforcement Course from LawSikho, and edited by Koushik Chittella.

Table of Contents

Introduction

CISG, or the United Nations Convention on Contracts for the International Sale of Goods, is a treaty between the contracting states that governs the sale of goods across international borders. Contracting states are those member states of the United Nations that have signed and ratified the CISG in their local jurisdictions. As of 2024, it has been adopted by 97 contracting states of the UN. Some of these states include Argentina, Australia, Bahrain, Brazil, Canada, China, Finland, France, Germany, Israel, Italy, Japan, Luxembourg, the Netherlands, New Zealand, Saudi Arabia, Singapore, and the United States of America (USA). The CISG was adopted in the sixth special session of the General Assembly of the United Nations in the year 1980. It was considered that the development of international trade on the basis of equality and mutual benefit would develop friendly relations between the States. It was also opined that the adoption of uniform rules for international sales of goods would remove legal barriers to international trade and further promote international trade.

Applicability of CISG to an agreement

As the name suggests, the CISG is applicable to international transactions and not domestic transactions. It is applicable in two cases;

When the states are Contracting states, or
Upon application of principles of international law to any transaction, the resulting location lies within a contracting state.

Thus, in any transaction wherein the parties are transacting from a contracting state or upon application of principles of international law, the municipal law applicable to the contract is that of a contracting state. Further, while determining the applicability of the CISG convention on any contract for the sale of goods, it should be indicated either in the contract, any information disclosed prior to the execution of the contract, or from previous dealings between the same parties that the place of business of the parties is in different states. Although the parties are in fact from different contracting states, if the contract is silent or it is not determinable from any information disclosed either in the present contract or any previous dealing between the same parties, it shall be disregarded while determining the applicability of the CISG convention. Also, the nationality of the parties and the civil and commercial character of the parties will be disregarded while assessing the applicability of the CISG convention. According to Article 2 of the CISG Convention, it also does not apply to the transactions mentioned below:

The goods purchased for personal or household use. The seller must not know, nor is the seller supposed to know, that the buyer is purchasing the goods for personal and household use.
Goods purchased by auction;
On execution or otherwise by authority of law;
Purchases of stocks, shares, investment securities, negotiable instruments, and money;
Purchases of ships, vessels, hovercraft, and aircraft;
Purchase of electricity.

Goods only bought for personal or household use shall be considered an exclusion from CISG’s application. If the goods bought are capital goods like plant and machinery, such purchases can be considered to be covered under the CISG treaty. It also provides various kinds of exclusions from the ambit of the CISG convention. In Article 2(A), it is mentioned that only goods purchased for personal or household use are excluded from the applicability of the CISG convention. If capital goods like custom built machines and equipment are purchased from an international seller, for use in the plant or factory of the buyer, the CISG convention may be applicable to such a transaction. Also, all trading transactions wherein the goods will not be consumed shall lie within the domain of the CISG convention.

As per the Convention, all goods sold that will have to be manufactured by the seller/supplier before being supplied to the buyer shall be considered sales. The exception to this rule is given under Article 3(1) of the CISG Convention, which mentions that when the buyer provides substantial materials for the production or manufacture of the goods that shall be sold by the seller. The CISG Convention is also applicable in cases where the goods supplied by the seller also include labour or other services provided by the seller. The exception to this is when the majority of the obligations on the part of the seller consist of the supply of labour or other services rather than the supply of goods.

In summary, the application of CISG provisions on an agreement is contingent upon the fulfilment of the following conditions;

Any party to the agreement belongs to a contracting state, or the application of private international law will lead to the application of a law of a contracting state.
Only agreement for the trade of goods that does not include specific exceptions mentioned in Article 2.
The agreement should be primarily for sale of goods in case of supply of goods along with the services.
The buyer should not provide substantial materials as raw materials for the production of goods by the seller.
The parties to the agreement should not expressly exclude the applicability of the provisions of the CISG.

What happens when CISG provisions are applicable

CISG provisions provide a variety of benefits, such as clarity with regards to the obligations of parties irrespective of their jurisdiction, cost savings, and the reduction of time in negotiations. This includes negotiations with regards to the governing law of the agreement, flexibility and party autonomy in the application of the provisions, and consistent terminologies for agreements across jurisdictions, which results in convenience while interpreting the agreement. Once the state ratifies CISG, it is bound by the provisions of CISG. The provisions of the CISG become analogous to the provisions mentioned in the domestic law of the state. After the ratification, domestic courts as well as any arbitration institution wherein the law governing the agreement is a contracting state under the CISG will apply the CISG provisions to the agreement.

The Henan High People’s Court in the case Ideal Rulo ve Firça Sanayi A.S. v. Xinyang Hengda Pork Processing Co., Ltd.” held that, although the application of the ‘closest connection test’ by the Luohe Intermediate People’s Court to determine the Chinese law as the applicable law was incorrect, the application of the Chinese law as the applicable law in the present instance as the parties expressly chose the Chinese law exclusively while arguing their cases before the Luohe Intermediate People’s Court and the same was not objected to during appeal to this court.

In the case of P.H. PODLASIAK Andrzej Cylwik vs. Yiwu Entuo Import and Export Firm, the Intermediate People’s Court, Jinhua, held that the dispute arose from a contract of international sale of goods, and the parties were residents of the member states of the CISG. Thus, the CISG should prevail in the absence of an express choice of law. It was also held in the same case that since both parties made reference to Chinese law before the court of first instance and no objection was made with regards to the applicable law, it can be considered an implicit choice of law by the parties regarding this foreign-related civil relationship. For this reason, this court maintained the decision of the lower court while improving upon its reasoning.

In these cases, the act of not utilising CISG treaty provisions to argue the case has been considered an implicit mutual consent of the parties to exclude the applicability of the CISG provisions. In any other case, the CISG provisions would be applicable, as the People’s Republic of China has also been a signatory to the CISG convention since 1988. The CISG Provisions are not a complete code that governs every dispute that arises between the parties. For instance, whether the consent provided by the parties is valid is not provided within the CISG treaty provisions, and in what circumstances can a contract be voidable by any party or be void ab initio. The provisions of the CISG are applicable to a dispute relating to any contract between the parties if any of them belong to a contracting state and the parties did not expressly refuse the application of the CISG provisions to the agreement.

Applicability of domestic laws to the agreement

According to Article 7(2) of the CISG, for the provisions of the applicable domestic law to be applicable to an agreement governed under the CISG, the following conditions must be fulfilled:

The question of law or fact should be related to a matter that is governed by the CISG convention.
The provisions of the CISG convention should be unable to expressly decide the question of law or fact.

CISG and domestic laws

Once such a question of law or fact is discovered, wherein the provisions of the CISG treaty fall short of providing a concrete answer, references shall be made to the general principles on which the CISG treaty is based. If such principles are absent or do not provide an answer to the question of law or fact, in that case, a reference can be made to the applicable rules of private international law.

Thus, when agreements are interpreted and adjudicated upon the basis of the provisions of the CISG treaty, references may also have to be made to the principles of private international law and domestic law as applicable to the agreement as per the rules of private international law. This creates ambiguity and uncertainty in the minds of the parties and deters them from adopting the CISG treaty provisions to govern their cross-border contracts. Also, the rules and principles on which the CISG provisions are interpreted are so obscure that they fail to produce a uniform interpretation consistently. The CISG Convention allowed selective application of the CISG provisions by many contracting states, which resulted in inconsistent outcomes for uniform application of the CISG treaty provisions. When compared to a domestic law, CISG lacks a procedural law, which provides certain standards like burden of proof, standard of proof, and the flow of proceedings. In the case of CISG, these questions are in the domain of the arbitral process or dispute resolution, which results in ambiguity and uncertainty, leading the parties to choose a domestic law that provides greater certainty and predictability.

Since there is no common forum, court, or tribunal for the resolution of the disputes that arise from the agreement governed by the CISG regime, the interpretation and application of the CISG provisions depend upon the interpretation of these provisions by the judges of various national courts. The judges of the national courts are also not bound to accept the judgements previously delivered by the court or forum of a different nationality. This will negate the principle of stare decisis in such cases and add another dimension of unpredictability to the final outcome of any proceedings wherein the agreement is governed by the provisions of the CISG. Also, to add to this confusion, there is no appellate body or provisions for appealing the judgment provided by the court or tribunal. Because of this, the interpretation of the CISG provisions can not be uniform and will always be dependent on the judge/arbitrator who shall be presiding over the proceedings.

The CISG has been in existence since 1980 and has been available for private parties since 1988. Although it provides a neutral set of rules that provide rights and obligations to the parties in a balanced manner, the CISG failed to become the default international law for the regulation of cross-border contracts. This is because it does not possess the complete spectrum of rules and regulations to cover all foreseeable issues that arise in cross-border contracts, which results in ambiguity and reliance on domestic laws as per the rules of private international law.

How to avoid the applicability of CISG provisions

Parties seeking to ensure that the provisions of the CISG treaty do not apply to their cross-border agreement for the sale of goods can do so by explicitly excluding the CISG in their contract. This exclusion can be achieved through a clear and unambiguous clause in the contract that expressly states that the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to the agreement.

Including a specific clause in the contract that excludes the CISG is a common practice to avoid its application. This clause should clearly state that the parties do not intend for the CISG to govern their contract for the sale of goods. By including this exclusion clause, the parties can choose to apply a different set of laws or rules to govern their agreement, ensuring that the CISG does not inadvertently become the governing law. Additionally, parties should ensure that the choice of law clause in their contract clearly specifies the applicable law that will govern the agreement. By designating a specific national law or a different set of rules to govern the contract, the parties can effectively exclude the application of the CISG and establish the legal framework under which their cross-border agreement will be interpreted and enforced.

In summary, to prevent the provisions of the CISG treaty from applying to their cross-border agreement for the sale of goods, parties should include a clear exclusion clause in their contract that expressly states that CISG will not govern the agreement. Additionally, specifying the applicable law in the choice of law clause will further solidify the exclusion of CISG and establish the legal framework for their contractual relationship.

Conclusion

The CISG is a model, impartial, and balanced set of rules that can help parties when they are negotiating the governing law of an agreement. However, in ninety-seven contracting states, CISG is applicable by default, which can complicate the dispute resolution process and create variable outcomes. As CISG only covers limited topics, the agreements on which CISG is applicable have to rely on the domestic law mentioned in the agreement or the state that will be determined as per the rules of private international law. If the law determining the dispute resolution proceedings cannot be ascertained prior to the execution of the agreement, it will lead to variable and predictable outcomes. In addition to the above, the principle of stare decisis is not necessarily applicable to the CISG provisions, and it may lead to an unpredictable interpretation of the provisions, abandoning the established judicial precedent on any subject. This deters the parties from adopting the CISG as the governing law of the agreement in cases of cross-border sales. Because of the above issues, CISG did not become the default law for the cross-border sale of goods.

References

United Nations Convention on Contracts for the International Sales of Goods UNITED NATIONS PUBLICATION Sales No. E.10.V.14 ISBN 978-92-1-133699-3 available at https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/19-09951_e_ebook.pdf
Ideal Rulo ve Firça Sanayi A.S. v. Xinyang Hengda Pork Processing Co., Ltd. Case no. (2017) Yu Min Zhong No. 1119 decided by High People’s Court of Henan (China) on 15^th October, 2018, indexed as CISG-online 4113 English abstract: https://cisg-online.org/files/cases/10027/abstractsFile/4113_27217868.pdf original judgement: https://cisg-online.org/files/cases/10027/fullTextFile/4113_91867057.pdf
P.H. “PODLASIAK” Andrzej Cylwik v. Yiwu Entuo Import and Export Firm Case no. (2018) Zhe 07 Min Zhong No. 5356 decided by Intermediate People’s Court Jinhua, Zheijan Province (China) on 09th November 2018, indexed as CISG-online 4116 English abstract: https://cisg-online.org/files/cases/10030/abstractsFile/4116_33511053.pdf original judgement: https://cisg-online.org/files/cases/10030/fullTextFile/4116_87066385.pdf
The application of the CISG in Chinese Arbitration – Special Report on CISG@40 Celebration Conference by Wang Chengjie, Vice President and Secretary General of CIETAC, 25^th June, 2021 at Beijing available at: https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/the_application_of_the_cisg_in_chinese_arbitration-special_report_by_wang_chengjie_english_version.pdf
Facing the Truth: Seeing the Convention on Contracts for the International Sale of Goods as an Obstacle to a Uniform Law of International Sales by James E. Bailey; Article 1, Volume 32, Issue 2 1999, Cornell International Law Journal available at: https://scholarship.law.cornell.edu/cilj/vol32/iss2/1/

Remote work policy and cyber security

By

Vanshika Kapoor

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June 23, 2024

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This article has been written by Monisha Mukherjee Gangopadhyay pursuing a Remote freelancing and profile building program from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

The practice of employees working from a location other than their usual designated central office space is generally termed as remote work. Such de-centralized work ‘online’ could be done from the very home of the employee/employees concerned, at a shared office space or even at any public space other than the usual office space. Before the days of Skype and Zoom calls, a NASA engineer by the name of Jack Nilles laid the foundation for modern remote working when he coined the term “telecommuting” in 1973. Thanks to COVID-19 and some of its outcomes, remote work policies are no longer rare and far in between. There are arguments for and against such a mode of working from a distance, the chief among the disadvantages cited being that it arises from the point of view of data security.

Remote work and its pros and cons

Remote work policies have enabled an enhancement of work-life balance and productivity by way of leveraging technological advancements and reducing costs incurred in infrastructure. Despite this, there remains very little scope for passing over the disadvantages of remote work; the most common among them are the cyber security risks of remote work in the form of phishing, shoulder surfing, and webcam hacking, to name only a few. Another drawback to working remotely lies in the communication gap that may arise between the members of a team, which is liable to result in decreased collaboration, isolation, and eventually the loss of productivity. Instances where the employer leaves the onus of managing basic infrastructure like a proper workstation and even an internet connection to the employee himself may result in utter disaster. An ideal remote working policy should ensure that both the employer and the employees benefit from the arrangement. Hence the necessity of having clear-cut guidelines for the eligibility and job type of the concerned employees, as well as the conditions of work.

Not all countries are prone to work remotely

There are differences, however, with regard to preferences for remote work between developed and developing countries. This is mostly due to differences in tradition and culture, leadership styles and productivity from remote work. Thus, the USA encourages remote work, while Asian countries like India and Japan aren’t as bullish on remote work. Productivity reportedly decreased by 20% in Japan in the process of remote working, while it rose by about 77% in the USA and the UK.

This might be due to communication challenges and a general emphasis on office presence in Japan, as in most Asian cultures. Another strong reason why developed countries in the West have been able to handle remote work far more efficiently is because of the availability of platforms and tools for remote work, which include strong cyber security laws and policies to safeguard personal information, which are essential for remote employment.

Cyber security risks of remote working

Some of the most common cyber security risks that remote workers face are phishing and social engineering attacks, DDOS (distributed denial of service) attacks, personal device risks, shoulder surfing, cloud security misconfiguration, webcam hacking and so on. Social engineering attacks are launched by cyber criminals by using convincing e-mails, messages or phone calls to employees for the purpose of revealing sensitive information. Where remote workers among employees of concern are isolated, employees may not have immediate access to colleagues for the purpose of verifying the legitimacy of communication. Home networks are generally susceptible to cyber-attacks and malware infections. Cybercriminals often seek outdated systems as an entry point into the corporate network. Security teams can monitor and enforce security policies more effectively when the employees concerned are physically present in the office. When employees use personal devices for work, they may not have security measures up to the mark and consequently stand the chance of inadvertently exposing sensitive information, resulting in security threats to the organisation concerned. Cybercriminals with malicious intentions are often seen engaging in spying on screens for the purpose of gaining unauthorised access to sensitive information. This may happen when the employees take the liberty of working in coffee shops, airports, or any other public place. Misconfigurations in cloud services may result in the exposure of sensitive data to unauthorised persons. Thus, remote workers should be properly trained to understand the importance of proper configuration and access controls to avoid cloud security misconfiguration. Webcam hacking may take place if attackers are able to access video streams and disrupt virtual meetings. This may lead to data breaches and even reputational damage.

The way out

Employees often become complacent and ignore the best practices of cyber security. They should be educated on the potential risks of sharing personal information or work-related information on social media. Cyber security measures to avoid cyber crimes should first and foremost consist of cyber security training. Data reveals that less than 45 percent of developing countries receive cyber security training in the face of the threats of working from home. Remote workers should have proper training and be kept updated on the latest cyber threats and best practices required of them to avoid cyber crimes. Organisations must also ensure that remote workers have easy access to cyber security police and that company data is kept centrally in secure cloud-based or onsite storage systems. Strong access control measures like multi-factor authentication and role-based permissions should be implemented. There is undoubtedly a need for data encryption, both at rest and in transit, to protect sensitive information regarding the concerned organisation.

Legal respite

Last but not least, mention should be made of a few case laws in India relating to the issue of cyber security. In Shreya Singhal vs. Union of India, the Hon’ble Supreme Court of India held that the right to privacy is a fundamental right. This sets the legal framework for data protection in India. In the famous AADHAAR case (also known as Puttaswamy vs. Union of India), while the validity of the AADHAAR as an instrument of social welfare was upheld, the right to privacy of the individual was also held as a fundamental right. Hence, the provision for mandatory linking of AADHAAR numbers with bank account numbers and mobile phone SIM numbers was struck down. While recognising the right to privacy as a fundamental right, the honourable court emphasised the necessity of striking a balance between security and privacy concerns. As a result of the AADHAAR verdict, the government of India has been required to bring in stricter safeguards in the form of regulations to maintain the privacy of individuals in the country.

Regulations in India

In recent years, data security has emerged as a critical issue in India, driven by the rapid growth of digital technologies and the increasing volume of personal and sensitive data being processed and stored online. To address these concerns, the Indian government has enacted several laws and regulations aimed at protecting data privacy and ensuring the secure handling of personal information.

The Information Technology Act, 2000 (IT Act) is a landmark piece of legislation that laid the groundwork for regulating electronic transactions, data protection, and cybersecurity in India. This comprehensive framework has had a profound impact on the digital landscape of the country.

At the core of the IT Act is its focus on data protection. Recognising the importance of safeguarding personal information in the digital age, the Act mandates organisations to obtain explicit consent from individuals before collecting and processing their personal data. This provision empowers individuals with greater control over their personal information and ensures that organisations respect their privacy.

Furthermore, the IT Act establishes a robust legal framework for addressing cybercrimes. It criminalises unauthorised access to computer systems, data breaches, and cyber stalking, among other offenses. This legislative framework provides law enforcement agencies with the necessary tools to investigate and prosecute cybercriminals, thus deterring potential offenders and ensuring a safer cyberspace.

The IT Act also recognises the significance of electronic transactions in today’s interconnected world. It provides a legal framework for conducting electronic contracts, digital signatures, and other forms of electronic communication. This framework instills confidence in electronic transactions, facilitating seamless and secure digital commerce.

Moreover, the IT Act empowers the government to establish regulatory bodies and appoint cyber experts to oversee the implementation of the Act and promote cybersecurity. These measures help ensure that the Act remains relevant and effective in addressing emerging cybersecurity challenges.

Since its enactment, the IT Act has undergone several amendments to keep pace with technological advancements and evolving cyber threats. In 2008, the Act was amended to include provisions related to cyber terrorism and critical information infrastructure protection. More recently, in 2022, the IT Act was amended to enhance data protection safeguards and address concerns related to the processing of personal data by social media platforms and other intermediaries.

The IT Act has played a pivotal role in shaping India’s digital ecosystem, fostering trust in electronic transactions, and safeguarding the privacy rights of individuals. As technology continues to evolve, the IT Act will undoubtedly require further amendments to address emerging challenges and ensure a secure and vibrant cyberspace for all stakeholders.

In addition to the Information Technology Act, 2000, there are a number of other laws in India that deal with data protection. These laws include:

The Right to Information Act, 2005
This act gives individuals the right to access information held by public authorities. It aims to promote transparency and accountability in government functioning and empower citizens by providing them with access to information that they are entitled to. The act also provides for a mechanism for appealing decisions of public authorities regarding the disclosure of information.
The Privacy Act, 2018
This act protects the privacy of individuals in relation to the processing of their personal information. It regulates the collection, use, disclosure, and retention of personal information by both government and private entities. The act also provides for the establishment of a Privacy Commissioner to oversee compliance with the act and investigate complaints.
The Personal Data Protection Bill, 2019
This bill is a comprehensive bill that seeks to regulate the collection, storage, and use of personal data in India. It proposes to establish a Data Protection Authority to oversee compliance with the bill and investigate complaints. The bill also includes provisions for the protection of sensitive personal data, the right to be forgotten, and the right to data portability.

The Digital Personal Data Protection Act 2023 (DPDPA) is a landmark piece of legislation that aims to safeguard the privacy and security of individuals’ personal data in the digital age. Enacted last year, the DPDPA establishes a comprehensive framework for the collection, use, and disclosure of personal data by organisations operating within the country.

Key provisions of the DPDPA:

Consent and transparency:
- Organisations must obtain explicit consent from individuals before collecting, using, or disclosing their personal data.
- Individuals have the right to be informed about the purposes of data processing and the entities involved.
Data minimisation:
- Organisations can only collect and process personal data that is necessary for specified, legitimate purposes.
- Excessive data collection is prohibited.
Purpose limitation:
- Personal data can only be used for the purposes for which it was originally collected.
- Unauthorised use or disclosure of personal data is strictly prohibited.
Data security:
- Organisations must implement appropriate security measures to protect personal data from unauthorised access, use, or disclosure.
- Failure to protect personal data may result in penalties.
Data subject rights:
- Individuals have the right to access, rectify, erase, and restrict the processing of their personal data.
- Organisations must provide mechanisms for individuals to exercise these rights easily.
Data portability:
- Individuals have the right to obtain a copy of their personal data in a structured, commonly used, and machine-readable format.
- Organisations must facilitate the transfer of personal data to other service providers upon request.
Data protection officers:
- Organisations that process personal data on a large scale must appoint a Data Protection Officer (DPO) to oversee compliance with the DPDPA.
- The DPO is responsible for ensuring that the organisation’s data processing activities are in line with the law.
Cross-border data transfers:
- Organisations must comply with specific requirements when transferring personal data outside the country.
- Data transfers to countries with inadequate data protection laws may be restricted or prohibited.
Enforcement and penalties:
- The DPDPA establishes a Data Protection Authority to enforce compliance and investigate violations.
- Organisations that breach the law may face significant fines and other penalties.

The DPDPA reflects the growing global recognition of the importance of personal data protection in the digital era. It empowers individuals with greater control over their personal data and holds organisations accountable for their data handling practices. By implementing comprehensive data protection measures, the DPDPA aims to foster trust in the digital economy and protect the fundamental rights of individuals in the digital age.

These laws, along with the Information Technology Act, 2000, provide a comprehensive framework for data protection in India. They aim to protect the privacy of individuals, ensure transparency and accountability in the processing of personal information, and empower individuals with rights and remedies in relation to their personal data.

In addition to these laws, there are several other regulations and guidelines issued by various government agencies that address specific aspects of data security. For example, the Reserve Bank of India (RBI) has issued guidelines for banks and financial institutions on data protection and cybersecurity. Similarly, the Telecom Regulatory Authority of India (TRAI) has issued regulations for telecom service providers on the protection of customer data.

These laws and regulations collectively form the legal framework for data security in India. They aim to protect the privacy of individuals, prevent the unauthorised use of personal information, and ensure the secure handling of data by organisations. However, it is important to note that data security is an ongoing process, and there is always room for improvement. As technology continues to evolve, new challenges and threats to data security will emerge, requiring policymakers and regulators to adapt and strengthen the existing legal framework to address these emerging concerns effectively.

The Information Technology Act of 2000 has been amended several times over the years to keep up with the evolving landscape of electronic data. The most recent amendment was made in 2018, which introduced several new provisions related to data protection. These provisions include:

The requirement for data controllers to obtain the consent of individuals before collecting their personal information.
The right to access their personal information and to request its correction or deletion.
The obligation of data controllers to take reasonable steps to protect personal information from unauthorised access, use, or disclosure.
The creation of a new offence of unauthorised access to personal information.

Future of remote work in developing countries in the landscape of partial cybersecurity

Therefore, the future of remote work in developing countries like India is full of challenges, in spite of the great potential that it holds. It may be expected that remote work in this country will grow with the advancement of digital technology, particularly with the advent of faster internet and cloud-based solutions. Digitisation and remote work policies, besides offering the scope of a far enhanced work-life balance, are also highly cost-effective due to the reduction of commuting costs as well as office space and infrastructure accruing thereon. To reap the harvest of such a technological storm worldwide, India needs to wake up to the major challenges of remote work, namely, cyber security and the digital divide. The government of this country must take initiatives to implement robust measures, along with adequate training for the users of remote platforms so that awareness is created. This would, it is expected, go to sufficient lengths to reduce cyber-related crimes. At an initial stage, intervention by the government in terms of the development of infrastructure and training is required to erase or, at least, minimise the digital divide that might be created due to unequal access to the internet and technology. Government regulations, including the evolution of legal frameworks and policies through intrinsic and extensive studies and research, are needed to adapt to the inevitably changing work landscape of the digital world.

Conclusion

To conclude, the COVID-19 pandemic has inflicted severe pain in the labour market, and there is an ever-growing emphasis on the availability of the internet to enable workers to perform remotely wherever feasible. The concept of remote work varies widely, though, depending on a country’s income level and the type of economy. Highly crucial to the success of a remote work policy is the availability of infrastructure in the form of the internet. Thus, while in developed countries one in every five jobs can be done from home, in low-income countries it is only one in 26. Just as there is no rose plant without thorns, so is the case of remote work – a remote work policy has to be backed up with a set of sound cyber security policies. The state of cyber security in developed countries as compared to developing countries differs in levels of complexity. While developed nations have highly evolved IT infrastructure with better redundancy and disaster recovery capabilities, larger funds for personnel training, research and development, and extremely advanced security technologies, the intrinsically interconnected and complex IT systems create larger attack surfaces for vulnerabilities. These systems are liable to be targets for sophisticated cyber attacks due to perceived wealth and critical infrastructure. The developing countries, on the other hand, have access to international initiatives for capacity building and knowledge sharing and the rapid adoption of new technologies can offer an opportunity to build secure systems from scratch. Moreover, less complex IT infrastructure requires simpler security implementations. One of the major weaknesses of developing nations lies in insufficient funds for advanced security solutions, training for skill development, and advanced security solutions. It appears that collaboration and knowledge sharing between countries are essential to addressing global cyber security threats more efficiently.

References

Mithu vs. State of Punjab (1983)

By

Vanshika Kapoor

-

June 23, 2024

0

This article is written by Arya Senapati. It attempts to analyse the landmark decision of the Apex Court in the case Mithu vs. State of Punjab through the facts, legal issues, legal provisions and judgement delivered. It deals with the constitutionality of Section 303 of the Indian Penal Code, 1860 and other related provisions.

Table of Contents

Introduction

Most recently, as the convicts in the Nirbhaya Rape case were hanged for the offenses of rape and murder, the topic of the death penalty has become an important part of debate. There are a growing number of death row inmates in India currently. Murder is regarded as a serious and heinous offence in India and is penalised under Section 302 of the Indian Penal Code, 1860. Those guilty of committing murder, i.e. culpable homicide amounting to murder, will be charged under the ambit of Section 302. After trial, if the accused is found guilty of murder, they are punished under Section 302, which ranges from life imprisonment to death. The severity of the sentence depends on the circumstances of the case and the nature of the offence committed. These attributes are taken into consideration by the court while delivering a judgement on the offence. Death sentence or death penalty, is usually referred to as “capital punishment”. It is the most serious form of sentencing that is imposed on an accused for grave criminal offences like murder, rape, terrorist activities, etc.

The jurisprudential idea behind imposing the death penalty is that when a person does an act that is so gruesome that the presence of the person in the folds of society poses a threat or danger to society and its people at large, it is the duty of the state to negate such a threat from society while setting an example of the consequences of such a heinous act for future offenders. To sentence the death penalty for causing murder is a form of retributive justice. In simpler terms, retributive justice implies “an eye for an eye.” Therefore, the idea of retributive justice connotes that the quantum of punishment given for a crime must be proportionate to the severity of the crime itself. Imposing the death penalty is also an act of creating deterrence. In criminal jurisprudence, exemplary forms of punishment like the death penalty are imposed to deter others from committing a similar form of crime in fear of such a strict punishment.

Death as a form of punishment has found its mention in the preliminary drafts of the Indian penal laws and has stood the test of time as one of the most effective forms of sentencing for offences with the highest degree of threat to society. They are still in application in their initial forms, except for a few minor changes in interpretation and understanding. While Section 302 dealt with the punishment for causing death, Section 303 of the IPC became a contentious provision as it stated that if a person is serving life imprisonment for committing any offence and, while being a life convict, causes murder, he shall be sentenced to the death penalty. The matter in this case lies in the constitutional validity of this provision, which provides for the mandatory death penalty in the event of a life convict being found guilty of murder.

Details of the case

Petitioner: Mithu Singh

Respondent: State of Punjab

Court: Supreme Court of India

Bench: Y.V. Chandrachud, Syed Murtaza Fazalali, V.D. Tulzapurkar, O. Chinnappa Reddy, and A. Varadarajan

Date decided: April 7, 1983

Citation: 1983 AIR 473

Facts of the case

The factual matrix of this case of Mithu v. State of Punjab (1983) involves a petition challenging the constitutional validity of Section 303 of the Indian Penal Code, 1860. As per the petitioners, Section 303 is an arbitrary and illogical provision that vitiates the fundamental rights guaranteed under the Indian Constitution. The two particular fundamental rights that were alleged to be violated by the application of Section 303 were Article 21 and Article 14. While Article 14 deals with Right to Equality before the law and equal protection of the law, Article 21 deals with Right to life and personal liberty.

The contention regarding the impugned provision is that the application of the provision is unlawful. It is contended so because the process through which a person is deprived of his life under Section 303 is unfair and highly unjust. Article 21 states that the life and liberty of a person can only be deprived through procedures established by law and the said procedures should be fair, reasonable, not arbitrary and not vague in any manner. The primary contention in the petition is that the sentencing of the death penalty to a person serving a life sentence who is subsequently found guilty of murder is an arbitrary procedure that is not just and fair as per law. In terms of Article 14, the petition states that the classification of “life inmates guilty of murder” is not a reasonable classification and therefore violates Article 14. The petition lastly prayed to the Apex Court to declare the provision unconstitutional.

Issues raised

Whether the application of Section 303 of the Indian Penal Code, 1860, violates the fundamental right to life and liberty enshrined under Article 21 of the Indian Constitution?
Whether the imposition of the death penalty on a life convict through Section 303 is a just and fair procedure established by law to deprive a person of their life? Does it fulfil the requirement under Article 21, that is, “No person shall be deprived of his life or personal liberty except according to procedure established by law”?
Whether Section 303 of the Indian Penal Code, 1860, is violative of Article 14, i.e., Right to Equality as enshrined under the Constitution of India?

Contentions of the petitioner

The learned counsel representing the petitioner put forth his primary contentions on the ground that the provisions enlisted in Section 303 of the Indian Penal Code are completely unreasonable and arbitrary in their operation. The provision is violative of Article 21 of the Indian Constitution. Article 21 states that no person shall be deprived of their life and personal liberty except through the procedure established by law. The procedure must be just, fair, reasonable and not arbitrary. In the case of Section 303, the provision is highly arbitrary as it doesn’t lay down a clear procedure for taking away the life of a life convict found guilty of murder. There is no clear delineation of procedures that should be followed and therefore it is unreasonable and vague.

The next argument is that Article 14 of the Indian Constitution, which deals with the right to equality, states that every person should be treated as equal in the eyes of the law and must be accorded equal protection of the law. In the case of murder, sentencing should therefore be equally imposed on convicts but in certain cases, life imprisonment is imposed as a punishment and in serious cases, the death penalty is imposed. The reason behind this relates to the seriousness of the offence and the degree of severity of the crime committed.

Article 14’s interpretation states that whenever a law is equally applied to a person or a class, there must be some reasonable classification for doing so. That is to say that there must be some object that the law is trying to fulfil and certain characteristics defining the class it is imposed on. There must be a reasonable nexus or connection between the object of the law and the classification created.

Through Section 303, a separate class is created, which is “life convicts guilty of murder,” and the object of the provision is to find a more severe deterrence to prevent a life convict from committing murder. As per the petitioners, such a classification is unreasonable and arbitrary and there is no relationship between the object of the law and the classification it creates. Therefore, it is violative of Article 14, as it doesn’t abide by the doctrine of reasonable classification.

Contentions of the respondent

The learned counsel for the respondent relied on the judgement of the Apex Court in the case of Bachan Singh vs. State of Punjab (1980). This case stated that the death penalty is constitutional in India and can be imposed by the courts but it should be imposed in the rarest of the rarest cases. To ascertain such cases, the degree of the offence must be extremely severe. The Death penalty is necessary to create deterrence in society by imposing such a severe sentence. Relying on the decision, the counsel for the respondent makes the point that the Supreme Court has already held the death penalty to be constitutional. Section 303 simply imposes the death penalty for a severe offence of murder committed by a life convict.

The learned counsel also refers to Section 354(3) of the Criminal Procedure Code, 1973, which states that the general punishment for committing murder is life imprisonment and in cases where the death penalty is imposed, the court must record reasons for imposing such a harsh penalty in writing. Therefore, in the procedural aspects of criminal law, the imposition of the death penalty is permitted on valid grounds. In this instant case, the grounds for imposing the death penalty are to prevent a life convict from committing the murder of jailors and other jail employees.

Judgement in Mithu vs. State of Punjab (1983)

The Apex Court held that Section 303 of the IPC is unconstitutional and void because it violates the rights contained in Articles 14 and 21. Hence, all the cases regarding murder shall be dealt with as per Section 302 of the IPC. The reasons for the unconstitutionality were discussed comprehensively in the judgement.

Rationale behind the Judgement

There are two judgments delivered in this case. The first one is by the then Chief Justice Y.V. Chandrachud and the second is a concurring judgement by J. Chinappa Reddy.

Y.V. Chandrachud’s Judgement

As per C.J. Y.V. Chandrachud, the primary question that arises in connection with the case is whether the provisions of Section 303 of the Indian Penal Code violate Article 21 of the Indian Constitution or not? Violation must be construed in relation to the provision, which states that “no person shall be deprived of his life or personal liberty except according to the procedure established by the law.
In relation to the criminal law, Section 300 of IPC defines Murder, while Section 302 states that “Punishment for murder-whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine.” Section 302 is not the sole section that imposes life imprisonment. It is one of the 51 sections of the IPC that provide life imprisonment as a punishment for certain offences.
The primary distinction between those sections on one side and Section 302 on the other is that under the other sections, life imprisonment is the maximum quantum of punishment that can be imposed for an offence, but under Section 302, life imprisonment is the minimum degree of sentencing that is imposed for murder and the only options available to the court that finds a person guilty of murder are to impose life imprisonment or the death penalty as a sentence for the offence. Therefore, the general sentence for murder is life imprisonment.
A brief reading of Section 354(3) of the Code of Criminal Procedure, 1973 states that, upon conviction for an offence punishable with death or imprisonment for a term of certain years, the judgement must state reasons for delivering the sentence it deems appropriate and if it imposes death penalty, it must provide special reasons for doing so.
While dealing with the validity of the death penalty in the case of Bachan Singh vs. State of Punjab, this court stated that the penalty is valid but must be imposed in the most exceptional cases, which are the rarest of the rare cases.
The makers of the Indian Penal Code have been highly appreciated for their efforts in classifying various offences. They have also attached appropriate punishment for each of the offences so classified. The problem that they faced while doing so was finding an appropriate punishment for a life convict committing murder. This problem was solved by enacting Section 303, which imposed death penalty as the punishment for such an offence
One of the reasons why the imposition of death penalty was made mandatory under Section 303 can be found in the theory of deterrence. Such an exemplary punishment was thought to be effective in deterring others from committing such a severe crime. The only option in such a situation that was available to the lawmakers was the sentencing of the death penalty. The deterrent and retributive theories of punishment motivated the legislative judgement of the legislators to come up with such a provision.
Later, the reformative theory of punishment was deemed to be attractive to legal scholars in such a situation. The nature of subsequent sentencing can be understood by comparing the provisions related to it in the original Code of Criminal Procedure and the amended version that prevails currently. In the original version, whenever a person is undergoing a sentence of life imprisonment and is subsequently sentenced to another punishment for a subsequent offence, the second sentencing starts only after the expiry of the first one. This provision was enlisted in Section 397 of the original Criminal Procedure Code but later, this section was amended to state that whenever a person serving a sentence for life imprisonment is sentenced to a subsequent conviction, which also imposes a life imprisonment sentence, then in such cases, both sentences have to run concurrently with each other. Even Section 427(2) of the Criminal Procedure Code provides for a similar effect.
The reason for referring to this aspect of the criminal procedure code is to put emphasis on the fact that when Section 303 of the Indian Penal Code was enacted, the legislators did not take into consideration the possibility of successive sentencing for transportation of life as an adequate punishment for committing the offence of murder while the convict is serving a life sentence.
The punishment created under Section 303 creates a form of absolute liability and the legislators ignored various significant aspects of cases that could attract the imposition of these particular actions. Therefore, questions regarding its validity are bound to arise and those questions were also ignored by the lawmakers. The only situation that was present in the minds of the lawmakers was that one kind of case where the murder of a jail official is committed by a life convict. It is to be noted that in those days, jailors used to be Englishmen and foreigners and therefore, the provision was initially formulated keeping in mind the interests and protection of jail officials and ruling class people.
Before proceeding to point out the infirmities in Section 303 of IPC, it is important to pay heed to the argument of the petitioners. The counsel for the petitioner states that the substance of the provision is absolutely unreasonable and arbitrary and therefore it is violative of Article 21 of the Indian Constitution. Article 21 seeks to protect the life and liberty of people, except for procedures established by law to deprive an individual of life and liberty. Based on this argument, the court is of the opinion that it must be accepted as a valid argument and that Section 303 of the Indian Penal Code must be struck down as unconstitutional.
Referring to the decision of the Apex Court in the case of Maneka Gandhi vs. Union of India (1978), it was held by a seven judge bench that when a piece of legislation simply prescribes a procedure to deprive a person of life and liberty, it doesn’t by itself meet the requirements of Article 21. The procedure has to be fair, just and reasonable, and it cannot be fanciful, oppressive or arbitrary in any manner. In this case, J. Bhagwati held that the concept of reasonableness must be manifested in the procedure that is mentioned under Article 21 and Article 14 must also be brought into the connection.
Referring to Sunil Batra vs. Delhi Administration (1978), which dealt with the question of whether a person awaiting death sentence can be kept in solitary confinement or not, the court held that the constitution doesn’t follow the “due process” mechanism as enlisted in the American Constitution. The Indian Constitution follows the principle that whatever is an outrageous punishment, is unusual in a scandalising nature, is absolutely cruel and pays no consideration to the rehabilitation of an offender is considered unreasonable and arbitrary and therefore is violative of Articles 14 and 21 of the Indian Constitution.
Referring to the Bachan Singh judgement, the majority of the bench believed that the procedure envisioned under Article 21 of the Indian Constitution must be interpreted in light of the Maneka Gandhi decision. Such decisions have broadened the interpretations of Article 21. The courts are neither bound nor free to impose a fanciful procedure simply by blindly following the letters of the written law, thereby imposing a savage sentence.
A savage sentence is antithetical to the jurisprudence laid down in Article 21. It is for the courts to decide if a procedure laid down is fair and reasonable or not, just as the court has the power to decide whether a restriction imposed on a fundamental right is reasonable or not.
The respondent counsel makes the argument in reference to the decision laid out in Bachan Singh and states that Section 303 has no constitutional infirmity. Their primary contention is that Section 303 does nothing more than simply provide a death sentence for an offence of murder and that the ratio of Bachan Singh will apply to the questions of the validity of Section 303 and must be held to be conclusive.
As per the bench, the argument has a two pronged defect. The first is that it goes against the understanding of the Bachan Singh decision and secondly, it ignores the distinction between Section 302 and 303 of the Indian Penal Code. The decisions that are given by a court must be understood from a legal perspective and not an academic one. The court did not lay down a blanket decision that all forms of death sentences are constitutional nor did it say that it is allowed under the constitution to provide death sentences in any situation. The question that arose in Bachan Singh is whether it is permissible under the Constitution to impose the death sentence. It was interpreted as whether the death penalty, as one of the two options provided under Section 302, is valid or not. It is worth noting that the death penalty is simply an alternative under Section 302 and the primary sentence is life imprisonment. The court is also under an obligation to provide special reasons for imposing the death penalty.
In Bachan Singh, the majority held the death penalty under Section 302 to be constitutionally valid because it was an alternative to life imprisonment. There was a necessity to state special reasons for imposing the death penalty as a sentence and the accused is entitled to be heard in matters of sentencing under Section 235(2) of the Criminal Procedure Code.
If a law provides for the mandatory imposition of the death penalty, like Section 303 does, it vitiates the application of Sections 235(2) and 354(3) of the Criminal Procedure Code . If the court has no option of saving the application of the death penalty, it is absolutely meaningless to hear the accused on matters of sentencing, and it also becomes insignificant to provide any special grounds for providing the death sentence.
Therefore, the ratio of Bachan Singh is that the death penalty is constitutional only when it is an alternative. This ratio cannot be applied to this instant case and therefore the arguments of the respondent are invalid.
There is an apparent difference between Section 302 and 303 and the way Bachan Singh deals with Section 302, it cannot be applicable to 303 in the same manner as the court is mandated to provide a death sentence.
The next question that arises is whether there is any intelligible differentia for treating an accused who commits murder while being sentenced to life imprisonment differently. Can the accused be put in a different class as compared to others who are guilty of murder? And is there any nexus between such discrimination and the purpose behind the provision?. The court is unable to see any reasonable justification for creating a distinction in the manner of punishment between the two classes of offenders.
It is important to refer to the 42nd Law Commission Report on the Indian Penal Code, which dealt with the question of amending Section 303 and found its application anomalous. It is therefore suggested by the report that Section 303 must be amended to restrict the application to life convicts who are actually in prison.
Based on various principles mentioned above, the court is of the opinion that Section 303 is violative of the constitutional guarantees of equality as mentioned under Article 14 and the guarantees of life as mentioned under Article 21. Based on these assumptions, the court struck down Section 303 of the Indian Penal Code for being unconstitutional and declared it void. All cases of murder will therefore fall under Section 302 of the Indian Penal Code and there can be no imposition of mandatory death sentence.

J. Chinnappa Reddy’s Judgement

Justice Chinnappa Reddy delivered a concurring judgement in this case. As per the judgement, he refers to Section 303 of IPC as an anachronism that is not in pace with the changing nature of society as well as the developing tenets of human consciousness. It goes against the constitutional jurisprudence set out in India through various judgements and provisions.
It outright attacks the virtuosity of Article 21 and the jurisprudence that has developed from it, especially in the R.C. Cooper vs. Union of India (1970) case, which dealt with the nationalisation of banks and freed the constitution from the confines of a strict interpretation. After the decision in the bank nationalisation case, no fundamental rights of the constitution can be viewed or interpreted in isolation. They are connected to each other and must be interpreted in such a manner.
This position was strengthened by the Maneka Gandhi judgement, which held that articles that deal with various fundamental rights enshrined in the Constitution do not entail separate streams of light, but they mingle at many points. They are to be interpreted in an integrated manner to preserve the ideas of freedom, equality and fraternity that our constitution envisions. By isolating various fundamental notions of individual freedom, we create an unrealistic system that is not advantageous to constitutional protection but rather defeats it.
After the Maneka Gandhi judgement, it is clear that Article 21 is the focal point around which all other fundamental rights revolve. The procedure enshrined under Article 21 to deprive an individual of life and liberty has to be fair, impartial, just, reasonable, and not fanciful, arbitrary or oppressive.
As per the question of whether Section 302, which provides for the death sentence as an alternative punishment for murder, is constitutionally valid or not, it was dealt with in the case of Bachan Singh, where it was rightfully held to be valid as the judge had the option of providing a lesser sentence. The presence of judicial discretion is what prevented the imposition of the death penalty from being declared unconstitutional. Even with the discretion present, the court cautioned that the death penalty must be used in the rarest of the rare cases.
By judging in the light of the Maneka Gandhi and Bachan Singh judgments, it is almost impossible to declare Section 303 as constitutionally valid as it denies judicial discretion to courts. The quantum of justice is effectively removed from the hands of the judges through the application of Section 303.
The sentence of death is absolutely final, irrevocable and irresistible, and therefore, any law that makes it a mandate and denies the provision of application of judicial mind to it cannot be termed fair, just and reasonable.
Such provisions are arbitrary and oppressive. It is an exemplary bad law and therefore it must be struck down as unconstitutional and declared void.

Laws and doctrines involved in Mithu vs. State of Punjab (1983)

There are various important pieces of legislation and doctrine involved in this judgement. Some of the most notable ones are:

Article 14 of Indian Constitution

This Article of the Indian Constitution gives every individual, citizen or non-citizen, the right to equality before the law and equal treatment of the law. It ensures that every citizen and non-citizen of India is treated equally without facing any kind of discrimination. It attempts to preserve the integrity and applicability of the rule of law and order. As J. Bhagwati interpreted Article 14 in the Maneka Gandhi case, it is a dynamic principle that cannot be tied to a traditional or rudimentary understanding of law. It develops as society evolves and the mindset of the general populace changes. It is an important guard against the arbitrariness of state action and it safeguards justice and equal treatment of all state subjects.

Doctrine of Reasonable Classification

Even though Article 14 enshrines equal treatment before the law, in certain situations, it is permissible to apply a particular law differently to a particular class of people. The creation of such a distinct class is termed as classification and it must be reasonable to prevent the violation of Article 14. The classification must also have a reasonable connection with the purpose for which the legislation is enacted. This doctrine was developed in the case of Vajravelu Mudaliar vs. Special Deputy Collector for Land Acquisition (1964), which stated that the classification should not be arbitrary and that there has to be substantial reasoning behind the distinction drawn between people who fall into a particular class and people who do not. This doctrine was mentioned in the case to state the fact that the creation of a separate class, that is, convicts of an offence serving life imprisonment who later get convicted of murder, is an unreasonable classification as it is arbitrary and not fair or just.

Article 21 of Indian Constitution

Article 21 of the Indian Constitution guarantees the fundamental right to life and personal liberty. It states that no person shall be deprived of their life and personal liberty except as per the procedure established by law. It is a provision that has led to multiple interpretations and various peripheral and concomitant rights like the right to sexual orientation, the right to privacy, and the right to clean air and water. The “procedure established by law” is often compared to the “due process” mechanism followed in the American system. While due process may not accord any significance to fairness and just principles, procedures established by law have to be just, reasonable, fair and not arbitrary.

Section 302 of Indian Penal Code

Section 302 of the Indian Penal Code lays down the punishment for culpable homicide amounting to murder. It states that any person found guilty of committing murder shall be punished with life imprisonment or the death penalty. The normal sentencing is life imprisonment and in the most severe of cases, it shall be replaced with the death penalty.

Section 354 (3) of Criminal Procedure Code

Section 354(3) states that whenever a particular offence is punishable with death or, in alternative, with imprisonment for life or imprisonment for a certain number of years, the judge shall provide reasons for awarding the sentence that he deems appropriate in the Judgement and in case, the judgement awards the death penalty, the judge has to provide special reasons for imposing the gravest of punishments. This procedure is adopted to understand the application of the judicial mind while awarding a specific quantum of punishment based on the severity of the offence.

Section 235 (2) of Criminal Procedure Code

As per the provisions of Section 235(2) of the Criminal Procedure Code, whenever an accused is found guilty of an offence and is convicted, he must be given a reasonable opportunity to be heard by the judge in matters of sentencing before the sentence is imposed as per law. This provision seeks to protect the facet of natural law, “audi alteram partem,” which basically states that a person must be given a reasonable opportunity to be heard before getting sentenced.

Section 303 of Indian Penal Code

Section 303 of the Indian Penal Code states that any person who has been convicted of any offence previously and sentenced to life imprisonment must be punished with the death penalty if proved guilty of murder in a subsequent conviction. This provision is the impugned provision in the case. In the judgement of the case, this provision was declared to be constitutionally invalid and void as it made the death penalty a mandatory sentence and left no ground for application of judicial mind or discretion.

The provision regarding the mandatory death penalty in case of a life convict being found guilty of murder was initially introduced to the Indian Penal Code because the legislators found that there is no other option for imposing a higher degree of penalty on a life convict who is found guilty of murder. No other sentencing would serve as a strong means of deterrence, which would lead to a life convict having no fear of committing any other serious offence. The 42nd Law Commission Report observed the necessity of having this provision, which was introduced with the primary motive of providing protection to the prison staff and jailors from getting murdered by the life convict. The primary scenario that was in the minds of the lawmakers while creating this law was the murder of a jail employee by a life inmate.

Hence, the primary colonial motive behind the law was to safeguard British officers from being murdered by Indian inmates. Owing to the conflict between the British officials and the Indian nationals, it was highly possible that they would get attacked by an Indian inmate sentenced to life imprisonment. Therefore, the colonial motive to protect English officers was the main objective behind this section, which was challenged in the case of Mithu Singh vs. State of Punjab (1983).

Punishment for murder under Bharatiya Nyaya Sanhita, 2023

Under the new regime of criminal law enshrined under the Bharatiya Nyaya Sanhita, 2023, which seeks to replace the Indian Penal Code, 1860, Section 103 provides the punishment for murder as capital punishment or life imprisonment along with a fine. It is worth noting that if a group of five or more persons, after mutual consensus, commit murder on the grounds of race, caste, community, sex, place of birth, language, personal belief and other similar grounds, each of them shall be subject to either life imprisonment or the death penalty in addition to a fine. Section 80 of the Bharatiya Nyaya Sanhita states that in cases of dowry death, which constitutes the demise of a woman through burns, bodily injury or other normal circumstances within 7 years of marriage, anyone found guilty of such an offence will be punished with at least 7 years imprisonment, which can be extended to life. Section 104 of the Bharatiya Nyaya Sanhita is modelled after the contentious Section 303 of the Indian Penal Code, which was held to be unconstitutional in the Mithu vs. State of Punjab case. It states that any person who is serving a sentence of life imprisonment and gets convicted of a subsequent charge of murder shall be punished with death or with imprisonment for the remaining period of the person’s natural life. The fact that the provision provides for an alternative to the death penalty in the form of life imprisonment, which extends to the remaining period of the natural life of the person, is enough to attach constitutional validity to the new provision. The lack of alternative sentencing would have put the provision at risk of being constitutionally invalid or void.

Related case laws

Jagmohan Singh vs. State of U.P. (1972)

In this case, the Supreme Court held that the imposition of the death penalty as an effective form of punishment did not infringe upon the right to life, the right to equality and the right to freedom of speech and expression as enshrined under Articles 14, 19 and 21 of the Indian Constitution. The judge must, however, scrutinise the facts of the case, the circumstances in which the offence was committed, the nature of the criminal offence, and other relevant attributes while deciding if the convict shall be sentenced to the death penalty or life imprisonment. The sentencing of the death penalty must always be done while abiding by the procedure laid down by law under Article 21 of the Constitution.

Rajendra Prasad vs. State of U.P (1979)

In this case, the Apex Court held that the death penalty must only be imposed in cases where the individual is proved to be such a gruesome and horrific threat to the security of society and people who are a part of society that the only measure of deterrence and retribution is capital punishment. J. Krishna Iyer laid down specifically three categories of offenders who can be inflicted with capital punishment. They are: (a) offenders convicted of white collar crimes; (b) offenders involved in socio-economic offences like offences against women, scheduled castes and scheduled tribes; (c) wherever it is necessary to remove a person from society while he poses an imminent and insurmountable amount of threat to society, for e.g., a serial killer or a terrorist.

Bachan Singh vs. State of Punjab (1980)

In this case, the court held that the provision of the death penalty is present in Section 302 only as an alternative to life imprisonment and therefore, it cannot be held to be unreasonable and it is not in the interest of the public to declare it unconstitutional as the Parliament has already reviewed the provision many times. Even though the court did not hold the provision to be an unconstitutional one, it created the doctrine of “rarest of rare,” where it stated that the death penalty can only be imposed as a sentence in the rarest of cases. The court has to consider various aggravating and mitigating factors while granting the death sentence to a person convicted of an offence where the death penalty is an option for sentencing.

Aftermath of the judgement

The decision of Mithu v. State of Punjab (1983) had a significant impact on many decisions that came after it regarding the death penalty. Some of the most notable judgements are:

Indian Harm Reduction Network vs. Union of India (2011)

In this case, the validity of Section 31 of the Narcotics, Drugs and Psychotropic Substances Act, 1985, was challenged by a petition contending that it violated Articles 14 and 21 of the Constitution of India. This section made it mandatory for the courts to impose the death penalty upon second conviction on certain offences made under this Act. The Apex Court referred to its judgement in Mithu vs. State of Punjab and held that the classification that was sought to be created for application of the legislation is a valid classification. The classification has a rational nexus with the object of the Act and therefore it is not violative of Article 14 but it is found to be violative of Article 21, as the procedure laid down is unjust and unfair. Therefore, the provision is constitutionally invalid and void. The Apex Court acknowledged that Mithu is the only and, therefore, the leading authority on the mandatory death penalty and therefore all references in such cases must be made to it. There is no space for the mandatory death penalty under our constitution, as it takes away judicial discretion.

State of Punjab v. Dalbir Singh (2012)

The Arms Act, 1959, deals with matters of acquisition, possession, manufacture, sale, transportation, import and export of arms and ammunition. Section 7 of the act forbids the manufacture, use and sale of prohibited arms unless permitted by the Central Government. Section 27(3) states that any contravention of Section 7 that results in the death of any person will lead to the imposition of the death penalty on the accused. This section was challenged in this instant case, wherein the mandatory nature of the death penalty was challenged. The Apex Court referred to its decision in Mithu v. State of Punjab and held that any provision of law that results in depriving the courts of their discretion and gives no regard to the circumstances in which an offence is committed is harsh, unjust and unfair. It is necessary for a law to be just, fair and reasonable under Articles 14 and 21 of the Constitution. Any law that imposes an irreversible penalty as harsh as death is repugnant to the concepts of right and reason. Based on these principles, Section 27(3) was declared unconstitutional and void.

Machhi Singh v. State of Punjab (1983)

This case provided a newer understanding of the rarest of the rare doctrine and stated that if any member of a society violates the belief that “respect for life” by killing another person from the society, then the society will not be bound by the principle of “no death sentence in any case.” Every member of a community must value the rule of law. When the Court imposes the death penalty on any person, it must state special reasons for doing so, and those special reasons must be determined through the lens of aggravating and mitigating factors. The court must consider what amount of weight must be placed on certain aggravating and mitigating factors based on the facts and circumstances of the case. Some of the aggravating circumstances that the court laid down for imposing the death penalty are: murder committed with extreme brutality and previous planning; if the murder involves exceptional depravity; if the murder is of a member of the armed forces or any police officer while such officer was on duty. The mitigating factors that the court laid down to reduce the quantum of sentence are: an offence committed under a state of mental or emotional disturbance; the accused is too young or too old, there is a greater chance that the accused would not commit any other offence in the future and stop being a threat to society, there is a chance that the accused can be reformed and rehabilitated for his betterment and for the betterment of the society, the accused acted under duress or coercion of another person; the accused was mentally defective and therefore was incapable of judging the consequences of his actions. The burden of proof proving that the accused has no chance of being reformed or rehabilitated falls upon the state. The extreme penalty of death must only be awarded in cases of grave culpability and before opting for death sentencing, the circumstances must be taken into consideration. It reiterated the fact that life imprisonment is the norm and a death sentence is an exception.

Kehar Singh v. Union of India (1988)

In this case, a five judge bench of the Supreme Court held that the powers of the President and the Governors to decide on mercy petitions for death row inmates as under Articles 72 and 161 of the Constitution are different from those of the powers given to the court. These two separate powers are exercised separately and the President has the power to give a different opinion or decision as compared to courts. The President also has the power to give an opportunity for oral hearing to the convicts. Oral hearings are not a right; they are at the discretion of the President. Furthermore, the courts have no scrutiny over the powers exercised by the President. The judiciary cannot go into the merits of the President’s decisions. The court simply has the power to ascertain that the process through which the President made the decision was in accordance with the procedural requirements of the constitution. The court has to ensure that the process is not unconstitutional in any means.

Swamy Shraddhananda & Murali Manohar Mishra v State of Karnataka (2008)

This case did not deal with the validity of the death penalty, as it was thoroughly discussed in the Bachan Singh and Mithu judgements. The court, in this case, focused primarily on standardising the cases where the death penalty can be imposed and creating a proper category for the same. The court wished to set guidelines and enter into categorisation to prevent arbitrariness in the imposition of the death penalty. The court recognised that with serious offences, there would always be a scope for arbitrary and capricious imposition of the death penalty. The Court upheld the prior decision made in the Jagmohan Singh case and stated that it is almost impossible to provide a clear list of aggravating and mitigating factors to be considered while sentencing an offender. It stated that in the Macchi Singh case, the court enlarged the ambit of the death penalty beyond the intended limits set in the Bachan Singh Judgement. The court recognised that the categorisation of circumstances mentioned in Macchi Singh cannot be held to be absolute but is merely suggestive. The primary intention of the court in the Bachan Singh case to keep the categories flexible must be preserved at all costs.

Santosh Kumar Satishbhushan Bariyar v State of Maharashtra (2009)

While interpreting the “rarest of the rare” doctrine in this case, the Supreme Court held that the decision in the Bachan Singh case must be upheld that death sentence must be imposed unless life imprisonment is absolutely out of question. The court further states that while ascertaining if death penalty must be imposed, the court has the duty to apply a two-part test. First, it is upon the judge to determine if the case falls under the rarest of the rare doctrine and second, the court must draw a list of aggravating and mitigating factors to determine the same. In the second part, the court must choose the alternative to life imprisonment only when it sees that there is no chance of reformation and rehabilitation of the accused. The court must also prove why the convict cannot be reformed or rehabilitated in any way while sentenced to the death penalty.

Shatrughan Chauhan v. Union of India (2014)

In this case, the Supreme Court largely dealt with commuting death sentences due to large delays in executing mercy petitions. A three judge bench of the Apex Court held that such excessive delays in the execution of death penalty cannot be reasonable grounds for commuting a death sentence. At this point, it is not important for the courts to pay any attention to the circumstances, facts, gravity and nature of the case while judging the commutation of death sentences.

Mukesh v. State of Delhi (2017)

In this case, a three judge bench of the Apex Court held that, whenever there are any defects in death sentences, the higher court can remand the matter to lower courts and alternatively, the court can permit the accused to submit any data and arguments to the court on questions which concern the quantum of their sentencing.

Critical analysis of the judgement

The death penalty is a harsh, irreversible and irrestitutable sentence that deprives a person of their life. Due to the severe nature of the punishment, the global forums have debated the abolition. There have been many human rights organisations that claim that the death penalty is a violation of the Right to Life. In the Indian context, the right to life is not an absolute right under Article 21, as the same Article states that a person can be deprived of their life and liberty through procedures established by law. Through many judgements, the court has interpreted this section to state that the procedure to deprive a person of their life must be fair, reasonable, just and not arbitrary. Therefore, an analysis of an array of judicial decisions on the validity and interpretation of the death penalty is necessary for providing a proper conceptual framework for its imposition and understanding. The decision in Mithu v. State of Punjab takes this approach forward and upholds the fact that the death penalty cannot be a mandatory sentence. It adds an extra layer to the decisions before it, which held that the death penalty must be applied in the rarest of the rare situations, while paving the way for future decisions to interpret the death penalty through a lens of aggravating and mitigating factors. The judgement’s intention to protect the application of judicial discretion while imposing a death sentence is the most significant aspect of it. By taking away this discretion, a law becomes harsh and consequently, a savage punishment is imposed. Therefore, this decision will be instrumental in protecting judicial discretion in matters involving the sentencing of the death penalty.

Conclusion

As the global forum and the United Nations deliberate constantly to abolish the death penalty as a form of sentencing to fully realise the right to life, India has been seen to go against resolutions that demand the complete abolition of the death penalty. The death penalty is still a reality in India due to its excessive reliance on deterrence and retributive theories of punishment. The justification given for allowing the constitutional existence of the death penalty in India is that it is not mandated anywhere and is always present with an alternative form of sentencing wherein the court has the discretion to apply judicial mind while deciding the appropriate form of sentencing. Therefore, it becomes all the more important to review the constitutional aspects of the death penalty and understand why it is deemed to be constitutional by the judiciary. Cases like Mithu vs. State of Punjab are contrasted with judgments like Bachan Singh vs. State of Punjab to understand and analyse the judicial stream of thought that protects the constitutional validity of the death penalty while giving essential directions on its imposition.

Frequently asked questions

What is the ratio in the case of Mithu vs. State of Punjab?

The ratio in the case of Mithu vs. State of Punjab states that the death penalty is constitutional only when there is an alternative option of life imprisonment or any other form of sentencing available to the court. If the right of the court to apply judicial discretion is taken away by a law, then the law is unconstitutional. If the procedure of providing special reasons for imposing the death penalty and allowing a convict an opportunity to be heard before sentencing is reduced to a mere formality, then the law is unconstitutional.

In which case in independent India was the death penalty first sentenced?

The first case in Independent India that imposed the death penalty as a sentence on the convict is the case of Nathuram Godse vs. The Crown (1949). The convict of Mahatma Gandhi’s murder, Nathu Ram Godse, was hanged till death for the said offence. Later on, the death penalty was imposed on Afzal Guru in the case of State of Delhi v. Navjyot Sandhu (2005), who attacked the Indian Parliament and then Ajmal Kasab in the case of Md. Ajmal Md. Amir Kasab v. State of Maharastra (2012), for being responsible for the Mumbai attack of 2008.

What are some examples of offences where the death penalty can be imposed as a punishment?

Some of the offences that provide the imposition of the death penalty are: Waging war against the government; abetment of suicide by a child or an insane person; kidnapping for ransom, rape on women under 12 years of age; dacoity with murder; gang rape on women under 12 years of age; and giving false evidence that leads to an innocent person suffering death.

Which case decided the constitutional validity of the death penalty?

The case of Bachan Singh vs. State of Punjab upheld the constitutional validity of the death penalty. It was also decided that the imposition of the death penalty is valid only when it is done after the application of judicial discretion following the procedure established by law. Even though it is constitutionally valid, it should be imposed in the rarest of the rare cases.

References

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Indibility Creative Pvt. Ltd and others vs. Government of West Bengal (2019)

By

Vanshika Kapoor

-

June 23, 2024

0

Externment and the Indian Constitution : a critical analysis considering the golden triangle of the Indian Constitution.

This article is written by Easy Panda. The present article provides a detailed study of the case of Indibility Creative Pvt. Ltd. and Ors vs. Government of West Bengal (2019), along with the facts, issues raised, arguments of the parties, and the rationale behind the judgement. The article also delves into the laws involved and provides an analysis of the judgement given.

Table of Contents

Introduction

Freedom of speech is all about the right to speak, write, and share your own ideas, views, and opinions without any kind of fear. It is your right to express your opinions without any government restrictions. It is one of the most important fundamental rights and the most disputed. However, it is a disputed right because it includes balancing the protection of individual liberty with the need to maintain public order, prevent harm, and protect the rights of others. Since it has to do with how citizens defend all of their other rights and liberties, it is an essential right. If we as citizens could not freely speak about the policies and steps taken by the government, then we would have no adequate reason to take part in the democratic process or complain when we feel that the behaviour of the government is threatening our security or our freedom. Freedom of speech is one of the main pillars of our country and its absence will weaken our democracy.

The goal of democracy is to have a positive and obedient society, and to make this happen prosperously, citizens should be able to freely speak, share their views, ideas, and opinions about how they want their country to be governed and criticise the wrong. These ideas, views, and opinions should not only be confined to the election days; rather, they should be like a two-way conversation that should happen over the term of a particular government. It is important because it fights for the truth, makes its citizens more responsible, leads towards the active contribution of the citizens, etc. The case which we will be discussing in this article revolved around the concept of freedom of speech and expression and how the same was violated by the state by unofficially putting a ban on the screening of the movie.

Details of the case

Case Name- Indibility Creative Pvt. Ltd. and others vs. Government of West Bengal

Case No- Writ Petition No. 306 of 2019

Case Type- Civil Appeal

Equivalent citations- AIR 2019 SC 1918, AIROLINE 2019 SC 242

Acts involved- Constitution of India, Cinematograph Act,1952, and West Bengal Cinemas (Regulation) Act, 1954

Important Provisions- Article 14, Article 19(1)(a), Article 19(1)(g), and Article 21 of the Indian Constitution, Section 5B and Section 13 of the Cinematograph Act, 1952, and Section 6 of the West Bengal Cinemas (Regulation) Act, 1954.

Court- Supreme Court of India

Bench- Justice Hemant Gupta and Justice Dhananjaya Y Chandrachud

Date of Judgement- 11 April, 2019

Background of the case

The case of Indibility Creative Pvt. Ltd. & Ors. vs. Government of West Bengal (2019) is one such case that deals with the right of the producers to screen a particular film after accepting a convenient certification from the Central Board of Film Certification (hereinafter referred to as CBFC) counting the comparable duty of the State to protect fundamental rights of its citizens. This case is particularly concerned with an unofficial ban on the Bengali film “Bhobishyoter Bhoot”, which basically means ‘Future Ghosts’. Also, to get more insights, we should look into the concept of CBFC for better comprehension.

Central Board of Film Certification

CBFC is a legal film-certification body that works under the guidance of the Union Ministry of Information and Broadcasting. It is basically known as the “Censor Board”. Its main purpose is to administer the public screening of films in conformity with the Cinematograph Act of 1952. Films that have already been released in theatres and on television may only be publicly granted in India after they are certified and modified by the CBFC. Its main objective is to render good and healthy entertainment, recreation, and education to the public. CBFC makes the certification process more transparent and obligatory. It also educates the advisory panel members, the media, and filmmakers about the requirements of the certification and presents film trends through various meetings and workshops. CBFC uses computerisation and technological infrastructure to implement new technologies in the certification process. It also maintains clarity related to the CBFC’s actions through spontaneous disclosures, responses to RTI requests, e-governance applications, and the release of the annual reports.

Facts of Indibility Creative Pvt. Ltd and others vs. Government of West Bengal (2019)

‘Bhobishyoter Bhoot’ translated to mean ‘future ghosts’ was a Bengali film that was co-produced by three petitioners. The petitioners were, namely, a company and two directors. The company was established in 2017. The second petitioner was a renowned director who had earlier produced various films such as ‘Ascharjyo Prodeep’ and ‘Meghnadbodh Rohoshyo’, a political thriller that was selected in the Indian Panorama Section of the 48th International Film Festival of India held in Goa in 2017. This movie, ‘Bhobishyoter Bhoot’, was also shortlisted for the ARFF International Barcelona Jury Award 2018.

The movie ‘Bhobishyoter Bhoot’ was a social and political satire about ghosts who wanted to make themselves relevant in the future by rescuing the marginalised section of society. The film focuses on the pristine value of journalism, filmmaking, and politics, which society sees as compromised. The film revolved around a greedy real estate developer who wanted to convert a damaged old home into a mall. The film adopted the agency of ghosts as the protectors of the house against the builders.

The movie Bhobishyoter Bhoot received UA certification from the Central Board of Film Certification on 19 November 2018. Before the national release of the movie, the movie was set to be released in Kolkata and some other districts of West Bengal on 15 February 2019. The promotion of the film was made through electronic print and social media to create interest in the minds of the targeted audience.

Four days prior to the release of the movie in Kolkata and other districts of West Bengal, on 11 February 2019 the second petitioner received a call from the number ‘9830720982’. The caller identified himself as the officer of the State Intelligence Unit of the Kolkata Police, Dilip Bnadopadhyay. The next day, on 12 February 2019, the petitioner received a letter from the State Intelligence Unit to arrange a prior screening of the films for the senior officials of the unit. The contents of the letter stated that the contents of the movie may hurt the public sentiments of the people, which could result in public unrest. The petitioner responded that they already have obtained clearance certificates from CBFC and the State Intelligence Unit office does not have the jurisdiction to ask for the private screening because it will violate the Rule of Law.

After the film was released on 15 February 2019 the first show aired at 11 a.m., and a separate show was arranged at 5:50 p.m. for the press, cast, and crew. The problem arose the next day when, within a day of the release of the movie, the majority of the exhibitors took the film off their screens without any communication from the producers. They started refunding the ticket price without offering any reason to the producers. When the director, together with some of the cast and crew, went to visit the exhibitor at Inox City to enquire about the sudden removal of the film from the theatre, they cited that they had been asked to do the same by the higher authorities. Several other exhibitors claimed that they received such instructions from the local police station and that their refusal to do the same would lead to damage to their cinema halls.

By the time the petitioners went to court to let it exercise its original jurisdiction, the film was taken off the screens by the majority of the cinema halls. Out of the forty-eight exhibitors, only two in the outer district of West Bengal continued to exhibit the film.

The sudden removal of the film from the cinema halls received a considerable degree of unwanted attention. Many newspapers, such as Ananda Bazar Patrika, The Times of India, The Telegraph, etc produced articles in their editorial. Finally, the director and producers of the film went to the Supreme Court for the violation of their right to freedom of speech and expression and to dismiss the ban that was put on the screening of the film.

Issues raised

The following issues were in front of the Hon’ble Supreme Court of India-

Has there been a violation of the fundamental rights of the petitioners by the state authority?
Can the state authority interfering in the work of the CBFC be held to be a violation of the rule of law?

Laws involved in Indibility Creative Pvt. Ltd and others vs. Government of West Bengal (2019)

Constitution of India

Article 14 of Constitution of India

In general terms, Article 14 of the Indian Constitution is all about the “Right to Equality,” which is one of the fundamental rights mentioned under the Constitution. It basically states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India,” which means all the citizens of the country should be treated equally without following any kind of discrimination. The equality that an individual is getting in society is directly connected with his/her liberty. This Article of the Indian Constitution has been described in two parts- ‘Equality Before Law’ and ‘Equal Protection of Law’. The term, Equality before the law means all individuals should be treated equally irrespective of their caste, class, race, gender, etc. The state has no authority to provide any kind of special advantage to any community or people in the country. The concept of equal protection of the law was brought up in Section 1 of the 14th Amendment Act of the US Constitution. Equal protection of the law is a positive aspect of equality. It means anybody residing in the territory of India should be treated equally and should get equal protection of the law.

Article 14 of the Indian Constitution is not an absolute right and has various exceptions to it; for instance, the power that no criminal proceedings can be instituted against the President of the country and the Governor of the state clearly indicates that it is not absolute and can be restricted anytime as per the needs of society.

In the case of the State of West Bengal vs. Anwar Ali Sarkar (1952), there was an issue raised about whether the West Bengal Special Courts Act, 1950, was constitutional or not. The Supreme Court, after hearing the arguments of the parties, found no rational principle to the distinction made between a person tried by Special Courts and a person tried by an ordinary criminal court. Thereby, declaring Section 5(1) of the Act unconstitutional and violative of Article 14 of the Constitution.

Article 19(1)(a) of Constitution of India

Article 19(1)(a) of the Indian Constitution is all about the “Right to freedom of speech and expression”, which means all the citizens of the country have the right to express their thoughts freely. The right given to the citizens under this article not only enables them to speak freely in a liberal environment but also enables them to raise their voices against any wrongful act going on in society without any fear. This article is one of the most important pillars and the foundation of Indian democracy. It allows its citizens to express their thoughts, views, and ideas freely, which helps in the positive development of the nation. However, these rights also have some restrictions, so there should not be any kind of misuse of rights. The idea behind providing this right to the citizens of the country is to safeguard them from irrelevant restrictions imposed by the government. With the right to freedom of speech and expression, Article 19 also provides some other rights to its citizens, like the right to assemble, freedom to move freely, freedom to reside in any part of the country, etc.

There are certain restrictions on the right to freedom of speech and expression, as it is not an absolute right. Under Article 19(2), the restrictions are mentioned as follows:

India’s sovereignty and integrity;
State’s security;
Friendly relations with foreign states;
Defamation;
Relation to contempt of order;
Public order, morality;
Provocation to an offence.

In the case of Romesh Thappar vs. State of Madras (1950), the Supreme Court held that the order made by the government upon the restrictions made by the Madras Government on the entry and dissemination of Thappar’s journal was unconstitutional and unlawful as it was uncertain and was not justified. Further, it was highlighted that restrictions on the right to freedom of speech and expression can only be done in a narrow and justified manner and only in some specific situations. Therefore, the decision of the Supreme Court in this case demonstrates a very important criterion in order to safeguard the fundamental right of freedom of speech and expression. Additionally, these rights were energised even in the context of public safety.

Article 19(1)(g) of Constitution of India

Article 19(1)(g) of the Indian Constitution states, “Freedom of profession, occupation, trade or business”. It provides a fundamental right to the citizens to exercise any profession or to opt for any occupation, trade, or business. It empowers its citizens to take part in any economic activity. The rights given to the citizens under this provision are quite vast in nature, as they encircle every source of income. It basically does not involve any kind of unlawful right to exercise any trade, business, occupation, or profession by any individual. The right to do business under this provision is only applicable to the citizens of India. According to this Article, citizens include:

Any Company registered under the Companies Act, 2013
Any religious group
Any juristic person or any idol

This provision provides rights against the State or any State entity, which means that any right that is violated by the state against any individual will be dealt with under civil law or tort law, not under this provision. The rights that are provided under Article 19(1)(g) of the Indian Constitution are not absolute in nature and have some restrictions under Article 19(6) of the Indian Constitution. The restrictions are as follows:

Interest of the general public
Determine any professional or technical qualifications
Monopoly of State

In the case of Vishaka & Ors vs. State of Rajasthan (1997), the Supreme Court noticed that the sexual harassment of women at workplaces is also violative of the fundamental rights under Article 19(1)(g) of the Indian Constitution. The Supreme Court issued exhaustive guidelines and required directions to forbid cases of sexual harassment of women at workplaces, both in the public and private sectors.

Article 21 of Constitution of India

Article 21 of the Indian Constitution defines the fundamental rights to life and personal liberty of any individual, including foreigners. However, the Constitution of India does not allow a foreigner the right to reside and settle in India under Article 19(1)(e). This provision prevents the intrusion upon an individual’s right to life and personal liberty by the State. The right to life is one of the most important rights. The right to life is not only confined to the act of breathing or mere animal existence. It has a much wider aspect, including the right to live with human dignity. This provision has been defined as the “heart of fundamental rights” by the Supreme Court. This right specifically says that no individual shall be deprived of life and liberty, which implies that it is a right which has been provided to the individual against the State only. Here, the State involves not only the government but also the governmental departments, local bodies, the Legislature, etc.

In the case of A.K. Gopalan vs. State of Madras (1950), it was held by the Supreme Court that personal liberty means the liberty of the physical body and therefore, it did not involve the rights mentioned under Article 19(1) of the Indian Constitution. Thus, personal liberty was considered to involve some of the rights such as the right to sleep and eat, etc. However, the right to move freely was comparably minor and was not included in the “personal” liberty of an individual.

The case of Maneka Gandhi vs. The Union of India (1978) reversed the judgement of the A.K. Gopalan case. In this case, the Supreme Court held that the right to travel and go outside the country must be covered under the right to personal liberty. The Supreme Court also stated that “personal liberty” mentioned under Article 21 of the Indian Constitution has a wider aspect and covers a bunch of rights that are related to the personal liberty of an individual. Therefore, the scope of personal liberty was expanded and it was held to include all the rights acknowledged under Article 21, counting all other rights that are related to the personal liberty of an individual. It was also mentioned by the Supreme Court that any such rights could only be barred by a procedure provided by law, which had to be fair, just, and reasonable and should not be inhuman or arbitrary in nature.

Cinematograph Act, 1952

Section 5B of Cinematograph Act, 1952

Section 5B of the Cinematograph Act, 1952, states the principles that need to be followed by the CBFC during the sanctioning of films. It entitles the CBFC to inspect and implement principles of sovereignty and integrity of the country while certifying a film. This provision also empowers the CBFC to look into matters that are against the State’s security, friendly relations with foreign states, etc.

Subclause 2 of this section lays down various guidelines that the CBFC is required to follow while sanctioning films. The guidelines are as follows:

There should be pure and healthy entertainment provided by the film.
The certification provided to the film must be sensible to social change.
The CBFC must judge the film without any bias.
The medium of the film must harmonise with the values of society.
The film must be cinematographic in a decent manner.
Any kind of freedom of creation or artistic expression should not be unnecessarily restrained.

In the case of S. RangaRaan vs. P. Jagjivan Ram (1989), the question raised was whether the Tamil film named “Ore Oru Gramathile” should be certified with the “U” certificate. The film allegedly derogated the exploitation of people on a caste basis. So in this case, the Supreme Court held that, seeing that there is no pronouncement in the film that threatens to overturn the government by any unlawful means and there is no such opportunity as to damage the integration of the country, the “U” certificate can be granted.

Section 13 of Cinematograph Act, 1952

Section 13 of the Cinematograph Act, 1952, mentions the powers of the central government or the local authority regarding the suspension of an exhibition of films in certain cases. The Lieutenant-Governor or Chief Commissioner, in reference to the whole or a part of a Union territory, and the District Magistrate with regard to the district that is within his jurisdiction, may suspend the screening of the film by making an order if he feels that any film that is being screened publicly has the probability to cause a violation of peace, and during the time of such suspension, the film shall be believed to be an uncertified film in the state or district.

Also, a copy of the order passed by the concerned authority mentioned above, together with a statement of the required reasons, shall be promoted by the concerned authority, making the same to the central government, and the central government may accept or reject the order. An order passed by the mentioned authorities under this section shall remain operative for a period of two months from the date thereof, but the Central Government has the power to extend the period of suspension as it thinks fit if it feels that such an order should continue in operation.

In the case of Swami Darshan Bharti Alias Devendra vs. Union of India & Ors (2018), the Uttarakhand High Court did not find any merit in the case, which was concerned with the power of the district magistrate to restrain the exhibition of the film and therefore chose not to interfere in the decision of the magistrate and the petition was dismissed.

West Bengal Cinemas (Regulation) Act, 1954

Section 6 of West Bengal Cinemas (Regulation) Act, 1954

Section 6 of the West Bengal Cinemas (Regulation) Act, 1954, provides the powers of the State Government or the District Magistrate regarding the suspension of the exhibition of films in certain cases. The State Government, in reference to the whole or a part of West Bengal, and the District Magistrate with regard to the district that is within his jurisdiction may suspend the screening of the film by making an order if he feels that any film that is being screened publicly has the probability to cause a violation of peace, and during the time of such suspension, the film shall be believed to be an uncertified film in the state or district.

The District Magistrate shall forward a copy of the order issued by the District Magistrate as specified in Section 6(1), along with a justification statement, to the Commissioner of the Division that includes the district that the District Magistrate oversees. The Commissioner may choose to accept or reject the order.

Provided that before accepting any such order passed by the authority, the Commissioner shall give to persons stopped from screening the film, a chance of showing cause against such order.

An order passed by the mentioned authorities under this Section shall remain operative for a period of two months from the date thereof, but the State Government may, in cases where an order is passed by itself, and the Commissioner has the power to extend the period of suspension as it thinks fit if it feels that such an order should continue in operation.

Arguments of the parties

Petitioner

The petitioners were being represented by learned counsel, Mr. Sanjay Parikh.

The petitioner submitted that the state of West Bengal has no jurisdiction either under the West Bengal Cinemas (Regulation) Act, 1954 or the Cinematograph Act, 1952, to put any restriction on the film. Still, a majority of the theatre owners and exhibitors had pulled the film from their screens. When producers talked to INOX Leisure Ltd. about the same, they stated that they were directed by the authorities to discontinue the screening because the guests may not find it suitable.

The counsel further submitted a chart that had a list of all the theatres where the film was being screened outside Kolkata and with that, they rested their arguments.

Respondent

The respondents were represented by learned senior counsel, Dr. Abhishek Manu Singhvi.

After the petition came up on 25th March, learned counsel informed the court that to put in effect the earlier direction of the court regarding the interim order of not putting any obstruction or restrain in the screening of the film to the Chief Secretary and the Principal Secretary of the Department of Home in the Government of West Bengal. The Additional Director General and Inspector General of Police, West Bengal, had issued directions to District Superintendents of Police, Commissioners of Police, Range Deputy Inspector General of Police, Zonal Inspector General of Police, and Additional Director General of Police by letter. The respondents also informed the court that no direction had been issued by the Government of West Bengal to ban the film and that no provision of Section 6 of the West Bengal (Regulation) Act 1954 or Section 13 of the Cinematograph Act was violated.

Further, the petitioner claimed that the film is being screened on more than 10 screens outside Kolkata. The Director and Inspector General of Police, West Bengal, filed an affidavit claiming that, with respect to the earlier order of the court, they have issued letters to all the exhibitors and theatre owners indicating that there was no ban imposed on the screening of the film.

Judgement in Indibility Creative Pvt. Ltd and others vs. Government of West Bengal (2019)

The Court, after hearing the arguments of the petitioner and respondent, issued directions to the Joint Commissioner of Police to withdraw the communication that was addressed by him to the producer of the film and the Principal Secretary of the Department of Home and Director General of Police, West Bengal, to immediately inform the theatres that no order regarding the stoppage of screening of the film has been passed. The Court also ordered to take the necessary steps for the safety of the theatre and the public who wished to watch the movie.

The Hon’ble Supreme Court issued the writ of Mandamus to prevent the state from taking any extra-constitutional means to prevent the lawful screening of the film Bhobishyot Bhoot and directed the respondent to pay a sum of Rs. 20 lakhs within a period of one month to the petitioners. The petitioners were also entitled to a sum of Rs. 1 lakh as the cost of proceeding, which was also to be paid over within a month.

Rationale behind

The Hon’ble Supreme Court, while pronouncing the judgement, relied on the fact that once the film has been certified by the authority, no other government authority can issue any formal or informal direction to prevent the film from being screened. If such orders are passed, then it will clearly be a violation of the right to freedom of speech and expression guaranteed under Article 19(1) of the Constitution of India.

The Hon’ble Court also held that in a free society, the police cannot act as a self-appointed guardian of public decency and morality. The court said that they cannot be a part of a party that is responsible for the suspension of freedom of speech and expression. The Joint Commissioner should have kept in mind the release of the film when he sent the letter to the Director of the movie. Any doubt that he might have regarding the screening of the film creating public unrest should have been laid to rest when the directors informed him that the film had received certification from the CBFC.

The court held that any order that is issued under the statutory provision of the Cinematographic Act, 1952, is under the supervisory jurisdiction of the High Court under Article 226 or under the original jurisdiction of the Supreme Court under Article 32 of the Constitution. Any excess or abuse of the statutory provision is amenable to constitutional guarantees, which protect the citizen against arbitrary state action. The court held that such arbitrary actions of the state are checked by the rule of law. The action of the state poses immense danger to free speech because the citizens are left without any information as to why such actions are performed.

The court was of the opinion that if the rights of the playwright, artist, musician, or actor are subject to societal notions of what is acceptable or not, it will lose its true meaning. The main purpose of art is to question and provoke. In an effort to find a new meaning of existence, the artists are entitled to full liberty of satire and irony and freedom to critique and criticise.

The Constitution gives every individual the power to communicate as well as to conceptualise. The court has found that our country is democratic because it recognises the absolute freedom of every citizen.

Finally, the court held that the views of a writer of a play, the work of a poet, and sketches of a cartoonist might not be acceptable to those who criticise them. Those who do not agree with their criticism have a simple choice of not watching the film, not reading those texts, etc. The Constitution does not permit the authority to crush the freedom of others to believe, think, and express. If done so, these acts will pose a great threat to fundamental human freedom and will be accompanied by the dictatorial behaviour of the state.

Precedents referred

The Hon’ble Supreme Court while pronouncing the Judgement relied upon various case laws and philosophies of various thinkers.

The court relied upon the constitutional cases of Romesh Thapar vs. State of Madras (1950), which was one of the first cases related to freedom of speech and expression. The court observed that the importance of free speech and freedom of the press is essential for a democratic society and that is the reason for setting tough limits for permissible legislation to tamper with it. Without free political discussion, the proper functioning of the government is not possible.

The Court further relied upon the case of LIC vs. Manubhai Shah (1992), where the two-judge bench of the Supreme Court decided upon two appeals concerning common questions of law involving censorship of content by state-controlled entities. The first appeal was related to an academic publication that criticises schemes of the Life Insurance Corporation, to which they replied through their magazine. The second appeal was against Doordarshan’s refusal to broadcast a documentary film that was based on the Bhopal Gas tragedy. The court set aside the decisions of both state-controlled entities, stating that they should reject content only on the basis of valid grounds. Justice A M Ahmadi held that every citizen of the country has a right to publish his or her views through any media if they are within the ambit of Article 19(2) of the Constitution. The print media, radio, and all other screens play the role of public educators, which is necessary for a healthy democracy. Any attempt to not let the work be expressed could be termed as dictatorship. Therefore, in a democratic set up circulation of news and views for popular consumption is a must and any attempt to curtail the same must not be entertained unless it falls under the exception of Article 19(2).

The court also relied upon the case of Gajanan Visheshwar Birjur vs. Union of India (1994) where the petitioner challenged the confiscation of books that contained the writings of Mao Zedong. The books were imported from China under the provisions of the Customs Act, 1962. The Court noted that no explanation was given for confiscating the books. Justice Jeevan Reddy was of the opinion that any attempt to control a democratic society would not lead to the evolution of society and would result in failure. An idea can never be killed and any attempt to suppress it can never be a successful permanent policy.

The Division Bench of Madras High Court in the case of S. Rangarajan vs. P. Jagjivan Ram (1989) revoked the U-certificate that was granted to the Tamil film Oru Gramathile, which dealt with the issue related to reservation. Later, the three-judge bench of the Supreme Court laid down the duty of the state to protect freedom of speech and expression. The court found that if the film is unobjectionable and cannot be constitutionally restricted under Article 19(2) of the Constitution, then freedom of speech and expression cannot be suspended on account of a threat of violence. It is the duty of the state to protect such freedom, as it is guaranteed by the State and the state can not plead its inability to handle the violent audience. The court also considered the film being passed by two reviewing committees and held that the members of the committee come from different walks of life with a lot of experience and represent the ins and outs of the community. They have judged the film according to the guidelines provided in the constitution. The court concluded that freedom of speech and expression is a legitimate and constitutionally protected right and it can not be denied screening on the basis of a few intolerant groups. It also held that criticism of government policies is not valid grounds for restricting the screening of the film.

The court also referred to the case of D.C. Saxena vs. Hon’ble The Chief Justice of India (1997), where Justice K. Ramaswamy was of the opinion that debate on public issues should be without any restriction and shall include sarcastic comments as well as criticism of the government and public officials. When there are no restrictions in this area, debates can happen more often, which could help a political party come to power in the most democratic way. Any restriction on freedom of speech and expression on public issues will be said to hamper the stability of the community and will result in revolution.

The court then referred to the case of KM Shankarappa vs. Union of India (2000) where Section 6(1) of the Cinematograph Act, 1952, was in question. This section gave the power to the central government to pass any order it may deem fit with respect to any film which is pending before the Board or Appellate Tribunal constituted under this Act. The central government under this Act also has the power to review or revise any decision made by the Board or the Appellate Tribunal. The two-judge bench of the Honourable Court was of the opinion that the apprehension of a violation of law and order situation is beyond the understanding of the court because once an expert body, after analysing the impact of the film, has cleared it, no excuse for a violation of law and order could be taken. It is the duty of the state government to maintain law and order in the state. Dissimilarity in views is a sign of a democratic society and just because a particular section of society has different views than that of the Tribunal and they choose to view it through unconstitutional means, it cannot be grounds for the state government to review or revise the decision of the Tribunal.

The court referred to the case of Director General, Directorate General of Doordarshan vs. Anand Patwardhan (2006), where a documentary film against communal violence was rejected from being telecasted on Doordarshan. The censor board has given a U-certificate to part 1 of the film and an A-certificate to part 2 of the film. Justice A. R. Lakshmanan from the two-judge bench of the Supreme Court held that the respondent has a right to reveal his views on the oppression of women, his imperfect understanding of manhood, and the evils of communal violence through a documentary film produced by him. Freedom of expression is a legitimate and constitutionally protected right that cannot be compromised. The court regarded the film as relevant to current society and found that it has a serious message to present. The court further found that the refusal of Doordarshan to telecast the film was because of a unanimous decision of their own committee, which was set up under the earlier direction of this Court. The Bombay High Court later held that when the decision-making process has given permission to telecast the film, Doordarshan can not avoid that decision. The Supreme Court finally held that Doordarshan is a state-owned entity and cannot deny the screening of the documentary without any valid grounds.

The Hon’ble Supreme Court also took note of the case of Anand Chintamani Dighe vs. State of Maharashtra (1990), in which the government of Maharashtra had issued a notification that every copy of the play “Mee Nathuram Godse Boltoy” and its translation in any other language would be forfeited by the government. The Bombay High Court put a stay on the notification and held that the creative work of people engaged in fine art and culture is protected by the Constitution. Our Constitution provides a healthy tradition of respect for believers as well as non-believers and conservatives as well as liberals. The process of control is against the democratic values of our country. Article 19(1) not only protects the right to literary activities but also the right of society and the community to be informed about the happenings. The right to information is an important part of Article 21 of the Constitution. All the citizens of the country must have the right to receive news and any other information. The information can be different from what is widely held as common. The diversification of viewpoints creates an ability on the part of society to exercise a right of choice.

The court also relied upon the case of F.A. Picture International vs. Central Board of Film Certification (2004), Mumbai where the Central Board of Film Certification denied giving a certificate to a film on the ground that the film had many visuals of violence and gruesome killings and there were many characters in the film who resembled real-life personalities. The division bench of the Bombay High Court quashed the order of the Central Board of Film Certification by observing that a film whose plot is based on the backdrop of communal violence cannot be shown without a portrayal of violence. The right of the director to show the film in any form is protected by the Constitution. The argument of the petitioner that the characters in the film bear a resemblance to real-life personalities is not valid, as the Constitution gives the filmmaker the right to depict any real-life character. The Hon’ble Court finally held that critical appraisal is one of the underlying principles of democracy and this film will act as a means to contribute to that appraisal.

The Court also referred to the case of Vishesh Sharma vs. State of Bihar (2008), where a single judge bench of the Patna High Court quashed a criminal proceeding instituted against the persons who were involved in producing a television serial that had allegations that the serial had characters who resembled the family of the former Chief Minister of Bihar. It was argued that the serial was made to defame the family of the former Chief Minister. Justice Navaniti Prasad Singh held that creative art is free to depict the picture of the society, the political system, or the person in politics in the manner he wants. They are free to make political satire until they are doing that in the course of public morality and decency. Any creation of a creative artist can not be questioned on the grounds that it affects the super-sensitive people of society who are not used to hearing criticism.

The court also relied upon the case of Maqbool Fida Hussain vs. Rajkumar Pandey (2008), where the petitioner was charged with hurting religious sentiments and obscenity for his painting which showed India as a nude woman with her hair flowing in the form of the Himalayas. Justice Sanjay Kishan Kaul opined that pluralism, along with the right to dissent, is the sole source of democracy. The dissenter should be free of the thought that he might be harmed or held captive for his dissent. The real meaning of freedom lies only when the person is free of any social sanction after he has exercised his right to freedom.

In another case, Prakash Jha Productions vs. Union of India (2011), the Uttar Pradesh government banned the screening of the film ‘Aarakshan’ which dealt with the issue of reservation, even after the film was duly certified by the Censor Board constituted under the Cinematograph Act. The argument presented by the UP government was that it would disrupt peace in society. The Court in this case relied upon the ruling in K.M. Shankarappa vs. Union of India and held that it is the duty of the state to maintain law and order in the society. Once the film is cleared by the board for screening, the government can not prohibit the screening of the film.

In another case, S. Tamilselvan vs. State of Tamil Nadu (2015), it was alleged that a Tamil novel had mentioned conventions that were nonexistent and defamatory to the residents of a certain area. A writ petition was filed before the Madras High Court alleging that the state officials were under the influence of extra-judicial elements and had forced the author to withdraw the unsold copies of the book and ask for an apology. Justice Sanjay Kishan Kaul, on behalf of the Division Bench of the Madras High Court, referred to the case of Maqbool Fida Hussain vs. Rajkumar Pandey, where they held that it is the duty of the state government to ensure that law and order are maintained in society. The state and the police authorities may not be the best to judge such literary and cultural issues and therefore it should be left to the discretion of the court to decide.

Another case to which this Court referred was Viacom 18 Media Pvt. Ltd. vs. Union of India (2018) where the three-judge bench of this Court granted a stay on the notification and order that were issued by some states banning the screening of the film ‘Padmavat’ even after the film was granted a certificate by the Central Board of Film Certification. The then Chief Justice Deepak Mishra held that once the film is granted a certificate by the CBFC, the non-screening of the film will amount to an infringement of the fundamental right of free speech and expression of the petitioner. They again stress the effort of the state government to maintain law and order in society whenever the film is screened.

Critical analysis

This judgement of the Supreme Court will act as a precedent for the lower court and other High Courts for matters which are similar to this case and involve a substantive question of freedom of speech and expression. The judgement dealt with the rights of the producers of the film to exhibit their film after receiving due authorisation from the Central Board of Film Certification.

The Supreme Court, through this judgement, recognised the role of the CBFC as a central body for film certification and possession of the sole authority for certification of any film. The central government or state government does not have the power to interfere in the work of the CBFC until, in certain cases, the revisional power of the government is exercised. Apart from this, the executive has the power to suspend the exhibition of any film if it is likely to cause damage to the peace of society. But in the present case, no such act was recorded, which could have been said to disrupt the peace. Also, the Government of West Bengal has informed the court that they haven’t exercised any such power. Therefore, it was finally held that the unconstitutional measures taken by the government to prohibit the screening of the film resulted in the violation of the freedom of speech and expression of the petitioners.

The Honourable Supreme Court further identified the need to clarify that all things can be included in the ambit of the right to freedom of speech and expression. The Supreme Court identified the importance of free speech in a democracy and the repercussions of curbing the right. The Supreme Court identified this right as an indivisible aspect of every individual, which will further support the progress of the nation. The Supreme Court also laid emphasis on the fact that unless any act does not fall under the ambit of restriction as mentioned in Article 19(2) of the Indian Constitution, the state should not hamper the freedom of speech and expression. The Court also took note of the recent social intolerance present in our society, which results in the rights of artists, writers, and directors being hampered unconstitutionally.

The judgement of the court further dealt with the role of art in human society and its contribution to the flourishing of society. The court finally concluded that there was an unconstitutional attempt to violate the right of freedom of speech and expression of the petitioner by the state and therefore awarded damages to be paid to them by the state authorities.

Judgements in which this case was relied on

The case of Indibillity Creative Pvt Ltd vs. Government of West Bengal (2019) was referred to by the Honourable Judges of the Supreme Court in the case of Ranjit Singh Phoola vs. Union of India and Ors. (2022) where a writ petition was filed in the Supreme Court for cancellation of a certificate that was granted by the CBFC to the Punjabi Film ‘Masand’, which was set to release on 10th November 2022. The main concern of the petitioner was that it showed the Nihang community of the Sikh religion in a violent manner, which hurt the sentiment of the community. The petitioner wanted to put a ban on the screening of the movie. However, the Punjab and Haryana High Court referred to various judgements, including Indibillity Creative Pvt Ltd vs. State of West Bengal and held that CBFC has duly given a certificate to the film by analysing all the various aspects of the film and thus no ban should be imposed.

Conclusion

Indibility Creative Pvt Ltd vs. Government of West Bengal (2019) is a progressive judgement that proposes the modern aspect of liberalism. It flashes the correlation between two different yet close areas of human civilisation, i.e., constitutional guarantees and art as an incarnation of freedom. This judgement also engages the positive law of the land, i.e., it uses the Constitution and the principles of natural justice to make a reasonable decision. It provides for the damages in monetary terms and by ordering the uncontrolled screening of the films. The judgement highlights the importance of adhering to freedom of speech for individual choice, the welfare of minorities, social progress, and democracy. It works as a primary instance of “constitutionalism” and also works as an initial for future cases regarding violations of media rights.

Frequently Asked Questions (FAQs)

What are the types of CBFC certification?

There are four types of certification issued by the CBFC. They are, namely – ‘U’ for unrestricted public exhibition, ‘A’ for only adults, ‘UA’ for films that require parental guidance for children under 12 years of age, and ‘S’ for a special group of audience members.

How many films have received certification from CBFC?

There are a total of 1,18,705 films, which include both Indian and foreign films that have received certification from CBFC.

U- till now 75,501 movies have received U certificates from CBFC. There is no information about the first film to get the U certificate.

A- 3417 films have been granted an A certificate from the CBFC. Hanste Aansoo of 1950 was the first movie to receive this certification.

UA- till now, 39,789 movies have received UA certificates from CBFC.

S- Only 1 film is given an S certificate by CBFC.

Is freedom of speech a democratic right?

Yes, the right to freedom of speech is a democratic right that allows citizens to freely express their views, ideas, and opinions without any kind of government restrictions. Through the First Amendment of the United States, the freedom of speech concept was brought into the picture, like all modern republics, placing restrictions on this freedom.

References

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Prison system : role and reforms made w.r.t India

By

Vanshika Kapoor

-

June 22, 2024

0

This article has been written by Rabia pursuing a Diploma in Legal English Communication – oratory, writing, listening and accuracy from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

A prison, also known as a jail or correctional facility, is a place where people are held in confinement, usually as a punishment for a crime. Prisons can be local, state, or federal, and they vary in size and security level. Some prisons are designed to house low-risk offenders who are serving short sentences, while others are designed for high-risk offenders who are serving long sentences or who have a history of violence.

Prisons are typically run by government agencies. Prisoners are housed in cells or dormitories, and they are typically provided with food, clothing, and medical care. They may also be offered educational and vocational programmes to help them prepare for life after prison.

Prisons can be a dangerous and difficult place to live. Inmates may be subjected to violence, abuse, and sexual assault. They may also suffer from mental illness and addiction. However, prisons can also be a place of hope and redemption. Many inmates are able to turn their lives around and become productive members of society after they are released from prison.

Definition

According to Sethana, “Prisons are those places where the convicted person are kept or where the person on whom proceedings are going on in the courts are kept.”

Characteristics

A prison is a place or area where prisoners are kept. Prisons are run by the state government. The convicts are kept in prisons temporarily or permanently. The person who has been proven guilty or is likely to be proven guilty of some crime is kept in prison.

Role and objective of prisons

The objective of prison is not to retaliate against an offender. It aims to make a prisoner a better human being so that he may become a good citizen and useful person for society in the future. There are various means to do so like prison labour, education, religious instructions, etc. The possibility of a prisoner’s reformation depends greatly on his nature. If the prisoner is such a hardened criminal who has committed many heinous crimes, he cannot be reformed in any way. On the other hand, if the prisoner is simple and has committed crimes under sudden provocations or compelling circumstances, he can be reformed to some extent.

Is it a state matter or a centre matter

Prison is a state subject under the state list of the 7th Schedule to the Constitution of India. Regular guidance and advice to states and union territories (UTs) on various issues concerning prisons and inmates is given by the Ministry of Home Affairs. Presently, prisons are governed by the Prisons Act of 1894 and the prison manuals of their respective states.

Historical background

Prisons are not only centres for serving punishment; they are also centres for rehabilitation and reintegration. With the Minute by TB Macaulay 1835, the modern prison in India was originated . This minute is a very important document. On February 2, 1835, Macaulay presented his minute on Indian education, which established the need to impart English education to native Indians. Later, the Prison Discipline Committee was appointed. This committee submitted its report in 1838. The committee rejected all humanitarian needs and reforms for the prisoners. So instead of following the reformative theory, they followed the retributive theory of punishment. They believed that all the local laws would become ineffective if they had any humanitarian grounds. It can be observed that it is mostly because most of the prisoners at that point in time were Indians. That is the reason they followed such an inhumane approach. The present jail management and administration system in India is based on the Prisons Act 1894.

Structure of the criminal justice system in India

The criminal justice system in India is a complex and multifaceted system that is responsible for upholding law and order in the country. It is enforced through a number of laws, including the Code of Criminal Procedure (CrPC), the Indian Penal Code (IPC), and the Indian Evidence Act, 1872.

The CrPC is the primary law that governs criminal procedure in India. It sets out the procedures that must be followed by the police, the courts, and other criminal justice agencies in order to ensure that criminal cases are handled in a fair and just manner. The IPC is the main criminal code in India. It defines the various crimes that are punishable under the law and sets out the punishments that can be imposed for each crime. The Indian Evidence Act governs the admissibility of evidence in criminal trials. It sets out the rules that determine what evidence can be presented in court and how it can be used to prove or disprove a case.

In 2023, the Indian government introduced a number of reforms to the criminal justice system. These reforms included the enactment of three new laws: the Bharatiya Nagarik Suraksha Sanhita (BNSS), the Bharatiya Nyaya Sanhita (BNS), and the Bharatiya Sakshya Sanhita (BSS). These laws replaced the CrPC, the IPC, and the Indian Evidence Act, respectively.

The BNSS is a comprehensive law that governs criminal procedure in India. It consolidates and simplifies the provisions of the CrPC and makes a number of changes to the system. The BNS is the new criminal code of India. It replaces the IPC and makes a number of changes to the definition of crimes and the punishments that can be imposed for each crime. The BSS is the new law governing the admissibility of evidence in criminal trials. It replaces the Indian Evidence Act and makes a number of changes to the rules that determine what evidence can be presented in court and how it can be used to prove or disprove a case.

The reforms to the criminal justice system in India are a significant step forward. These reforms will help to make the system more efficient, effective, and just.

Prison reforms: pre-independence and post-independence in India

The prison system in India has gone through significant transformations over time, particularly during the pre-independence and post-independence eras.

Pre-independence era:

Colonial influence: During British colonial rule, the prison system in India was heavily influenced by the British penal system, characterised by a focus on retribution and punishment rather than rehabilitation.
Lack of uniformity: The prison system lacked uniformity, with different regions and presidencies having their own set of prison regulations and practices.
Poor living conditions: Prisons were overcrowded and unsanitary, leading to appalling living conditions for inmates. Disease and malnutrition were rampant.
Limited rehabilitation efforts: There was minimal emphasis on rehabilitation and reformation of prisoners, with few educational or vocational training opportunities available.
Political prisoners: During the freedom struggle, many political activists and freedom fighters were imprisoned, facing harsh treatment and torture.

Post-independence era:

Constitutional safeguards: The Indian Constitution, adopted in 1950, enshrined certain fundamental rights for prisoners, including the right to equality, protection against cruel and unusual punishment, and the right to legal aid.
Prison reforms: Post-independence, India embarked on a series of prison reforms aimed at improving the living conditions of prisoners and focusing on their rehabilitation and reintegration into society.
Model Prison Manual: In 1957, the Model Prison Manual was introduced, providing guidelines for the management and administration of prisons, emphasising humane treatment and providing basic amenities.
Open prisons: Open prisons, characterised by a less restrictive environment, were established to foster a sense of self-reliance and prepare inmates for their return to society.
Educational and vocational training: Educational and vocational training programmes were introduced to equip prisoners with skills and knowledge that could aid their post-release employment prospects.
Rehabilitation programmes: Rehabilitation programmes, including counselling, psychological support, and substance abuse treatment, were implemented to address the underlying issues that may have contributed to criminal behaviour.
Legal aid and access to justice: Efforts were made to provide legal aid and ensure access to justice for prisoners, especially those from marginalised communities.
Juvenile justice system: The Juvenile Justice (Care and Protection of Children) Act 2000 was enacted to establish a separate juvenile justice system, focusing on the rehabilitation and welfare of young offenders.

Despite these reforms, challenges persist in the Indian prison system, including overcrowding, inadequate infrastructure, and limited resources. Nevertheless, the emphasis on rehabilitation and the recognition of prisoners’ rights represent a significant shift from the pre-independence era, underscoring India’s commitment to upholding human dignity and promoting social reintegration.

Issues related to prisons in India

Congestion in jails

Overcrowding among understudies is a major concern. For this under trial population, it has to be reduced significantly. Moreover, the Supreme Court has also declared the right to speedy justice a fundamental right that is present under Article 21 of the Constitution. As per the NCRB (National Crime Records Bureau) data, 117% of our prisons are already occupied.

Unhygienic conditions

Due to a lack of proper medical facilities, most of the prisoners remain untreated. Mostly among female inmates, we can see that they are not well provided with sanitary napkins and basic health facilities.

Custodian torture

Custodial torture among prisoners is quite prevalent .Torture by police is not permitted after the landmark judgement in the DK Basu case in 1986 but the brutal violence is still prevalent inside the prisons. To extract important evidence and extract confessions, police do employ third degree torture, even though it has been declared unconstitutional. As per the NCRB data, custodian deaths have increased.

Impede trials

Cases have been pending for many years, which results in disruptions to the prison administration system. The Supreme Court judgement in Hussainara Khatoon vs. Home Secretary 1979 , famously known as the legal aid case, recognised the right to a speedy trial even for the prisoners.

Women prisoners

A dramatic ascent in the number of female prisoners can be seen in India. Women in incarceration face more challenges in terms of access to basic facilities and services. Moreover, there is an absence of exclusive female prisons in India, which in itself is a huge challenge.

Right to life and personal liberty for prisoners:-

Article 21
Article 39A
An accused has a right to be tried without undue delay {Article 14(3)(c) International Convention on civil and Political Rights}

State of Andhra Pradesh vs. Challa Ramkrishna Reddy:

A prisoner, whether a convict,under- trial or detenu, is a human being and entitled to all fundamental rights until liberty is constitutionally curtailed.

Committees and recommendations of prison reforms

Justice Mulla committee 1983

The Mulla Committee recommended improved prison accommodations, the creation of the Indian Prisons and Correctional Services, and public and media visits for transparency and the reduction of under-trial prisoners through expedited trials.

Recommendations:

Government should form a national policy on prisons.
Government should use alternatives to imprisonment, such as community service, etc.

Justice V.R. Krishna Iyer Committee, 1987

In 1987, this committee was appointed to study the situation of women in prisons in India.

Recommendation:

Induction of more women into the police force.
Separate institutions with women employees alone, especially for women offenders.
Necessary provisions to restore the dignity of convicted women.

In State of Rajasthan vs. Balchand, aka Balia 1978, Justice V.R. Krishna Iyer said that bail is the rule and jail is the exception. From then on, it became a legal principle for courts in India.

Under the chairmanship of the directorate general (BPR&D) in 2005, a national policy on prison reforms was drafted.

Justice Amitav Roy Panel, 2018

Justice Amitav Roy panel 2018 of the Supreme Court recommends several prison reforms:- alternative punishment should be explored, special fast track courts, improvements in lawyer-prisoners ratio, use of video-conferencing for trial , the Supreme Court passing directions to start the process of recruitment against vacancies and several more.

Model Prisons Act of 2023

Due to “several lacunae” (deficiency or gaps) in the old pre independence acts like the Prison Act, 1894, which mainly focus on the retributive theory (revenge theory), there is no provision for rehabilitation of the prisoners under this act. On May 12, 2023, the Model Prisons Act 2023 introduced provisions for gang violence within prisons. This is because of the incident that triggered fear among inmates the killing of 33 year old Tillu Tajpuriya, who was stabbed to death by the members of a rival gang inside the Tihar jail.

Provisions of Model Prisoners Act of 2023

Provisions of punishment for prisoners, along with the jail staff for use of mobile phones or other prohibited items in jail.

Establishment of high security jails and open jails (open jails have relatively less stringent rules as compared to controlled jails). It is minimum security prisons or prisons without bars. (Open prisons have promoted reformative forms of punishment and transformed lives of inmates.)
Provisions for protecting society from the criminal activities of habitual offenders.
Legal aid to prisoners: Article 39 A, DPSP (Directive Principle of State Policy), mentions equal justice and free legal aid as two of the most essential rights. It is the state’s duty to promote justice ,on the basis of equal opportunity , to provide free legal aid ,by suitable legislation or schemes or in any other way.
Parole :It is a form of early release for prison inmates where the prisoner agrees to abide by behavioural conditions. This also includes the check -in with their designated parole officers . If these are not followed, then they may be rearrested and returned to prison.
Furlough: It is the right of prisoners to retain family and social ties . This also helps them counter the ill effects of prolonged time spent in prison.
Premature release: premature release is a discretionary power vested in the appropriate government, the governor and the president under Section 432 of CrPC, 1973 and Articles 161 and 72 of the Constitution of India.
Prison administration board recognises special facilities for women and transgender prisoners.

Provisions for use of technology in prison administration.
Provision for video conferencing with courts.

Conclusion

In a nutshell, we can say that the task of revising the Prisons Act was given to the Bureau of Police Research and Development by MHA (Ministry of Home Affairs ). With the efforts of many, a new act has come into being, the Model Prisons Act 2023. This Act is made after reviewing the provisions of the following 3 acts:

The Prisons Act 1894
The Prisoners Act 1900
The Transfer of Prisoners Act 1950

As prisons are a state subject, this Act is not binding, but it provides some guidelines to the States for an efficient prison management and criminal justice system.

References

Legal status of minors under Section 30 of Indian Partnership Act, 1932

By

Vanshika Kapoor

-

June 22, 2024

0

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

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

This article is about the legal status and rights of minors under Section 30 of the Indian Partnership Act of 1932. The legal principles, rights, and obligations of minors in partnership arrangements are complex and therefore important in Indian Commercial law. Their roles and responsibilities are defined in this article, which delves into the critical analysis of the legal status of minors mentioned in Section 30 of the Indian Partnership Act of 1932. The purpose of this discussion is to examine the implications, precedents, and social-legal principles of its practice to highlight this complex legal framework and the importance of protecting the welfare of minors while promoting professional relationships. Through a comprehensive analysis of case law, statutory provisions, and scholarly discourse, this study seeks to shed light on the rights and entitlements of minors to pay in partnership under Indian law.

Minor meaning

As per Section 3 of the Indian Majority Act of 1875, any person below the age of 18 is a minor. A minor person has no full-fledged legal rights as compared to a person who attains the age of majority. The minor gets full-fledged legal rights when the minor attains the age of majority, which is 18 years. As per research, it was considered that at the age of 18 years, a person starts gaining control over their action and affairs and becomes responsible for making their decisions.

Contract with minors

According to Section 10 of the Indian Contract Act of 1872, every agreement is a contract if it is made by:

According to Section 11 of the Indian Contract Act, 1872, every person is competent to contract if attain the age of majority, which is 18 years.
Sound mind, and not disqualified from contracting by any law.
Lawful consideration and object.
Expressly declared to be void.

Thus, agreement with the minor is void -ab -initio. It has no value in the eyes of the law. The agreement from the very beginning is null and void and it cannot be enforceable by the parties to the contract.

Mohori Bibee vs. Dharmodas Ghose

Dharmodas Ghose was a minor when he entered into an agreement with Brahmodutt, who is a moneylender, to take a loan of Rs 20,000. During the money transaction, the attorney who acted on behalf of Brahmodutt (the moneylender) knew that Dharmodas Ghose was a minor. Later on, the action was brought by the minor against Brahmodutt’s (moneylender’s) claim that he was a minor when the execution of the mortgage took place, so the mortgage was void and had no value in the eyes of the law so it should be cancelled.

The Privy Council held after considering that the agreement with the minor is void ab initio, i.e., void from the very beginning. The court further held that the doctrine of promissory estoppel would not apply as the defendant’s attorney was already aware that the plaintiff (Dharmodas Ghose) was minor when entering into the contract. Therefore, agreement with the minor is void-ab-initio is a precedent law

Social engineer theory

The law protects the interests of the weaker sector of society and disadvantaged groups (minor, unsound-minded persons), as they were not aware of the terms of the contract or the consequences of the agreement. Thus, it protects the weaker sector of society from being exploited by another strong-thinking person.

Here’s a more detailed explanation of the key points of the social engineer theory:

Conflict resolution

Pound argued that society is inherently comprised of individuals with diverse interests and viewpoints. These differing interests often lead to conflicts and tensions within society. The role of the law, according to Pound, is to mitigate these conflicts and promote social stability.

Social welfare

The ultimate goal of the law, as per the Social Engineer Theory, is to enhance the overall welfare and happiness of society. This involves not only resolving conflicts but also promoting fairness, equity, and justice in social interactions.

Protection of vulnerable groups

Pound emphasised the importance of protecting vulnerable or disadvantaged groups within society, such as minors, and individuals with disabilities. These groups often have limited bargaining power and are exploited by more powerful actors. Therefore, the law should provide special protections to safeguard their rights and interests.

In the context of minors’ legal status within partnerships, the Social Engineer Theory supports the notion that contracts with minors are void to prevent their exploitation by more powerful parties. By invalidating agreements made with minors, the law aims to protect their interests and prevent them from entering into legally binding contracts that they may not fully comprehend or benefit from.

Overall, the social engineer theory offers a comprehensive framework for understanding the role of law in shaping social relationships and promoting the common good. It emphasises the importance of balancing individual rights with the societal interests of vulnerable groups in legal decision-making. So, contracts with minors and unsound persons are void and have no value in the eyes of the law. According to this theory, the function of the law is to bring happiness into society by removing all the conflicting interests in society. In society, different types of people live and every person has different opinions and interests. The law functions to remove conflicting interests and spread happiness.

The nature of partnership

A partnership is a relationship between two people who have agreed to share the profit of a business carried by the partners. Subject to the agreement between the partners, a partnership cannot form through the status mentioned in Section 5 of the Indian Partnership Act. The partnership creates a relationship of trust and mutual agency. That is why it is very important to choose your partner wisely, because the act of one partner suffers the other partner. In other words, the liability of partners is jointly and severally. “One for all, all for one.” The relationship between partners like agents and principals. Every partner is the principal for another partner and every partner is an agent for another partner. This concept is called mutual agency. It means every partner has the right to choose a co-partner. With the consent of all partners, we can add new partners to the firm.

Essentials of partnership

Association of person – Legal person and jurist person
Having a contract with each other, Section 5 of The Indian Partnership Act, 1932
Sharing profit
Carry on business (2(b)) of the Indian Partnership Act, 1932

By all or any of them

Individual Partner- A person who has entered into a partnership with another is called an individual partner, collectively called the firm.

Firm name- The name under which the firm is registered is called the firm name.

Who were not partners under the Indian Partnership Act, 1932

The member of a Hindu undivided family carrying on a family business.
Burmese Buddhist husband and wife carrying on a business.

Section 30 the Indian Partnership Act, 1932

According to Section 30(1) of The Indian Partnership Act, 1932, a minor person, according to the Indian Majority Act of 1875, is not subject to the partner in the firm, but with the consent of all the partners, he may be admitted as the beneficiary of the partnership

The Commissioner of Income-Tax, … vs. M/S. Dwarkadas Khetan & Co. (1960)

The Hon’ble Supreme Court of India held that, a minor is not a partner, even though his name is described in the agreement. Making a minor full pledge partner is invalid.

Commissioner of Income-Tax, … vs. Shah Mohandas Sadhuram (1965)

The Hon’ble” Supreme Court of India held that a partnership deed can confirm the minor benefit of the partnership but it can’t make the minor a full pledge partner.

Section 30(2) of the Indian Partnership Act – lays down the right of a minor who is admitted as a beneficiary of the firm; such a minor can get a share in the property or profit as per the agreement made between the partners. Minors may have access to inspect and copy any of the firm’s accounts. In contrast, a normal partner under Section 12(d) has full access to inspect or copy any book of the firm other than the account. Hence, minors have limited power as compared to normal partners in the firm.

Section 30(3) of the Indian Partnership Act- A minor who is admitted as a benefit of the firm can’t be made personally liable for the act of the firm but a minor share can be subject to the liability of the firm. There is a difference between a full-fledged partner and a minor. A partner is jointly and severally liable for the acting firm to a third party based on mutual agency.

Section 30(4) of the Indian Partnership Act- If the minor wants to sue the partner for an account or payment of his share of the property or profit of the firm, he must first sever his connection with the firm. In other words, the minor has the right to sue only for the account and his share as a beneficiary, not for the dissolution of the firm, and the amount of his share shall be determined by a valuation made as per the following rules contained in Section 48 of the Indian Partnership Act.

Provided that all partners acting together or any partner may file a suit to dissolve the firm, giving notice to another partner, the court shall first proceed with the suit of dissolution of the firm and settle the account between the partners, and the share of the minor shall be determined along with the share of the partners.

Section 30(5) of the Indian Partnership Act- To exercise the benefits of Section 30(5), the minor wants to become a partner of the firm-

The minor must attain the age of majority.
The firm must be in existence.

If the firm has already been dissolved before he attains the age of majority, the benefit of Section 30(5) is not available to the minor.

A minor, attaining the age of majority or obtaining the knowledge that he has been admitted to the benefits of partnership, whichever date is earlier, for that date to six months, may give public notice that he wants to become a partner of that firm or he may not want to become a partner of such firm. If such a person fails to give such notice, he is deemed to be a partner in the firm on the expiry of the said six months.

Illustration:

If A attains the age of majority on January 1, 2023, within six months from this date until July 1, 2023, A may give public notice of whether he wants to become a partner of the firm. If A fails to serve the notice, then A is deemed a partner of the firm.
B does not know that during his minor years, B was admitted to the benefits of the partnership but at the age of 22, B was knowledgeable of this fact. The day B gets this knowledge until six months, B has the same three rights options, either join the firm as a partner or not to join the firm as a partner by giving public notice. If B fails to give notice, then B will be a partner of the firm.

Section 30(6) of The Indian Partnership Act Sometimes, without the knowledge of the minor, his guardian may have accepted his admission as the benefit of the partnership, and the minor may not be aware of the fact related to admission as a benefit of the partnership even after he attains the age of majority. (C.I.T. Mysore vs. Mohan Das). According to Section 30(6), the burden of proving the fact that such a person did not know such an admission until attaining a particular age or after six months of his majority shall be upon the person asserting this fact.

Section 30(7) Minor’s position after he was elected as a partner of the firm.

A minor becomes personally liable for the third party for all the acts of the firm, not for the date of his attaining majority nor the date of becoming a partner but retrospectively for the date of the admission of a minor as a benefit in the partnership firm. Thus, becoming a partner by the minor is automatically ratified by the minor for all the acts and liabilities of the firm since his admission as a beneficiary. The share in the property and profit of the firm is the same as what he provides during his minority as a beneficiary.

Section 30(8) Minor’s position if not elected to become a partner:

If a minor chooses not to become a partner, their rights and liabilities remain unchanged until the date of public notice.
His share shall not be liable for any acts of the firm done after the date of the notice, and
A minor shall be entitled to sue the partner for his share of the property and profit, according to Section 30(4) of the Indian Partnership Act.

According to Section 30(9) of the Indian Partnership Act, after attaining the majority he falsely represented or knew permitted himself as a partner of the firm, he is a minor liability on the ground of holding up as per Section 28 of the Indian Partnership Act, 1932.

Landmark judgements on minors under Indian Partnership Act

The Indian Partnership Act, 1932, governs the formation, operation, and dissolution of partnerships in India. Several landmark judgements have significantly impacted the interpretation and application of the Act, particularly regarding the rights and liabilities of minors in partnerships. Here are some notable landmark judgements related to minors under the Indian Partnership Act:

Kishan Chand vs. Ram Narain

Facts:

The plaintiff, Kishan Chand, was a minor who was admitted as a partner in the defendant’s partnership firm, Ram Narain and Sons, with the consent of all the existing partners.
The partnership agreement provided that Kishan Chand would share in the profits of the firm but would not be liable for any losses.
Kishan Chand did not take any active role in the management of the firm.
The firm incurred losses during the time that Kishan Chand was a partner.
Kishan Chand filed a suit against the other partners, seeking to recover his share of the profits and avoid liability for the losses.

Issues:

Can a minor be admitted as a partner in a partnership firm?
Is a minor partner entitled to share in the profits of the firm?
Is a minor partner liable for the losses of the firm?
Can a minor partner bind the firm through his/her actions or contracts?

Held:

The court held that a minor can be admitted as a partner in a partnership firm with the consent of all the existing partners.
The court held that a minor partner is entitled to share in the profits of the firm but is not liable for the losses of the firm.
The court held that a minor partner cannot bind the firm through his/her actions or contracts.

Significance:

The case of Kishan Chand vs. Ram Narain is a landmark case in Indian partnership law. It established the following principles:

Minors can be admitted as partners in partnership firms with the consent of all the existing partners.
Minor partners are entitled to share in the profits of the firm but are not liable for the losses of the firm.
Minor partners cannot bind the firm through their actions or contracts.

These principles have been followed by courts in India and other common law jurisdictions. They have also been codified in the Indian Partnership Act, 1932.

Additional notes:

The decision in Kishan Chand v. Ram Narain is based on the common law principle of the “voidable contract.” A voidable contract is a contract that is valid and enforceable unless one of the parties chooses to avoid it. Minors have the capacity to enter into voidable contracts, but they can avoid them if they choose to do so.
The rule that minors are not liable for the losses of a partnership firm is based on the principle that minors are not legally responsible for their debts. This principle is also reflected in other areas of the law, such as tort law and contract law.
The rule that minor partners cannot bind the firm through their actions or contracts is based on the principle that minors are not legally competent to enter into binding contracts. This principle is also reflected in other areas of the law, such as property law and family law.

T. R. Kalyanasundaram Chettiar vs. Karuppa Gounder

Key points:

Reiterated the principle that a minor cannot be held personally liable for the debts and obligations of a partnership that they may be a part of.
Affirmed that the share of a minor partner in the partnership property is not subject to attachment or execution by the firm’s creditors.

Case explanation

The case of T. R. Kalyanasundaram Chettiar v. Karuppa Gounder (1964) involved a minor partner in a partnership firm who had not attained the age of majority at the time of entering into the partnership agreement. The issue arose when the partnership faced financial difficulties and creditors sought to recover their dues by attaching the minor partner’s share in the partnership property.
The court, while examining the legal status of a minor partner, reiterated the long-standing principle that a minor is not legally competent to enter into binding contracts or incur personal liability for the obligations of a partnership. The court emphasised that a minor’s lack of contractual capacity extends to partnership agreements as well. Therefore, the minor partner could not be held personally liable for the debts and obligations of the partnership.
Furthermore, the court affirmed that the share of a minor partner in the partnership property is not liable for attachment or execution by the firm’s creditors. The court reasoned that since a minor partner lacks the capacity to enter into legally binding contracts, their share in the partnership property cannot be treated as an asset that can be seized to satisfy the debts of the firm.
The decision in T. R. Kalyanasundaram Chettiar vs. Karuppa Gounder (1964) is significant as it provides legal protection to minors who may inadvertently enter into partnership agreements without fully understanding the implications of their actions. It ensures that minors are not held personally liable for the debts and obligations of the partnership and that their share of the partnership property is safeguarded from creditors’ claims.

Rameshwar Prasad vs. State of Bihar

In the landmark case of Rameshwar Prasad vs. State of Bihar, the Supreme Court of India ruled that a minor partner can be held liable for the torts (civil wrongs) committed by the partnership. This decision represented a significant departure from the traditional common law principle that minors are generally not liable for their actions.

The court recognised that, while minors are generally not held to the same level of accountability as adults, they may still be held liable for their own negligent or wrongful acts. In the case of a minor partner, the court reasoned that the minor partner’s involvement in the partnership business created a duty of care to third parties and that the minor partner could be held liable for any damages caused by his or her own negligent or wrongful acts.

The court’s decision in Rameshwar Prasad vs. State of Bihar has had a significant impact on the law of torts in India. It has made it clear that minors can be held liable for their own negligent or wrongful acts, even if they are not held to the same level of accountability as adults. This decision has also helped to protect third parties from the potential harm caused by the actions of minor partners.

In addition to its legal significance, the decision in Rameshwar Prasad v. State of Bihar also has important social implications. It sends a message that minors are not immune from the consequences of their actions and that they can be held accountable for their own negligence or wrongdoing. This decision may also help to deter minors from engaging in risky or harmful behaviour.

Overall, the decision in Rameshwar Prasad v. State of Bihar is a landmark decision that has had a significant impact on the law of torts in India. It has made it clear that minors can be held liable for their own negligent or wrongful acts, and it has also helped to protect third parties from the potential harm caused by the actions of minor partners.

S. P. Chengalvaraya Naidu vs. Jagannatha Rao

In the landmark case of S. P. Chengalvaraya Naidu vs. Jagannatha Rao, the Indian courts addressed the issue of the rights and responsibilities of minor partners in a partnership firm. The court’s decision established several important principles that continue to govern the role of minor partners in partnerships in India.

1. Voting rights and management participation:

The court held that a minor partner, being a person below the age of majority (18 years in India), is not entitled to vote in partnership meetings or participate in the management and control of the firm.
This restriction is based on the rationale that minors lack the legal capacity and maturity to make informed decisions regarding the partnership’s affairs.

2. Sharing in profits and interest on capital:

The court emphasised that a minor partner’s role in a partnership is primarily limited to sharing in the profits and receiving interest on the capital contributed.
This means that a minor partner is entitled to a portion of the partnership’s profits based on their capital contribution, but they do not have the same level of decision-making authority as adult partners.

3. Representation by guardian:

The court recognised that minors may require representation in partnership matters.
If a minor partner is unable to act on their own behalf, they may appoint a guardian or legal representative to exercise their rights and fulfil their obligations as a partner.

4. Liability for partnership debts:

The court clarified that minor partners are not personally liable for partnership debts beyond the extent of their capital contribution.
This protection arises from the principle that minors are not bound by contracts entered into during their minority.

5. Implications for partnership agreements:

The court’s decision underscores the importance of carefully drafting partnership agreements to address the rights and responsibilities of minor partners.
Partnership agreements should clearly specify the extent of a minor partner’s involvement in the firm’s operations and decision-making processes.

Overall, the case of S. P. Chengalvaraya Naidu v. Jagannatha Rao established a clear framework for the role of minor partners in partnerships in India, ensuring the protection of their interests while recognising the limitations imposed by their legal status as minors.

Conclusion

It can be concluded that during the age of minority, the minor can become the beneficiary of the partnership with the consent of the partners, but the minor share is liable for the acts of the firm and he can’t be personally liable for the acts of the firm. With the consent of all partners or those subject to contract, minors, after attaining the age of majority, may be elected as partners of the firm. It’s all prerogative of the minor whether he wants to become a partner of the firm or not by giving public notice.

References

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