This article is written by Shreya Patel. This article emphasises the meaning and objectives of guardianship and custody, along with the key differences between them. This article further discusses the landmark cases on guardianship and custody. This article also throws light on the difference between guardianship and custody laws in India and other western countries like the United States of America and the United Kingdom.

Introduction

The concepts of custody and guardianship have played a key role in the personal laws of India for decades. Both guardianship and custody are not new concepts for India. Guardianship and custody both play a vital role in the child’s development. India, as a country, is home to many different religions. All religions follow their own personal laws for guardianship and custody. The welfare of the child is the core element of the guardianship and custody provisions, whether they are under Islamic laws, Hindu laws, Parsi laws or Christian laws.

Guardianship and custody do not both have the same meaning. They are often used by people as synonyms, but they are completely different in nature. The main goal of both guardianship and custody is the protection of children, but they cannot be used interchangeably. The personal laws in India provide provisions for guardianship and custody. But in the famous case of Rafiq vs. Smt. Bashiran (1962), the Court held that the Guardian and Wards Act, 1890 will always overrule personal laws when any conflict arises between the two acts.

The legal framework for guardianship and custody deals with different rights and obligations that parents and other guardians have in regard to the welfare and protection of children. As compared to guardianship, custody is a much narrower concept. 

Objectives of guardianship and custody

The laws related to guardianship and custody are introduced and designed to ensure the protection and welfare of the children. Hence, the key objective of guardianship and custody is the protection of the child and ensuring his/her wellness. In the case of Surya Vadanan vs. State of Tamil Nadu (2015), the Supreme Court of India held that the welfare of the child and the best interest is of prime importance. The next objective of guardianship and custody is to ensure that the child gets the best nurturing possible. 

Guardianship and custody also help in determining who will have the key authority to make decisions on behalf of the child, ensuring the best interest of the child. Guardianship and custody also play a major role in providing the child with stability in life by granting guardianship or custody to a party that will protect the welfare of the children. 

Guardianship and custody help in deciding who is responsible for the child’s welfare and who will have the legal authority to make the decisions on behalf of the child. By deciding on matters related to custody and guardianship, clear decisions can be made regarding the safety, protection, development, growth, stability and other important aspects of the child. 

Difference between guardianship and custody

Meaning of guardianship and custody

Guardianship

In layman’s terms, when an individual is designated by an authority to take care of a minor, or his property or both is known as guardianship. The guardian manages the activities related to the property and the minor. The legal right is given to the adult to make decisions on behalf of the minor for his/her well-being. A person who takes care of the minor’s property, the minor or both is known as a guardian. Section 4(b) of the Hindu Minority and Guardianship Act, 1956, defines a guardian as a person who takes care of the minor, his property or both the minor and the property. A minor is defined as a child who is below eighteen years of age, as per Section 4(a). 

The definition of guardian includes

• Testamentary guardian– A guardian who is appointed as per the will of the minor’s parents. In case anyone or both parents die, then the guardian is appointed as per the will of the parents, if present.
• A natural guardian–  A guardian who is a blood relative or by virtue is responsible for taking care of the minor. Most of the time, the natural guardians are the mother and father of the child.
• Court appointed guardian- A guardian who is declared or appointed by the court, as the name itself suggests. As per Section 7 of the Guardians and Wards Act, 1890, the court has the power to appoint a guardian. There can be more than one guardian if the minor has more than one property. The court appoints a guardian only in cases where there is no testamentary or natural guardian present.

The main objective of the Hindu Minority and Guardianship Act, 1956, is to ensure the welfare and best interests of children below the age of 18 years. 

Custody 

Custody, in simple words, means a duty or right to look after children when the parents are no longer together, i.e., they have separated or divorced. Custody is a legal right given to both parents or an individual parent in relation to the rights of raising the child. The word custody is not defined in any Indian law. Both parents have equal rights to custody. The custody can be joint, where both the mother and father raise the child and ensure their welfare together, or it can be given to a single parent if any one party is deemed unfit for raising the child. 

Nature of guardianship and custody

Guardianship

The nature of guardianship is fully legal. The guardian has to manage the property of the minor, minor or both and ensure the protection and welfare of the minor. The nature of guardianship can be different; for example, the guardian can be appointed by the court, natural or testamentary.

Custody 

Custody is temporary in nature, it can change as per the needs of the minor. The custody can last until the child reaches the age of 18 years. It can be sole custody or jointly with the other parent as well.

Scope 

Guardianship

In guardianship, the scope of responsibilities is much broader. The guardian of the child has to make many crucial decisions for the minor, keeping their best interests in mind. All the hugely important decisions related to education, other legal aspects, financial decisions, and health-related decisions are to be taken by the guardian until the child reaches the age of majority. 

Custody 

In custody, as the physical aspect of the child is also included, i.e., the individual who has custody, the child will live with them. So the child’s daily needs and requirements and decisions related to those are to be taken. The basic necessities, like clothes, food and education-related needs, are included in the scope of custody. 

Duration of guardianship and custody

Guardianship

The duration of guardianship ends when the child attains the age of majority if the guardianship is granted solely for the minor. If the guardianship is granted for property, then the guardianship will end after the fulfilment of the rights and duties that are entitled to the guardian in relation to the property. If the property for which the guardianship is provided gets consumed, then it will also result in the end of the guardianship.

Custody 

As per Hindu laws, the custody of the child remains until they attain the age of 18 years. Under Muslim laws, the mother has custody of the child till the age of seven years, if the child is a male. In the case of a female child, until the girl attains majority age or puberty, custody will remain with the mother. Muslim law only counts the father as the natural guardian. Both Christian and Parsi laws grant custody to the parent who can look after the child more pleasantly and the child’s welfare can be guaranteed. 

Legal framework

Guardianship

The key acts that govern guardianship under Indian family law are:

• The Guardians and Wards Act, 1890
• Hindu Minority and Guardianship Act, 1956

Both the legal statutes state all the important regulations in relation to guardianship. The Guardians and Wards Act, 1890, includes provisions related to the appointment of guardians, the declaration of guardians, all the duties, rights and liabilities that the guardian will possess in relation to the ward and his/her property and the circumstances in which the guardianship will be terminated. The Hindu Minority and Guardianship Act, 1956, is a type of upgrade to the Guardians and Wards Act, 1890, a more modified version of the previous statute. The act defines guardianship between minors and adults. 

Custody 

The two major statutes that govern aspects related to custody in India are:

• The Hindu Marriage Act, 1955  
• Hindu Minority and Guardianship Act, 1956
• Special Marriage Act, 1954

When child custody is to be sought, the rules and regulations that are set for the same are mentioned in the Hindu Marriage Act, 1955. Section 26 of the Hindu Marriage Act, 1955 and Section 38 of the Special Marriage Act, 1954, talk about the custody of children. While the Hindu Minority and Guardianship Act, 1956, includes a set of rules for when the child is Hindu, it also allows the parents of the child to seek custody. Only the parents are permitted to seek custody of the minor child under this Act. The rules and regulations of child custody differ from religion to religion. There are many personal laws that govern matters related to custody as per their religions. 

Parental rights in guardianship and custody

Guardianship

In guardianship, it is not compulsory to give the guardianship of the child to the biological parent. Any individual deemed fit by the court and who will consider the interest and welfare of the child is given guardianship. The guardianship can be given to any other family friend, relative or close acquaintance. The parents are the natural guardians. As discussed earlier, the guardian can also be appointed by the court.

Custody 

The custody of the child who is under the age of eighteen is given to any one of the parents. Only the minor’s biological parents are given custody. The custody can be given solely to one parent, whether a mother or father or it can be given jointly to both parents. The child has to live with the parent who has custody. In cases of joint custody, the number of days each parent will have custody is usually decided beforehand.

Rights and duties

Guardianship

The rights of a guardian include taking the decision and giving consent on behalf of the minor. The guardian also has the right to make decisions in relation to the minor’s property. The duties of a guardian include taking decisions in the best interest of the child, providing the child with proper necessities, taking decisions related to education which are favourable for the child, making decisions related to the finances of the child, etc. The key duty of the guardian is to not misuse the powers given to them. It is also the duty of the guardian to look after the health of the minor and make decisions according to it.

Custody

The rights and duties of the individual to whom the custody of the children is given depend on the type of custody. The custody can be a legal, physical, sole, joint, or third party. In cases of legal custody, the parent having legal custody will have the right to take all the decisions for the child/children. In most cases, both parents hold the legal custody of the children, so they both have the right to make decisions in relation to any medical treatments, anything related to education, etc. But there might be some cases where only one parent has legal custody.

In the case of joint custody, both the parents have equal rights and duties. If the decision is for the welfare of the child, the parents have the right to make the same decision. Custody mainly focuses on the day to day needs of the children in cases of physical custody. So the right to take decisions is with the parent that has physical custody in major aspects; there can be some exceptions as well, where the court has explicitly given some rights to any one party. 

Decision-making authority in guardianship and custody

Guardianship

In guardianship, the guardian has the decision-making authority. This is a legal authority given to the guardian to take decisions on behalf of the minor. In many cases, the court appoints the guardians themselves to make informed and educated decisions with the consent of the minor, his property or both.

Custody 

In cases of custody, the decision-making authority is provided to the party who has custody of the minor. It can be a single parent or both. When there is joint custody, both parents have equal authority when it comes to decision-making. In the case of sole custody, the parent who has custodial rights will have all the decision-making authority. 

Termination of  guardianship and custody

Guardianship

The guardianship can be terminated in the following circumstances:-

• When the majority age is attained by the minor.
• The guardianship is renounced by the guardian.
• The guardianship is terminated by the court.
• When the guardianship is only related to the property of the minor and that particular property comes to an end.
• The death of the guardian takes place.

In Section 39 of Guardians and Wards Act, 1890, the guardian can be removed if it is found that he/she is abusing their power, is failing in fulfilling their duties towards the minor, neglecting or giving ill-treatment to the ward, has committed an offence, has an ulterior motive behind gaining guardianship, etc., then the guardian will be removed by the court.

Custody 

The custody can be terminated if the court finds that both the mother and father or any one of the parties, cannot take care of the minor. The custody can also be terminated if the parents are found to be violating the laws and not considering the minor’s best interests. There can be some cases where the parent/parents have voluntarily terminated their custody. The termination can also be involuntary in nature.

Landmark case laws surrounding guardianship and custody

Guardianship

In the case of Imambandi vs. Mutsaddi (1918), the Bombay High Court held that the father would be considered the sole guardian when he was alive. The father will be the supreme guardian of the children below the age of 18 years. Under Muslim law, the mother is not regarded as the natural guardian; only the father of the minors is held to be the natural guardian. Even if the death of the father takes place, the mother won’t be considered as a natural guardian as per the Muslim law in India. 

If the custody of the minor is not given to the father of the child, then in that circumstance, the father will also be considered the natural guardian of the minor. The father being the natural guardian will have control and influence in all the decisions related to the minor. Only the legitimate children will have the father’s guardianship. The father is not entitled to any guardianship rights if the child/children are illegitimate. The custody of the child can be given to the mother, but the guardianship will remain with the father only.

The two most vital cases on guardianship of the mother are the case of Githa Hariharan & Another vs. Reserve Bank of India & Another (1999) and the case of Dr. Vandana Shiva vs. Mr. Jayanta Bandhopadhyaya, 1999 AIR (SC) 1149. It was held by the Supreme Court of India that the minor’s mother will also be the guardian of the father. Both the mother and father of the Hindu child are considered the natural guardians of the minor. 

Before 1999, the mother was considered the guardian of the minor children only when the father’s death had taken place, because the provision included the word ‘after him’ (Section 6(a) of the Hindu Minority and Guardianship Act, 1956). These two judgements helped in changing the old scenario and gave the mother the right to guardian even when the father of the minor is alive. If the father is absent from the child’s life or the couple has been separated for many years and the father is not taking any active part in the child’s life, then the mother can be considered the natural guardian of the minor.

July 6^th, 2015, marks a historic day for mothers who are not in a marriage to be legally recognised as the child’s guardian. In the landmark judgement of ABC vs. The State (NCT of Delhi), which arose after a petition was filed, the Supreme Court of India ruled that the mother who is unwed will be a legally recognised guardian of the minor child. This case proved to be a pioneering judgement on gender equality in India. The mother will also not be forced in any way to reveal the child’s biological name or other details. 

In the case of Jijabhai vs. Pathankhan (1971), for over twenty years, both parents were living separately. The child was being taken care of solely by the mother, and she was the one who managed everything related to the child. The court, in this case, believed that even with the father being alive, he had not taken any part or interest in the child’s life or his/her well being, so as a natural guardian of the child, the mother is the rightful guardian. The father was not at all present, so his existence can be considered null. Hence, the court held that the mother was the natural guardian for both the minor and his/her related property. 

Custody 

In the case of Dhanwanti Joshi vs. Madhav Unde (1997), it was held by the Delhi High Court, at the time of custody, many different aspects were taken into consideration. The financial aspect is one of them, but the parent’s financial status alone cannot be taken into consideration for custody. Other criteria, such as child’s requirement, sex, age, etc are also crucial to be considered. Different circumstances and factors are contemplated at the time of custody decisions.

The growth of the minor is a vital facet that is often considered in custody cases. The same was seen in the case of K. M. Vinaya vs. B. Srinivas (2013), the Karnataka High Court held that for the development and growth of the child, custody is granted to both parents. The minor should not be fully detached from their families when it comes to custody related decisions; only the father is considered the guardian of the minor. The rights of both the parents and the welfare of the child is crucial. In order to maintain the rights of the natural guardian, who is the father, the child should not be ripped out of their familiar surroundings, as held in the case of Vegesina Venkata Narasiah vs. Chintalpati (1971).

The Supreme Court of India held in the case of Mausami Ganguli vs. Jayant Ganguli (2008), held that the welfare and best interest of the child are to be considered supreme and will supersede statutes and provisions mentioned for custody if they are proven to be hindering the well being and welfare of the minor in the custody cases.  The same notion is followed by all the high courts and the Supreme Court for all disputes related to custody.

The Andhra Pradesh High Court, in the case of Md. Jameel Ahmed Ansari vs. Ishrath Sajeeda (1982), granted the custody of a boy who was eleven years old to the Muslim father. Only until the age of seven years can the mother have exclusive custody of the male child, as per Muslim law. If there are no grounds that can prove that the father is unfit for the boy’s custody, then after seven years, custody will be awarded to the father of the minor. 

The custody of the minor can be temporary in nature. The custody of the minor can be changed as per the circumstances. In the case of Rosy Jacob vs. Jacob A. Chakramakkals (1973), it was held by the Supreme Court that all the orders granted in relation to custody can be considered temporary in nature. When there is a change in circumstances and other conditions, the custody order can be changed wholly or modified as per the need. As time passes, the court is qualified to make some variations as the need arises, taking into account the welfare and interests of the ward at that time. Even if the ward’s consent was included in the custody order, it is liable to vary again if, at a later stage, the ward’s well-being, protections and interests demand the same.

Table of differences between guardianship and custody

Sr No.	Basis of Difference	Guardianship	Custody
1	Meaning	When an individual is assigned to look after a minor’s property, or just the minor or both and can take the decision on behalf of the minor, this is called guardianship.	The rights given to the parent/parents to raise the child. The right to legally look after and keep the child physically with them is known as custody.
2	Scope	Guardianship has a broader scope.	Custody, when compared with guardianship, has a slightly narrower scope as it deals with more daily life related decisions.
3	Nature	The nature of the guardianship includes the responsibility of managing the minor, his property or both. The right of guardianship is a legal right provided to the guardian. The nature of guardianship can be limited to some aspects only.	The custody can be changed as per the needs and demands of the welfare of the child; hence, the custody can be temporary in nature. Custody is not limited in nature. The parent who has custody will have the right to make all decisions for the welfare of the child.
4	Duration	Guardianship automatically terminates when the child reaches the age of 18 or when the specific responsibility assigned to the guardian gets consumed (it can be related to a minor or his property).	Custody also ends with the attainment of the majority age. But the duration can also be changed if the custody is given to some other party before the minor reaches the age of 18 years.
5	Legal Framework	The main legislations that oversee the vital aspects of guardianship are The Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956. These acts lay out all the provisions required to be followed and considered when it comes to guardianship of children below the age of 18 years.	The important acts that provide a framework for custody related aspects are The Hindu Marriage Act, 1955; the Hindu Minority and Guardianship Act, 1956; and the Special Marriage Act, 1954.
6.	Decision-Making Authority	The guardian only has decision-making authority in relation to which guardianship is provided. If the guardianship is provided only for the minor’s property, then the guardian cannot take any decisions in relation to the minor’s education, health, etc.	In custody, the decision-making authority is with the party that has custody of the child. In joint custody, the decision-making authority is equally shared between both parents. All the decisions regarding the child’s property, education, health and other important factors are to be taken by the individual who has custody.
7.	Rights and Duties	Under guardianship, the guardian has the right to take educated and informed decisions with the consent of the minor in relation to the minor, his property or both. The guardian can make decisions which are optimal and for the betterment of the child. It is the guardian’s duty to ensure the welfare and best interests of the child.	The rights and duties vary as per the type of custody the parents have. The common rights of the parent with custody include deciding on the type of school for the child, medical plans, extracurricular activities, residence, etc and the duties include taking all these decisions while keeping the consent, best interests, safety and well being of the child in mind.
8.	Parental Rights	In guardianship, parental rights are not ceased. The guardian is given guardianship of the child until they are 18 years old. Having a guardian does not entail that the child has no parents. Parents and guardians can have rights over the child in different aspects. The guardianship can be over the minor’s property solely. In this case, the welfare and upbringing of the child will remain with the parents. Rights similar to parental rights can be given to a guardian if the parents seem to be unfit in the eyes of the law.	In custody, parental rights can be exclusively given to one or both parents jointly. The parent who has custody of the child will be in charge of all the decisions that will be taken. Only the biological parents have parental rights in case of custody.
9.	Termination	The guardianship can be terminated whenever the guardian is not taking into consideration the best interests of the child. The court can terminate the guardian if they violate any laws.	When the party who has custody of the child proves to be unfit and neglects the welfare of the child, the court can terminate custody in such circumstances. There can also be a voluntary termination of the custody.

Difference between guardianship and custody : India and other western countries

In all countries, family laws play a significant role. One of the most significant aspects of family law is the guardianship and custody of children under eighteen years of age. These laws relating to custody and guardianship include the rights and obligations that the parents as well as the guardians have to fulfil for the better upbringing of the children. There are many differences in guardianship and custody laws between India and other western countries. All countries have their own cultures, social structures and legal statutes, which result in having different rules and regulations even when the subject is the same. The laws in India relating to guardianship and custody have the influence of both personal laws and civil laws.

India, as a country, is very diverse when it comes to religion. The rules and regulations relating to guardianship and custody differ as per personal laws. For instance, if the child is Hindu, there are different sets of regulations when it comes to custody and guardianship; the same goes for Muslims, Christians, etc. 

The Hindu Minority and Guardianship Act was introduced to govern guardianship related issues for Hindus. The act divided guardianship into three types, i.e., a natural guardian, a guardian appointed by the court, and a testamentary guardian. On the other hand, there are three types of guardianship recognised by Muslim laws, which are guardianship of property, guardianship of a minor and guardianship in marriage. The guardianship of property is further divided into three subtypes which are de facto (assuming the guardianship voluntarily), de jure (a natural or legal guardian) and certified (court ordered). The Guardians and Wards Act, 1890, governs the guardianship of Parsi and Christians.

In western countries, they do not have different custody and guardianship laws as per their religions, as seen in India. Most western countries have one or two-three major statutes that deal with the provisions of custody and guardianship. The laws are common for all minors in relation to their custody and guardianship. The United Kingdom has the Family Law Act, 1996 (scrapped in 2001) and the Children’s Act, 1989. Section 1 of the Children’s Act, 1989 talks about the welfare of children. Similar to India, the U.K. also has two types of custody, i.e., sole and joint custody. 

Most of the countries in the West also follow the same approach as India when it comes to joint custody. The United States of America and Canada follow two types of custody which are joint physical custody (the physical custody is shared by both parents, i.e., the child will live with both parents in turn) and joint legal custody (both parents share the decision making authority equally). India has been following the trend of joint custody for a few years, as it proved to be more stable and beneficial for the minors as they can have contact with both the parents. Most of the time, parents have to share the responsibilities equally among themselves. All the western countries also follow the path of keeping the minor’s best interests a priority when determining guardianship or custody. All aspects, including emotional and physical well being are taken care of. 

One of the major differences that can be seen in the approach towards the guardianship and custody matter between India and other western countries is that India gives more significance to the involvement of the family, whereas western countries emphasise the rights of the individual. The factors that are considered in determining custody and guardianship differ a little. In most western countries, the mother is considered the natural guardian of the minor. In India, the father is considered the natural guardian under some personal laws.

Conclusion 

Custody and guardianship, despite having almost similar roles, are very distinct in nature.  Both concepts play very different roles in the welfare of the child. Guardianship comprises the responsibilities in more extensive ways, while custody focuses on the day to day requirements and well being of the child. In India, we can see the interweaving of both personal and civil laws in relation to custody and guardianship, while on the other hand, western countries have more of a uniform framework for the same approach. The judgements that are discussed in this article emphasise the protection of the interests and well being of the child over the rigid statutes in place. With these laws, we can protect minors in the country more comprehensively. 

Frequently Asked Questions (FAQs)

What are the key factors that are considered by the courts when granting custody?

The key factors that are considered at the time of granting custody of the child are the wishes of the child, the child’s welfare, a stable environment, the age of the child and various other factors as per the case. 

How is child custody decided by the Indian Court?

When the court is determining the custody of the child, there are various factors that are taken into consideration related to emotional, financial and well being aspects. The child’s preference is also taken into consideration if the child is over the age of five.

What are the grounds for a father to get custody of a child?

The paramount rule of child custody is to ensure the welfare and best interests of the child. If the court thinks that the father can provide the best interest of the child in all aspects, then the father is granted custody of the child. The preference of the child is also taken when the child is above the age of five and below the age of eighteen. 

What do you mean by joint custody?

When both parents share the custody of the child together, it is known as joint custody. In this type of custody, a single parent does not have custody of the child.

Are grandparents allowed to claim guardianship of children in India?

In India, grandparents can claim guardianship of minor children as per Section 8 in The Guardians and Wards Act, 1890.

Can the court terminate a guardianship?

The court can terminate the guardianship, if the appointment of guardianship is against the welfare of the child and is not in the child’s best interest, as per Section 13 of the Hindu Minority and Guardianship Act, 1956.

What is a de facto guardian?

In simple words, a guardian that is self appointed is known as a de facto guardian. This individual becomes the guardian of the minor by reason of fact. The guardian is assumed voluntary in this case.

Can custody be given to any other party other than the parents?

It was stated in the case of Kirtikumar Maheshankar Joshi vs. Pradipkumar Karunashanker Joshi (1992) that the custody of the minor can be given to a third party.

Who is considered as the natural guardian as per the Muslim laws in India?

The father is considered as the natural guardian in India as per the Muslim laws.

Who can be a natural guardian as per Section 6 of the Hindu Minority and Guardianship Act?

Section 6 states that a natural guardian of a Hindu minor is the father of the child, after that the mother. In case the child is not above the age of five years then custody will be with the mother.

Does the Hindu Minority and Guardianship Act consist of any Section for illegitimate children and their custody?

The custody of the illegitimate unmarried girl and boy will be given to the mother first then the father as per Section 6 of the Act.

Who can be a guardian in India?

An individual who can take care of a minor and is also considered suitable in all vital aspects by the court can be a guardian.

Is it mandatory for a guardian to be a blood relative?

It is not mandatory for a guardian to be a blood relative. A guardian can be any third party who is eligible to look after and make educated decisions on the behalf of the minor in their best interest.

What is the difference between adoption and guardianship?

Adoption and guardianship are terms that often cause confusion in the minds of people. Guardianship is temporary in nature; which means the guardianship of a minor is assigned until he/she reaches the age of majority or certain other specific criteria are fulfilled, while adoption is permanent in nature. When a child is adopted, he/she becomes a permanent member of the family and in the case of a minor, the adopted parents have all the same rights as the natural guardian.

In adoption, all the rights of the biological parents are substituted by the adopting parents. In guardianship, the authority to look after the minor is given to the guardian in some aspects or for some time period, but the rights of the biological parents do not cease. People often get confused between guardianship and adoption and think both are the same, as the adopting parents and guardians (in some cases) are not blood relatives. In cases of guardianship, many  times the parents of the minor are required to provide some kind of child support as well. But when a child is adopted, all the obligations of the biological parents end. 

Can guardianship be revoked?

The court can revoke the guardianship if the guardian is found to be unfit for looking after the child.

Can custody of the child be provided to the surrogate mother in case of the death of the biological parents?

In India, the child that is born via surrogacy is considered the natural child of the intending couple, and they will have all the rights and duties similar to other parents (natural guardians).

Who can claim custody of the minor if both parents have died?

In case of death of both the parents the paternal or maternal grandparents can claim the custody of the minor, or any other blood relative who is close to the minor can claim the custody. Custody is provided only if the court approves of it after thoroughly investigating and ensuring that the custody of the child will lead to their protection and well being.

References

• The Special Marriage Act, 1954 (indiankanoon.org)
• https://www.researchgate.net/publication/373291369_Custody_of_a_Child_-Its_Legal_Aspects
• https://ssrn.com/abstract=2713782
• Custody Of Minor Under Indian Law (legalserviceindia.com)
• 032_Guardianship and custody of the Person of a Minor Child Conflicting Claims (299-311).pdf
• Financial status of a spouse is not the sole determining factor to consider the child’s custody: Delhi HC reiterates| SCC Blog (scconline.com)
• Microsoft Word – Law Journal Vol. 11 part-ii with cover for pdf 17-03-21 (nbu.ac.in) 
• 6-3-87-976.pdf (lawjournals.org)
• SC redefined Hindu Guardianship Law (indianbarassociation.org)
• https://www.iosrjournals.org/iosr-jhss/papers/Vol20-issue7/Version-6/G020763958.pdf

This article has been written by Soumyadutta Shyam. This article discusses in detail the facts of the case, issues raised in the case, arguments of the parties, laws involved in the case, relevant judgements referred to in the case, judgement of the case and analysis of the case.

Introduction 

The legislature has a major role in a democracy. The legislature enacts laws, manages the nation’s finances; other than that it is the legislature where issues of national importance are discussed and debated. The legislature is even more significant in a parliamentary form of government, as the party with the majority forms the government.

In view of the central role played by the Parliament, the members of the Parliament as well as the Parliament itself has been bestowed with certain privileges so that it can discharge its functions effectively without any interference.

In Keshav Singh v. Speaker, Legislative Assembly & ors (1965), the Apex Court examined the extent and scope of Article 194 and its relation to Articles 143 and 226 of the Indian Constitution. This is an important judgement, as it discusses in detail the “privileges of the legislature” conferred by the Constitution on the legislature and its interplay with other provisions of the Constitution.

Details of the case

Case No.- Special Reference No. 1 of 1964

Date of Judgement- 30.09.1964

Bench- Chief Justice P.B Gajendragadkar, Justice A.K Sarkar, Justice K. Subbarao, Justice K.N Wanchoo, Justice M. Hidayatullah, Justice J.C Shah and Justice N. Rajagopala Ayyangar (Seven Judges Bench)

Citation- AIR 1965 SC 745; 1965 SCR (1) 413

Laws involved- Article 143, Article 194, Article 211 and Article 226 of the Constitution.

Facts of Keshav Singh vs. Speaker, Legislative Assembly and Ors., (1965)

A person named Keshav Singh, hailing from Gorakhpur who was affiliated with the Socialist Party distributed a pamphlet against Congress MLA, Narsingh Narain Pandey. The pamphlet contained allegations of corruption against Narsingh Narain. On 14th March, 1964, the Speaker of the Legislative Assembly of Uttar Pradesh issued orders of reprimand against Keshav Singh for contempt of the House as well as for the breach of privileges of Narsingh Narain Pandey.

Subsequently, the Assembly made the decision and the Speaker instructed that Keshav Singh should be sentenced to prison. The reason for this decision was, he was deemed liable of contempt of the House for the second time when he was called to receive the reprimand, for his insubordinate behaviour as well as addressing a contemptuous letter to the Speaker of the Assembly. A warrant was issued ordering that Keshav Singh should be imprisoned in District Jail, Lucknow for a term of seven days. Thus, he was subsequently detained in furtherance of the order.

On 19th March, 1964, Advocate B. Solomon submitted a petition to the High Court for Keshav Singh under Article 226. In the petition, the Speaker of the Legislative Assembly, the Chief Minister of Uttar Pradesh and the Superintendent of the District Jail, Lucknow were named as respondents. The petitioner asserted that the imprisonment was illegal. The High Court instructed that the applicant should be set free on bail. The Court also instructed that the applicant should attend all hearings of the matter. Therefore, the petition was allowed and notice was directed to be served to the respondents.

However, rather than obeying the order of the High Court, the House decided to initiate measures against the two Judges who made the order in Keshav Singh’s matter, Keshav Singh and his advocate on 21st March, 1964. The House passed a resolution stating that the above mentioned persons had committed contempt of the House. Afterwards, separate petitions were filed before the Allahabad High Court under Article 226. It was claimed that the resolution was blatantly unconstitutional and infringed upon the provisions of Article 211. It was asserted in the petitions that the application presented by Keshav Singh was valid, and the Judges passed the order releasing Keshav Singh under power vested upon them by  Article 226. A full Judge Bench of the High Court also made interim orders restricting the Speaker of the Legislative Assembly and also the rest of the respondents from imposing the order of the Legislative Assembly. 

In view of the developments in this matter, the President chose to exercise his power as per Article 143(1) and refer this matter to the Apex Court. After considering the facts of this dispute between the legislature and the Judiciary, the President framed five questions for the opinion of the Supreme Court. The facts and circumstances showed that there was a serious dispute between the High Court and the State Legislature regarding the exercise of the powers, privileges and immunities by the State Legislature. 

Issues 

The issues presented before the Supreme Court in this reference were as follows:-

• Whether it was appropriate for the High Court to address the petition of Keshav Singh objecting the validity of the punishment of detention given to him by the Legislative Assembly of Uttar Pradesh for its contempt, as also for breach of its privileges and to make orders releasing Keshav Singh on bail?
• Whether it was appropriate for the Legislative Assembly of Uttar Pradesh to order the appearance of two Judges of the High Court and Advocate B. Solomon?
• Whether it was appropriate for the full bench of the High Court to make interim orders restricting the Speaker of the Legislative Assembly as well as other respondents from enforcing the directive of the Legislative Assembly?
• Whether the judges of the High Court handling a petition challenging the direction of a Legislature which laid down punishment on the petitioner for breaching its privileges or immunities, acted in contempt of the above stated legislature?
• Does the Legislature have the authority to initiate action against a Judge in the implementation of its powers, privileges and immunities?

Arguments of parties

Contentions of the Petitioner

In the petition submitted by Advocate B. Solomon for Keshav Singh, it was contended that his imprisonment was unlawful for many reasons. Firstly, Keshav was directed to be imprisoned after he was reprimanded and thus, the order of imprisonment was unlawful. Secondly, it was asserted that Keshav was not afforded a chance to defend himself and this was opposed to the rules of natural justice.

Eminent Jurist M.C Setalvad representing the Judges asserted that there was no need for including the dichotomy which prevailed between the Judiciary and the House of Commons in England in discourse about the Indian Constitution. He argued that there cannot be any uncertainty that the issue of interpreting Article 194(3) comes under the exclusive domain of the Supreme Court and the High Courts. The interpretation that the Court would put on the appropriate terms utilised in the latter part of the provision would conclusively decide the scope, extensiveness, as well as the nature of the privileges of the legislature. It was also said that Article 194(3) must not be read separately, instead it should be interpreted in its context and in consonance with other Constitutional provisions like Articles 32, 211 and 226. The substantial part of Article 194(3) hence read, it should be evident that there was no need of bringing any conflict or dichotomy between the authority of the High Court and the Legislative Assembly in this case. It was further said that it was not correct for the Legislative Assembly to adopt an approach which was prevalent in the House of Commons in England in the 18th-19th centuries. Mr. Setalvad also said that this issue should be handled based on the common agreement that has developed between the Judiciary and the Legislature.

Contentions of the Respondents

One of the contentions presented in front of the Supreme Court was that the reference as per Article 143(1) was invalid since any of the questions presented before the Court were not connected with any of the subjects in List I or List III of Seventh Schedule of the Constitution. Therefore, it was unwarranted for the President to refer these questions to the Court.

Mr. H.M Seervai stated that it is the privilege of the House to interpret the appropriate provisions of Article 194(3), as also to decide by itself what its powers and privileges are. It was also argued that even in England this dichotomy between the two contending jurisdictions asserted by the judicial bodies and the Parliament has been there since the beginning and exists even in modern day. The conflict between the Judiciary and the House of Commons has taken very serious character in some instances. There has been complete contradiction between the approaches adopted by the two bodies in some cases.

Mr. Seervai said that the Legislative Assembly took a similar stance which the House of Commons took in issues of comparable nature. He said that the Allahabad High Court had no jurisdiction to address the issues put forward by Keshav Singh. It was said that the submission of a petition by Keshav Singh through his advocate constituted contempt of the Legislative Assembly. At the time the Judges dealt with the petition and made an order on the same, they acted in contempt of the Legislative Assembly. In this case, the resolution ratified by the House against the two Judges and Mr. Solomon was in the character of a general resolution. Although warrants against the Judges had been revoked, it was evident that the resolution of the House and the warrants that were originally issued in furtherance of the said resolution were general resolution and general warrants. Therefore, it was not appropriate for the Court to examine the causes for which the warrants were promulgated. The House could not be asked to explain the causes for issuance of such warrants. This itself was an intrinsic component of the powers and privileges of the Assembly as per Article 194(3). 

Laws involved in Keshav Singh vs. Speaker, Legislative Assembly and Ors., (1965)

Article 143 : Power of the president to consult the Supreme Court

Article 143(1) sets out that if at any time it appears to the President that :-

(a) a question of law or fact has arisen or may arise in future, or

(b) the question is of such character and public significance that it is suitable to seek the opinion of the Supreme Court on it, he may put forward the question for the advisory opinion of the Court and the Court may, subsequent to such hearing as it views appropriate, report to the President its opinion on the matter.

Under clause (2), if the President refers to the Supreme Court those matters that are excluded from its jurisdiction under the proviso to Article 131, the Court will offer its opinion on the subject.

The use of the word “may” in clause (1) of the Article shows that the Supreme Court is not obligated to provide its advice for a reference made to it by the President.

In this case, the President put forward five questions for the opinion of the Supreme Court on 26th March, 1964. The order of reference indicated that it appeared to the President that the events in this instance had given rise to a major dispute between the High Court and the State Legislature which involved important questions of law regarding the jurisdiction of the High Court and the powers, privileges and immunities of the State Legislature and its members.

As regards to this case, the Supreme Court opined that the requisite of this provision is that the President must be convinced that a question of law has arisen or may arise in future. Prima facie the satisfaction of the President should justify the reference. The scope of this provision is wide enough that the President can put any question before the Supreme Court for its advice.

Article 194 : Powers, Privileges etc., of the House of Legislatures and of the members and committees thereof

Article 194 deals with certain powers and privileges which have been vested on the State Legislature. Such powers and privileges are – freedom of speech, right of publication of its proceedings, freedom from arrest, right to exclude strangers from its proceedings and hold secret sessions, right to prohibit publication of its reports and proceedings, right to regulate internal proceedings, right to punish members or outsiders for contempt.

Historically, privileges of the legislature evolved in England as a way for legislators to avoid arrest or prosecution for things said in the House. This power extends to the legislature’s authority over publishing its proceedings.

The State Legislatures also have the authority to penalise its members and outsiders for its contempt. The State Legislature has the authority to promulgate a general warrant to arrest a person found liable for contempt of the House.

The Supreme Court in this case ruled that the two Judges of the Allahabad High Court were not liable for contempt of the Assembly for passing an interim bail order. As per Article 226, a court has the power to direct the release of a person from unlawful detention. It was observed that courts in India have the prerogative to look into the legality of the imprisonment of a person deemed culpable by the Assembly in pursuance of a general warrant. As far as the assertion of the Assembly that the courts in England do not have the authority to determine the legality of a general warrant promulgated by the House of Commons, it was replied that such prerogative is not vested upon the Indian legislature. In India, legislatures have not at any occasion performed any judicial function and their historical or Constitutional framework does not permit them to be considered as Courts of Record. Therefore, the very basis on which the English Courts treat a general warrant issued by the House of Commons as incontestable, is absent in India.

Article 211 : Restriction on discussion in the Legislature

Article 211 forbids any discourse or debate relating to the conduct of any Judge of the Supreme Court or the High Courts in relation to their duties in the State Legislature. 

In this case, the Allahabad High Court stated that the resolution ratified by the Uttar Pradesh Legislative Assembly against the two Judges of the High Court was unconstitutional and in violation of Article 211. 

Article 226 : Power of High Courts to issue certain writs

Article 226 lays down that notwithstanding anything in Article 32, all High Courts will have the power, within the territorial limits of which they have jurisdiction to issue to any person or authority including in suitable cases, any Government, in those territories, directions, orders of writs, including writs such as habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them for the implementation of fundamental rights enshrined in Part III or for any other cause.

In this instance, Advocate B. Solomon filed a writ of Habeas Corpus as per Article 226 for Keshav Singh contending that detention imposed by the Legislative Assembly was illegal. Subsequently, the Legislative Assembly ratified a resolution against the two Judges of the High Court, Keshav Singh and his counsel B. Solomon. They immediately filed separate petitions in front of the Allahabad High Court. On 25th March, 1964, Advocate B. Solomon prayed for a writ of Mandamus and requested for a suitable order. The petition was heard by the Full Bench of the High Court which passed an interim order directing the stay of implementation of the resolution of the Legislative Assembly.

The Supreme Court said that the two Judges Bench of the High Court comprising Justice N.U Beg and Justice G.D Sahgal had the authority to address the writ petition contending the validity of the sentence enforced by the Legislative Assembly. It was further observed that under Article 226, a Court has the jurisdiction to order the release of a person sentenced by the Legislative Assembly under a general or unspeaking warrant. 

Relevant judgements referred in Keshav Singh vs. Speaker, Legislative Assembly and Ors., (1965)

In Pandit M.S.M Sharma v. Shri Sri Krishna Sinha and Ors (1958), the question before the Supreme Court was whether the privilege of the House under Article 194(3) overrule the fundamental right enshrined in Article 19(1)(a) and can the Bihar Legislative Assembly exercise the same authority as the House of Commons in United Kingdom. The Supreme Court dismissed the petition, as a foreigner managing a newspaper is not permitted to claim the freedom of speech and expression. The Court further ruled that the Bihar Legislative Assembly has identical powers and privileges as held by the House of Commons at the commencement of the Constitution.

In Re Delhi Laws Act, 1912 (1951), a reference was put forward by the President under Article 143 asking a few questions about the delegation of legislative powers to the executive for its opinion. It was laid down by the Supreme Court that the Indian Parliament is a creation of the Constitution of India and its powers, privileges and duties arise out of the Constitution. The Parliament cannot relinquish its powers by creating a parallel authority. Only ancillary powers can be delegated. There are restrictions on the delegation of power. Legislature is not permitted to delegate its essential functions.

In Re Kerala Education Bill, 1957 (1958), the President put forward some questions of law to the Supreme Court in accordance with Article 143(1) regarding the validity of the Kerala Education Bill, 1957. The Bill was ratified by the Kerala Legislative Assembly in 1957 and was held back by the Governor for review by the President. The issue before the Supreme Court was were the provisions of the Bill in violation of the fundamental rights of minorities provided under Article 30(1) and were the provisions of the Bill in contravention of the rights enshrined under the Constitution. The Supreme Court ruled that other than clauses (14) and (15), the rest of the provisions in the Bill did not contravene Article 30(1). It was further said that the legislation enacted by the State of Kerala must not supersede the fundamental rights set out in the Constitution.

Judgement in Keshav Singh vs. Speaker, Legislative Assembly and Ors., (1965)

After hearing the contentions and considering the important points laid down before it, the Supreme Court answered all the questions in this reference as follows:-

• The Lucknow Bench of the High Court of Uttar Pradesh, comprising of Justices N.U Beg and G.D Sahgal had the power to address the petition of Keshav Singh objecting the validity of the punishment of detention laid down on him by the Legislative Assembly of Uttar Pradesh for its contempt and for the breach of its privileges and to make orders releasing Keshav Singh on bail until the disposal of the petition.
• Keshav Singh by submitting the petition through his advocate and the Judges by addressing the petition and directing the release of Keshav Singh on bail had not acted in contempt of the Legislative Assembly of Uttar Pradesh.
• It was inappropriate for the Legislative Assembly of Uttar Pradesh to order the appearance of the two judges of the High Court along with Advocate B. Solomon in front of it and to summon them for clarification of its contempt. 
• It was valid for the full bench of the High Court of Uttar Pradesh to issue interim orders restricting the Speaker of the Legislative Assembly of Uttar Pradesh and the rest of the respondents from enforcing the directions of the Assembly.

Rationale behind the judgement

The Supreme Court said that powers vested on the President under Article 143(1) is broad enough that he can put any question to the Apex Court for its opinion. The prerequisite of this provision is that the President must be convinced that a question of law or a fact has arisen or will possibly arise. He must also be sure that the issue is of such a character and public significance that it is suitable to seek the advice of the Supreme Court. This case posed a difficult issue and thus the President took the decision to seek reference from the Supreme Court.

While discussing the scope of Article 194, the Court opined that though a legislator exercises his right of freedom of speech in infringement of, for instance, Article 21, he will not be accountable before a court. The framers of the Constitution gave so much significance to the necessity of absolute freedom in discussions in the legislature that they considered it was important to bestow full immunity on the legislators from any action in any court in regard to their speeches.

Regarding the judgement of Pandit M.S.M Sharma v. Shri Sri Krishna Sinha (1958) as mentioned above, the Supreme Court observed that the arguments advanced by the petitioner did not raise a general issue as to the relevance and applicability of all the fundamental rights guaranteed by Part III at all. The infringement of only two Articles was pleaded, they were Articles 19(1)(a) and 21. The case did not lay down a general proposition that whenever there is a conflict between the provisions of Article 194(3) and any of the provisions of the fundamental rights guaranteed by Part III, the latter must yield to the former.

The Supreme Court further elucidated that the paramountcy of the Constitution is crucial to the continuance of a federal State to restrain either the legislature of a federal unit or of the constituent States from undermining the fine balance of power upon which a Union of States is founded. This paramountcy of the Constitution is safeguarded by the supremacy of an independent Judiciary.

The legislatures in India have been vested with plenary powers, however, such rights are guided by the fundamental terms of the written Constitution. It may be implemented within the limits of the legislative domains assigned to their jurisdiction by the three lists provided in the Seventh Schedule; although the legislature must not exceed that limit. The power of the legislatures along with the Parliament is ruled by the provisions in Part III of the Constitution. If the Legislatures act in excess of the legislative subjects given to them and infringe on the fundamental rights of the citizens, their legislative measures ought to be set aside by the courts in India.

In a democratic nation which is governed by the Constitution, it is the Constitution which is supreme. Legislators, Ministers and Judges all pledge their allegiance to the Constitution. Thus, there is no uncertainty that the supremacy that can be asserted by the Parliament in England, cannot be asserted by any legislative body in India.

The Constitution endowed the Judiciary with the duty of interpreting the Constitutional provisions and safeguarding the fundamental rights of the citizens. Adjudication of a dispute is entrusted with the Judiciary of the nation and the power of interpreting of Article 194(3) is also vested with the Judiciary.

Analysis of Keshav Singh vs. Speaker, Legislative Assembly and Ors., (1965)

In this instance, the Apex Court had to determine and resolve the dispute between the Allahabad High Court and the Legislative Assembly of Uttar Pradesh. Resolving the dispute between the two main branches of the Government was important for smooth functioning of the State. After assessing the serious and sensitive nature of the issue, the President forwarded the issue to the Apex Court for its advice on the issue. In the order of reference, it was stated that the events caused a dispute of critical nature between the High Court and the State Legislature. 

The issue began when a person was ordered to be imprisoned for contempt of the State Legislature. When the two Judges of the High Court dealt with the petition of Habeas Corpus in accordance with Article 226, the matter further escalated. The House even passed a resolution against the two Judges of the High Court. Thereafter, two separate petitions were filed before the High Court. The centre of this dispute was whether the High Court was justified in determining the legality of the detention passed by the Legislative Assembly.

This case also led to the comparison between the authority and privileges of the House of Commons in the United Kingdom and the Parliament as well as the State Legislatures in India. The authority and privileges of the House of Commons evolved over a period of time as a result of customs and conventions, which were finally codified by the enactment of the Parliamentary Privilege Act, 1770. The House of Commons has the authority to penalise a person either a stranger or its own member for its “contempt” or “breach of privileges.” In this matter, the House is the exclusive authority to decide on whether its privilege has been breached or not. The House can promulgate a general or unspeaking warrant to arrest a person found culpable of contempt of the House. Any court cannot examine its legality. The Courts in the U.K generally avoid interfering in the powers of the House. In Bradlaugh v. Gossett (1824), the plaintiff was restrained from entering the House at the directions of the House of Commons. The plaintiff pleaded to the Court to render the directive of the House as unlawful. It was ruled that the House of Commons was not answerable to the regulation of the Court, as far as internal proceedings were concerned. The House of Commons is the exclusive judge of the legality of its internal affairs. The Courts have no power to intervene in its right to regulate its own affairs.

The Legislature in India obtains its power and authority from the Constitution. The Constitution expressly sets out two privileges i.e, the freedom of speech in the legislature and the right of publication of its own proceedings. Before the 44th Amendment, in relation to the other privileges, Article 194(3) laid down that the powers, privileges and immunities until specified by the House of the State Legislature shall be those of the House of Commons. Subsequent to the 44th Amendment, Section 194(3) now sets out that the powers, privileges and immunities of the Legislature of a state, and its members and committees of such legislature will be that as shall be specified by the legislature by law, and till then it will be such as existed before the 44th Amendment. It is to be noted that after the 44th Amendment, any mention of the House of Commons has been erased.

The Supreme Court in this case ruled that courts in India have the authority to determine the legality of imprisonment of a person penalised by the Legislative Assembly under a general warrant. This marks a clear departure from the custom of the House of Commons. While interpreting Article 194(3), the rule of harmonious construction should be adopted.

Conclusion

This case is an example of the struggle for power that has taken place between the legislature and the judiciary. There were several missteps which escalated the conflict in this matter. The choice of the Legislative Assembly to pass a resolution against the two Judges of the High Court undermined the authority of the Judiciary, which has been entrusted with safeguarding and interpreting the Constitution.

The powers of the legislatures in India should not be equated with the powers held by the House of Commons in the U.K. Though the powers are similar in nature, the legislature in India is subject to Constitutional provisions. The Constitutional supremacy in India must be acknowledged. All the organs of the government should function in conformation to the Constitution.

The power of the legislature to punish for its contempt must be exercised carefully. This power to punish for his contempt must be exercised in line with the other provisions of the Constitution. Article 32 and 226 of the Constitution confers wide powers upon the Supreme Court and the High Courts respectively, to issue a writ of habeas corpus against any authority which according to Article 12, includes even the legislature. Thus, the Supreme Courts and the High Courts can exercise their power even against the legislature. The legislature is sovereign only to the extent that the Constitution grants it and, therefore, it is open to the Judiciary to examine the legality of the use of legislative power.

Frequently Asked Questions (FAQs)

How is the House of Commons different from the legislature in India? 

The House of Commons is the lower house of the Parliament in the United Kingdom. The House of Commons can punish a person for its contempt or breach of its privileges. It is the sole Judge in this matter. Any Court cannot examine the legality of its decisions.

The Legislature in India is subject to the provisions of the Constitution. The Judiciary in India has the right to examine the legality of a legislative action.

What is the right to freedom of speech given to the legislature by the Constitution? 

Article 105(1) and Article 194(1) bestows freedom of speech upon the members of the Parliament and the State Legislatures respectively. These provisions give immunity to the members of the House in respect of anything said within the House. They shall not be liable before any court of law in relation to anything said inside the House.

What is the right to publication of its own proceedings given to the legislature by the Constitution?

Article 105(2) and Article 194(2) provide that the members of the Parliament and the State Legislatures shall not be liable to any proceeding in any court in respect of anything said or any vote given by them in Parliament and the State legislatures or any committee thereof, and they shall not be liable in respect of the publication under the authority of the Parliament in any report, paper, votes or proceedings. 

References

• Dr. J.N. Pandey; The Constitutional Law of India; Central Law Agency
• https://www.britannica.com/topic/parliamentary-system 
• https://www.defactolaw.in/post/legislative-privileges-in-india 
• https://theamikusqriae.com/keshav-singh-vs-speaker-legislative-assembly/ 
• https://www.lawctopus.com/academike/parliamentary-privileges/
• https://aishwaryasandeep.in/keshav-singh-case-commentary/
• https://lexpeeps.in/keshav-singh-v-speaker-legislative-assembly/ 

This article is written by Sudhakar Singh. This article provides a detailed analysis of the AK Gopalan case. In this case, the court has accepted the narrower scope of Article 19 and Article 21, which were later overturned by the Supreme Court itself. The article deals with the difference made by the court between “due process of law” in the American Constitution and “procedure established by law” in the Indian Constitution and the interpretation of the term “law”. 

Introduction

Fundamental rights, which are frequently incorporated in constitutions and international human rights treaties, act as protection against the arbitrary use of detention. These rights include the right to personal liberty, a fair trial, freedom from torture and harsh treatment, and the ability to seek legal recourse. The integration of detention law and basic rights raises substantial issues pertaining to the boundaries of the authority of the state. The procedural protections are required to avoid abuse, and the remedy procedures are available in circumstances of wrongful confinement. Ensuring that detention methods correspond to fundamental rights is critical to preserving the rule of law and promoting the ideals of justice and dignity. 

The makers of the Indian Constitution intended to include preventive detention to serve exclusively as emergency legislation. Under ‘Entry 9 of List I’ of the Constitution of India, the Parliament has the exclusive power to enact a law for preventive detention for a reason connected with the defence, foreign affairs, or security of India. Impliedly, it can be said that preventative detention regulations are a result of a de facto “state of emergency.” A closer look indicates that the idea of “emergency” used in preventative detention significantly differs from the concept of “emergency”. Personal liberty is not an exception to the basic right. It puts limitations on the discretionary actions of Parliament, affecting the basic tenets of human rights. 

In Parliamentary debates, R.K. Chaudhuri said that “maintenance of public order is an ordinary function of the police and the magistracy. Neither war has been declared, nor a state of emergency has been declared up till now. Therefore, we do not need any piece of legislation having a concept of preventive detention ‘to maintain public order’ in the country”. In A.K. Roy vs. Union of India (1981), the Court held that the National Security Act, 1980, is constitutional, but the extraordinary power of preventive detention should be narrowly construed. Detention without trial is an evil to be suffered, but to no greater extent and in no greater measure than is minimally necessary in the interest of the country and community.

Details of the case

• Case name: A. K. Gopalan vs. State of Madras 
• Petition No.:  XIII of 1950
• Equivalent citations: MANU/SC/012/1950 
• Act involved: Preventive Detention Act, 1950
• Important provisions: Article 14, Article 19, and Article 21 of the Constitution of India 
• Court: Honourable Supreme Court of India 
• Bench: H.J. Kania C.J., M.Patanjali Sastri, Sudhi Ranjan Das, M.C. Mahajan, B.K. Mukherjee, and Saiyid Fazal Ali JJ.
• Petitioner: AK Gopalan 
• Respondents: State of Madras 
• Judgement Date: 19.05.1950

Facts of AK Gopalan vs. State of Madras (1950)

Ak Gopalan was a prominent Communist leader in the State of Madras (present-day Tamil Nadu). On December 17, 1947, Ak Gopalan was arrested in Malabar for delivering violent speech in public. On 22nd April 1948, while the criminal proceedings were going on, a detention order was made under the Madras Maintenance of Public Order Act, 1949. This detention order was held illegal by the Madras High Court. On the same day, another order for detention was made by the government. The petitioner filed a writ petition of habeas corpus in Madras High Court. The petition was rejected on the ground that the petitioner did not get bail in any of the three cases; therefore, the order for detention is not illegal. On 23 February 1949, the petitioner was sentenced to six months of rigorous imprisonment in two of his criminal proceedings by the Magistrate. Later, his convictions were set aside. In another case, the petitioner was sentenced to five years of rigorous imprisonment by the Sessions Judge of North Malabar, which was reduced to 6 months by the Madras High Court. Another writ petition of Habeas corpus was dismissed by the Madras High Court in January 1950. Meanwhile, the detention order under the Madras Maintenance of Public Order Act was cancelled, and another order of detention under Section 3(1) of the Preventive Detention Act was passed on 1st March 1950.

The petitioner approached the Supreme Court of India by filing a writ of habeas corpus under Article 32(1), challenging the legality of the order made under the Preventive Detention Act. He claimed that he had been detained in jail since 1947 and that another order for detention had been made by the State government, which violates his fundamental rights enshrined under Article 19, i.e., the right to movement, and Article 21, i.e., the right to life and personal liberty. He further claimed that he was not informed of the grounds of his arrest, which violates his fundamental rights enumerated under Article 22 of the Constitution. The state tried to justify the detention by contending that the order was made with the strength given under the Preventive Detention Act. 

Issues raised 

• Whether the Preventive Detention Act is constitutional. 
• Whether an order made under Section 3(1) of the Preventive Detention Act violates the provisions of Article 14, Article 19, and Article 21 of the Indian Constitution. 
• Whether other provisions of the Preventive Detention Act are in accordance with Article 22 of the Constitution.  

• Whether ‘Procedure established by law’ in the Indian Constitution acquires the same meaning as ‘Due process of law’ in the American Constitution. 
• Whether Article 19 and Article 21 are related.

Arguments of the parties 

Petitioner 

The learned counsel for the petitioner argued that:

• The state has ordered the detention of the petitioner, which violates the petitioner’s right to move throughout the territory of India. Therefore, the State must show that the order for detention has been made on reasonable grounds under Article 19(5). 
• The term ‘Due process of law’ of the American Constitution holds the same meaning and makes no difference in the meaning of the interpretation of the expression ‘Procedure established by law’ of the Indian Constitution under Article 21.
• The American Constitution provides both substantive and procedural protection. Whereas in India, only procedural protection is guaranteed.  
• The word ‘law’ does not mean only laws enacted by the legislature. It was argued that the term ‘law’ means the principle of natural justice. It means ‘jus’ not ‘lex’, i.e., law, in the abstract meaning of the Principle of Natural Justice.

Respondent 

The learned attorney general for the respondent argued that:

• The Preventive Detention Act does not violate Article 21 and is in accordance with Article 22 of the Indian Constitution.  
• Learned Counsel argued that the procedure established by law had been appropriately followed, as Parliament is the competent authority to make laws related to detention following the legal procedure under ‘Entry 9 of List I’.
• It was argued that the Preventive Detention Act does not violate any law as it is a result of the legal procedure followed by Parliament.  

Relevant laws and provisions

Constitutional provisions 

Article 19

Human beings have certain inherent, basic, and natural rights. Article 19 ensures such rights to the extent of citizens. It promotes the Democratic value and feeling of oneness and unity in the country. Indian citizens are guaranteed freedom under Article 19 of the Constitution. Freedom indicates the absence of control by the State. Article 19(1) specifies the matters in which citizens have the liberty to use their freedom, but their freedom is subject to the restrictions enumerated under Articles 19(2) to 19(6). 

Under Article 19(1), from clauses (a) to (g), citizens have six freedoms, i.e., speech and expression, freedom to peaceful assembly, associations, freedom of free movement, and the freedom to reside in any part of the country and practise their business and profession. According to the Supreme Court, though there are various rights that have not been expressly given under Article 19(1), they can be inferred from clauses (a) to (g), which implicitly include various human rights. 

The right to freedom of speech and expression is ensured under Article 19(1)(a), which means every citizen has the right to express their views and opinions on any issue through any medium. It includes freedom of communication and the right to propagate or publish opinions. This right is not absolute and is subject to reasonable restrictions under Article 19(2). Freedom of speech and expression cannot be exercised against the public order, morality, decency, sovereignty and integrity of India, the security of the State, or friendly relations with foreign nationals. 

The right to peaceful assembly is guaranteed under Article 19(1)(b). Such an assembly must be without arms. It does not confer on anyone the right to hold meetings on government premises or on the property of another. Article 19(3) puts reasonable restrictions on this right. To some extent, the grounds for restrictions are the same as those provided for in Article 19(1)(a). Citizens can form associations, unions, or cooperative societies under Article 19(1)(c). This right ensures the very important feature of the Indian Constitution, i.e., the parliamentary form of government. Without the right to form associations, no political parties can exist; therefore, this right is the very lifeblood of Indian democracy. To prevent the misuse of such a right, Article 19(4) puts reasonable restrictions on it and ensures that such a right cannot be exercised against the interests of public order, morality, or the sovereignty and integrity of India. Whereas, Articles 19(1)(d) and 19(1)(e) guarantee that citizens can move freely throughout the territory of India and can reside in any part of the territory of India. They can move from one state to another or from one place to another in a state. Article 19(5) ensures that the exercise of freedom of movement must not be against the interests of the general public or any scheduled tribes. Freedom to carry on trade, commerce, occupation, and business of one’s liking is ensured under Article 19(1)(g). However, under Article 19(6), the State can make any law in the interest of the general public. The State is not prohibited from making any law requiring professional or technical qualifications to carry on a specific trade, occupation, or business.  

Article 21

Article 21 is the source of many substantive and procedural safeguards for the person. In the Maneka Gandhi case, Krishna Iyer J. explains Article 21 as the procedural magna carta protective of life and liberty. The life and liberty of any person cannot be taken unless there is procedural fairness. The nexus between Article 14 and Article 21 emphasised that any procedure contemplated under Article 21 must pass the test of reasonableness. In Shantistar Builders vs. Narayan Khimalal Totame (1990), the Supreme Court held that under Article 21, the right to life includes various other rights, e.g., the right to food, clothing, a decent environment, and reasonable accommodation to live in. The difference between the need for shelter for humans and animals must be kept in mind while deciding on the right to life. For an animal, shelter is required for the bare protection of the body, whereas for humans, shelter must be a place for suitable accommodation where he can grow in physical, mental, and intellectual aspects. 

One of the most noteworthy expansions to Article 21 is that the right to life means the right to dignified human life and not merely an animal existence. This means that life under Article 21 is about more than just physical survival; it is also about providing a quality of life that allows people to live with dignity and self-esteem. As a result, various rights, including the right to privacy, the right to a clean environment, the right to health, and the right to education, have been recognized as essential components of the right to life. In Justice K.S. Puttaswamy vs. Union of India (2017), the right to privacy was accepted as a fundamental right of a person under Article 21. Similarly, the right to a clean environment was affirmed in the case of Subhash Kumar vs. State of Bihar (1991), acknowledging that environmental pollution that harms human health violates Article 21. Overall, Article 21 protects human dignity by ensuring that everyone lives a fulfilling and respectful life. It demonstrates the Indian Constitution’s dynamic nature as it adapts to evolving societal requirements and beliefs. Through its broad and expansive interpretation, Article 21 has become a cornerstone for defending people’s fundamental human rights in India.

Article 32 

The right of access to the Supreme Court under Article 32 is a fundamental right itself. Article 32 provides a guaranteed, quick, and summary remedy for enforcing fundamental rights so that a person can go straight to the Supreme Court without having to undergo the exhaustive proceeding from the lower to the higher court as in any ordinary litigation. The Supreme Court has thus been constituted as the protector and guarantor of fundamental rights. A person is guaranteed the right to move the Supreme Court under Article 32(1), by appropriate proceedings, for the enforcement of the fundamental rights enumerated in the Constitution. In addition to it, Article 32(2) empowers the Supreme Court to issue appropriate orders, directions, or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of the petitioner’s fundamental rights. A writ does not lie to create or establish a legal right, but to enforce a fundamental right that has already been established. However, such power of the Supreme Court is not exclusive, under Article 32(3), Parliament may empower any other Court to exercise within the limits of its territorial jurisdiction all or any of the powers exercisable by the Supreme Court under Article 32(2). This can, however, be done without prejudice to the Supreme Court’s powers under Articles 32(1) and (2). 

Statutory provisions 

Section 12 of the Preventive Detention Act, 1950 

Section 12 of the Preventive Detention Act of 1950 defines the validity and duration of detention in certain cases. It provides that an order for the detention of any person can be made for more than three months, but such an order must not exceed the period of twelve months. It provides that in cases of detention for more than three months, the opinion of the advisory board is not required. Such detention shall be made to prevent a person from acting in any manner prejudicial to the security of the state for the maintenance of public order, relations with foreign powers, defence of India, or security of India. It provides that the government can make an order for detention on any ground prescribed thereof. Therefore, it provides enormous power in the hands of the government to detain a person through a violation of certain basic rights. Section 12(2) provides that there should be a review of the detention order after six months, whether such an order is made by the Central government or the State government. 

Section 14 of the Preventive Detention Act, 1950

Section 14 of the Preventive Detention Act of 1950 defines the authority of advisory boards in the context of preventive detention. The Act was designed to allow the government to hold people without trial to keep them from endangering the state’s security or public order. It incorporates provisions for reviewing cases by advisory boards. The advisory board restrains the detention power of authorities. Section 14 requires the Advisory Board to examine detention orders to determine if there is adequate justification for the individual’s continuing custody. If the Advisory Board determines that the detention of a person is unjustified, the detainee must be released immediately. If the board maintains the detention, the individual in question could be kept for the duration specified by the authorities. Section 14 therefore acts as a critical check on the executive’s authority to hold people without trial, ensuring that such actions are subject to court examination and adhere to the standards of justice and fairness. 

Principles of natural justice 

Natural justice is a common law principle. It ensures fairness, reasonableness, and equality for the person. It is a legal safeguard provided to persons to protect themselves from the arbitrary actions of administrative authorities. The principle of natural justice is considered as fundamental to the rule of law. Under the Indian Constitution, the principle of natural justice is embodied through various heads. Natural justice includes three basic principles: 

• Nemo judex in causa sua: It is also known as the rule against bias. It means no person shall be a judge in his cause. The judge must be impartial while deciding the case. Biasness is of various types, mainly personal bias, pecuniary bias, subject matter bias, and policy notion bias. Other forms of bias include gender bias, racial bias, and religion-based bias. 
• Audi Alteram partem: It is a Latin term which is also known as the Rule of Fair Hearing. It means no party should be unheard while deciding a case, or, in other words, judges shall listen to the other side before deciding the cases. It ensures fairness, openness, and accountability. It protects individuals’ rights by emphasising that a person should not be deprived of his life and liberty without being heard. 
• Reasoned decision: It ensures that while deciding a case, judges must give their reason for arriving at such decisions. Judges should explain their decisions carefully and clearly. It helps parties understand the reason why their rights have been affected. It shows the logical thinking of judges to conclude their judgement.r court to exercise within the limits of its territorial jurisdiction all or any of the powers exercisable by the Supreme Court under Article 32(2). This can, however, be done without prejudice to the Supreme Court’s powers under Articles 32(1) and (2). 

Judgement in AK Gopalan vs. State of Madras (1950)

The Supreme Court held that the Preventive Detention Act, 1950, is not in conflict with Article 19 of the Constitution. Article 19 does not include preventive or punitive detention. Accepting the petitioner’s position would nullify various criminal statutes that allow for punitive confinement, which violates the Constitution’s original objective. The court observed that Article 19(1) does not apply to persons whose freedom is limited by law and thus cannot be enforced. Therefore, the Preventive Detention Act of 1950 does not violate Articles 19 and 21 of the Indian Constitution.

The majority opinion (Kania C.J., Mukherjee, Das, Patanjali Sastri JJ.) was that Section 14 of the Act is unconstitutional for infringing the rights provided by Article 22(5) of the Constitution and is violative of Article 19(5). The court clarified that while Section 14 is ultra vires, it does not invalidate the whole Act of 1950. Because the section can be separated from the Act.

Minority opinion (Fazal Ali and Mahajan JJ.) held that Section 12 of the Act is also unconstitutional as it gives wide power to the government to make rules for detention. Such a power of government is inconsistent with the power conferred by the Constitution. Therefore, the detention of Gopalan should be held invalid as Article 21 differentiates between ‘personal liberty’ and freedom under Article 19(1). Article 19 ensures the liberties of the citizens of India. It ensures rights and control mechanisms. Whereas Article 21 extends protection to all persons (citizens and non-citizens). It is clear that there is a distinction between the provisions of Article 19 and Articles 20, 21, and 22. In order to determine whether a right is abridged or infringed, it is first necessary to determine the extent of the right given by the Articles and the limitations prescribed in the articles themselves permitting its curtailment.

Article 21 is a combination of procedural and substantive rights. The court interpreted “personal liberty” to include travel and residence inside Indian territory but not the extra freedoms provided in Article 19(1)(a) to (g). The court clarified that “personal liberty” refers to bodily freedom and is only partially guaranteed by Article 19, despite its narrow meaning. Article 22 covers many of the components of the Preventive Detention Act of 1950. The Apex Court upheld Section 3 of the Act and gave the government broad discretionary powers to confine any person. The court ruled that Sections 7 and 11 of the Preventive Detention Act of 1950 are also valid. Under Article 22(7)(b), parliament does not have the authority to establish a minimum period of detention. Articles 22(5) and 22(6) are given to protect the rights of detainees. The court held that Section 14 of the Act is unconstitutional since Article 22(5) provides that the detainee shall be communicated with the grounds of his detention.

Ratio decidendi 

The expression ‘procedure established by law’ means procedure prescribed by the law of the nation. The court observed that the Constituent Assembly would have done it if they felt the need to incorporate the expression ‘due process of law’. The constituent assembly had done it with purpose because they wanted to limit the boundaries of Article 21 to a certain extent by saying that a person should not be deprived of his life and personal liberty except by a procedure established by law.

In the argument that Article 19 and Article 21 should be read together, the Court was of the opinion that it should determine the true scope of Article 19 and its correlation with other Articles. It is useful to read Article 19 by itself. Article 19 gives substantive rights, whereas Article 21 is a procedural right. Article 19 confers rights only to the citizens of India, whereas protection of personal liberty is given to citizens as well as non-citizens. Article 19 ensures the right to move freely throughout the territory of India, which is a wholly different concept from the right to personal liberty. Article 21 has a broader meaning and covers many more rights that constitute personal liberty, e.g. freedom of speech can be a part of liberty [Article 19(1)(a)], but the right to hold property does not constitute a part of liberty [Article 19(1)(f); later, it was removed from Article 19]. But Article 21 is limited by the word ‘personal’ which means these rights are not covered under the expression ‘personal liberty’. There is no relation between Article 19 and Article 21. The subject matter of both the Articles is different, and they deal with the rights covered by their respective words from totally different angles. Article 19 is restricted on the grounds given under 19(2) to 19(5). Whereas Article 21 is restricted by the expression ‘procedure established by law’. The court observed that freedom of movement has nothing to do with personal liberty, as the Article has a restricted meaning. 

On Article 19, Das J. was of the opinion that Article 19(1) confers various rights to a person, but such rights cannot be exercised if a person has been convicted or has been detained under any law. He cannot take the ground that his freedom has been violated. The validity of the law cannot be judged under Article 19(5). On the same footing, Mahajan J. believed that any laws relating to preventive detention should not be governed under Article 19(5), as special provisions are given under Article 22. Fazal Ali J. was of dissenting opinion and said that preventive detention infringed on the rights given under Article 19(1)(d). Laws related to preventive detention can be a subject matter of limited judicial review, as provided under Article 19(5). 

The court held that the term ‘law’ in Article 21 means positive or state-made law. The term ‘Established’ in Article 21 means prescribed, and if Parliament or the State Legislature enacted a procedure for depriving a person of his personal liberty, it would be sufficient. Article 21 gives no protection if laws are made by competent legislative action in the field of substantive criminal law. 

Obiter dicta

The Supreme Court has highlighted the four-point distinction between Article 21 of the Indian Constitution and the Similar Clause in the American Constitution. 

The court said that:

• In the American Constitution, the term ‘liberty’ is used plainly, whereas in the Indian Constitution, the term ‘personal liberty’ is used. 
• In the American Constitution, the same protection has been given to property as that of life, whereas in India, the protection to property was given in Article 31. 
• The word ‘due’ is removed, and ‘due process of law ‘ is not used with purpose. 
• The term ‘established’ in India is limited to ‘procedure’ as used in Article 21. 

It does not mean that the word ‘law’ signifies the Universal Principle of Natural Justice. It was believed that Article 19 does not apply directly to any law that is related to preventive detention. Even if a law violates rights conferred under clauses (a), (d), (e), or (g) of Article 19(1), such a law cannot be declared invalid. Article 19(5) gives protection to such impugned acts. 

The court was of the opinion that Part III has given various different and separate rights. Articles 22(1) and (2) put restrictions on Article 21. If the authority has followed the procedure to make arrest and detention given under Articles 22(1) and (2), even if they infringe on the personal liberty of any person, it would be legal and valid. 

The expression ‘procedure established by law’ means any law that has been enacted by the State under its competence following the procedure prescribed by law. Such a law cannot be invalidated on the grounds that it consists of some right-infringing provisions. 

It was held that if any detention has been made under Article 22(3), then safeguards against such protection have been given under Articles 22(4) to (7) of Part III of the Indian Constitution.  

Kania C.J., Mahajan, and Das JJ. were of the opinion that Article 22(5) does not confer any right to give evidence or to make oral representation in court. Article 22(5) provides that as soon as an order for detention has been made, the authority shall communicate the grounds for detention to the detainee. It was said that Article 22(5) makes it mandatory to make representation of detained persons. Still, the Constitution does not provide to whom such detention should be made or how the representation should be made. Any law cannot be invalidated only on the ground that it does not provide a solution to these questions. 

Reading Article 22 with Article 246 and Schedule VII, list 1 entry 9, and list 3 entry 3, it is unambiguous that Parliament is empowered to make laws for detention for reasons connected with:

• Defence
• foreign affairs 
• Security of India and Security of the State
• Maintenance of public order and morality 
• Essential supplies and support 

Critical analysis of AK Gopalan vs. State of Madras (1950)

Immediately after the Constitution was enacted, the question of the interpretation of the terms “procedure established by law “, “personal liberty “, “life”, and “law” arose. In the Ak Gopalan case, the interpretation of expression was to be done while determining the validity of the Preventive Detention Act, 1950. An attempt was made by Ak Gopalan to bring better procedural safeguards to detained persons than are available to him under the Preventive Detention Law and Article 22. AK Gopalan contended that ‘law’ under Article 21 incorporates the principle of natural justice. The reasonableness of preventive detention laws should be judged under Article 19. Along with it, the expression “procedure established by law” is the same as the concept of due process of law under the American Constitution, which determines the reasonableness of procedures enacted by State legislatures or Parliament. All such contentions were rejected, and the court gave a narrower meaning to the expressions “procedure established by law “, “personal liberty “, “life” and “law”. 

After the traumatic experience of an emergency, the Supreme Court accepted the liberal tendency in the matter of interpretation of fundamental rights, specifically Article 21. 

In the Maneka Gandhi case, the Constitution Bench has overruled the ratio given in the AK Gopalan case. The court laid down that Articles 14, 19, and 21 are not exclusive, and there is a nexus between these three Articles. Furthermore, any law prescribing the procedure for depriving a person of personal liberty must fulfil the requirements of Article 19, and such procedures must also satisfy the test of reasonableness under Article 14. In furtherance of it, the Court said that the term “personal liberty” is of the widest amplitude and includes a variety of rights that constitute the personal liberty of man. Personal liberty should not be read in a narrow and restricted sense so as to exclude the liberties provided under Article 19. In relation to the procedure established by law, the court was of the opinion that the procedure must satisfy the requisites of being fair and reasonable. The procedure cannot be arbitrary, unfair, or unreasonable. The test of reasonableness must be incorporated while determining the procedure contemplated under Article 21. The scope of preventive detention cannot only be examined under Article 22, but it must also satisfy Article 19, Article 20, Article 21, and Article 22 of the Indian Constitution.

According to Krishna Iyer J., “no fundamental rights is an island in itself. Just as a man is not dissectible into separate limbs, cardinal right is an organic constitution that has a synthesis.” 

Since the Maneka Gandhi case, the Supreme Court has given greater protection to the personal liberty of a person. 

Conclusion 

In AK Gopalan vs. State of Madras, the Apex Court has given narrower meaning to the rights conferred under Article 19, Article 21, and Article 22. The majority opinion concluded that the term ‘law’ cannot be read with the rule of natural justice. This will give a vague and indefinite meaning to the Article. The law cannot be laid down on vague standards. Law does not mean abstract law. Being in detention, the rights of detention conferred under Article 19 should be justiciable under Articles 19(2) to 19(6). The case has deliberately narrowed the scope of the expression “procedure established by law” under Article 21, citing that the concept of reasonableness has varied from judge to judge, statute to statute, time to time, and subject to subject. That is why due process was not accepted by the founding fathers of the Constitution. The dissenting opinion of Fazal Ali J. was in favour of the rule of natural justice and the acceptance of due process of law under Article 21 of the Constitution. So far as Section 14 is concerned, Section 14 of the Preventive Detention Act was declared to be a violation of a fundamental right under Article 22, as it deprives the person of knowing the ground of his detention. Whereas, under Article 22(5), the authorities making the order for detention were directed to communicate the grounds of detention to the detenu. As communication of detention grounds enforces the right of the detenu to move court for representation against the order of detention and enforcement of his fundamental rights under Article 32(1) and (2), the Court clarified its stance on the validity of the Act and ordered that the Act remain valid except for Section 14 of the Preventive Detention Act of 1950.

Frequently Asked Questions (FAQs)

Which case takes the broader interpretation of Article 21, protection of life and personal liberty?

Ak Gopalan vs. State of Madras has defined ‘personal liberty’ in a narrower way. Later, Maneka Gandhi vs. Union of India opened a broad scope of Article 21, and later, the jurisprudence of personal liberty was developed by the Apex Court through various cases. 

Why is the AK Gopalan case also known as the preventive detention case?

The case mainly discussed the validity of the preventive detention of Communist leader Ak Gopalan, and the validity of the Preventive Detention Act was upheld in this case. This is the reason the AK Gopalan case is also known as a preventive detention case.

When and why was the Preventive Detention Act repealed?

The Preventive Detention Act was repealed in 1969 as it was opposed by the then Prime Minister of India, Indira Gandhi.

References

• https://www.thakur-foundation.
• MP JAIN, INDIAN CONSTITUTIONAL LAW (2022), by LexisNexis 
• JN PANDEY, CONSTITUTIONAL LAW OF INDIA, (2024) by Central Law Agency 

This article is written by Rachel Sethia. This article offers a detailed analysis of the case of Basheshar Nath vs. CIT (1959) along with the background, the facts, issues, legal aspects involved and the judgement with reference to the landmark precedents considered by the Apex Court while passing this judgement. In addition to all this, it has a critical analysis of the case. 

Introduction

Fundamental rights cannot be given up as they are not only essential for the individuals but also are a part of public policy under the Indian Constitution. It is the duty of the government to protect these fundamental rights. The concept of fundamental rights was adopted from the United State Constitution under which those rights can be waived, but then the same cannot be done in India. It was held by the Supreme Court in the present case of Basheshar Nath vs. CIT (1959). This is a landmark judgement on the Doctrine of Waiver wherein the court held that the government cannot implement any law which is against Article 13 of the Indian Constitution and the citizen cannot voluntarily waive off their fundamental rights. 

Doctrine of waiver 

Doctrine of waiver, as defined by Black’s Law Dictionary, is the intentional or voluntary relinquishment of a known right. When a person gives away his right to exercise or not to exercise his right intentionally and with full knowledge is said to be a waiver. When a person waives his right, it means that a person can no longer claim that right and is prevented from challenging the constitutionality of that law for the benefit of which, the right is waived. 

In the case of Olga Tellis & Ors vs. Bombay Municipal Corporation & Ors (1985), the pavement dwellers gave an undertaking that they would not claim any fundamental right to put up huts on pavement or public roads and that the demolition of the huts will not be obstructed by them after a certain date. Later, when the huts were sought to be demolished after the specified date, the pavement dwellers put up the plea that they were protected by Article 21 of the Indian Constitution. It was argued by the respondents in the Apex Court that the pavement dwellers cannot raise such a plea because of their previous undertaking. The court overruled the objection of the respondents and held that fundamental rights cannot be waived. There can be no estoppel against the Constitution. Fundamental rights are not only present in the Constitution to benefit individuals, but also to secure the larger interest of the community. The court observed that no individual can barter away the freedoms conferred on him by the constitution.  

Details of the case

Case Name: Basheshar Nath vs. Commissioner of Income Tax, Delhi, Rajasthan & Ors.

Appellant: Basheshar Nath

Respondents: Commissioner of Income Tax, Delhi & Rajasthan & Ors. 

Court: Supreme Court

Bench of Judges: Chief Justice Sudhi Ranjan Das, Justice J.L Kapoor, Justice K. Subba Rao, Justice N.H Bhagwati and Justice S.K Das

Type of Case: Civil Appeal 

Date of Judgment: 19th November 1958

Citation: AIR 1959 SC149

Facts of Basheshar Nath vs. CIT (1959)

On 22nd July, 1948, the Central Government referred the appellant’s case to the Income Tax Investigation Commission under Section 5(1) of the Taxation on Income Act, 1947 (hereinafter referred as the Act). Such reference was made because the central government has reason to believe that appellant has evaded tax. Subsequently, the Commission directed the designated officials, under Section 6 of the Act, to examine the appellant’s financial records. It came to the notice of the investigating commissioner that the appellant has been evading tax amounting to Rs. 4,47,915. After the Commission had decided upon the amount of concealed income, the commission offered the appellant to settle the evasion by paying 75% of the concealed amount along with a penalty of Rs. 14,064 to which the appellant on 19th May 1954, agreed to settle under Section 8A of the Act and agreed to pay Rs. 3,50,000 Lakhs by way of tax and penalty. 

The Commission had approved the settlement and conveyed the same to the central government, which accepted it, and the commission officially recorded the settlement. After this, in the case of M. Ct. Muthiah vs. The Commissioner of Income Tax Madras (1955), the Supreme Court declared Section 5(1) ultra vires Article 14 as the procedure applied to persons dealt with thereunder became discriminatory in character which made the settlement made under Section 8A unenforceable as Section 5 was declared unconstitutional rendering it void. Appellant came to know about the same and wrote to the commission to refund his money to which the commission replied that the settlement is binding and is not subject to revocation. Being aggrieved by this decision of the commission, the appellant moved to Supreme Court under Article 136 of the Indian Constitution and obtained special leave to appeal against the order by the commission of settlement. 

Issues raised in Basheshar Nath vs. CIT (1959)

1. Whether the settlement made under Section 8A of the Taxation on Income Act, 1947 (Investigation Commission) is illegal and void?
2. Can a fundamental right guaranteed by the Constitution be waived?

Arguments of the parties

Arguments by the appellant

• The plea taken by the appellant was that since Section 5(1) of the Act has been declared unconstitutional, the basis of the investigation report submitted by the commission no longer exists. Therefore, any settlement based or relying on this Section was not enforceable. 
• It was argued by the appellant that the Commission of Income Tax qualifies as a Tribunal under Article 136 of the Indian Constitution and was performing judicial duties when the order was passed by it which is now under question. 
• It was also argued by the appellant that essentials for applicability of the doctrine of waiver were absent in the present case. Therefore, the doctrine of waiver will not be applicable. 

Arguments by the respondent

• The respondent argued that the appellant had waived the fundamental right enshrined in Article 14 of the Constitution by voluntarily entering into a settlement with the commission and was therefore not entitled to challenge the settlement. 
• It was argued on behalf of the respondent by the Attorney General that the said Act was established before the Constitution came into force and back then the fundamental rights were not recognized. Therefore, the procedure of the said act cannot be questioned even if the procedure was discriminatory. 
• The Attorney General representing the respondent also argued that since the inception of enforcement of the Constitution, the appellant has not been compelled to comply  with the procedure prescribed in the said Act. He voluntarily proposed a settlement, which was accepted by the government on the recommendation of the commission. 
• Further, it was argued on behalf of the respondent that the order in question was merely a reply to the communication received by it from the appellant. 
• The Attorney General representing the respondents contended that there has not been any ruling from the court in which the court declared that Section 5(1) of the Act completely void. He argued that upon examining the various Sections of the Act, it becomes apparent that the investigation commission has two separate and distinct procedures or jurisdictions one for investigation and another for settlement. He asserted that the jurisdiction granted to the investigation commission under Section 8A, introduced into Act in 1949, remains unaffected by the decision in M. Ct. Muthiah vs. The Commissioner of Income Tax Madras (1955) case. He mentioned that if the investigation commission had the  authority to consider and approve the taxpayer’s application for settlement and refer it to the central government, then the latter also had jurisdiction to accept it and to issue necessary orders under Section 8A. His argument is that the decision in Muthiah’s case did not render Section 8A constitutionally invalid. 

Involved legal aspects

Indian Constitution

Article 13

Laws inconsistent with or in derogation with fundamental rights: A great emphasis was paid to this Article of the Constitution because it states that any law existing in India before the enforcement of the Indian Constitution that conflicts with the provisions of the Constitution will be considered void to the extent of their inconsistency. The State cannot enact any law that diminishes or infringes upon the rights outlined in Part III of the Indian Constitution. Any law created in violation of this provision will be void to the extent of the violation in this Article, unless specified otherwise. Law here includes orders, bye-laws, ordinances, regulations, rules, practices or customs that carry legal forces in India. Law in force includes laws passed or established by the legislature or any other competent authority in India before the Constitution’s enforcement and not previously repealed, regardless of whether they are currently in effect overall or in specific regions. 

The provision (Section 8A) in question under this judgement is held to be in derogation of fundamental rights, leading to violation of Article 13 as well. 

Article 14 

Equality before law: This Article is divided into two parts, which are equality before law and equal protection of law. The former means that everyone shall be treated equally in the eyes of law and there shall be no discrimination, while the latter means the same law shall be applied to all the people living across the society. 

The first landmark judgement pertaining to Article 14 was the case of S.G Jaisinghani vs. Union of India (1967), in which the Apex court held that absence of arbitrary power is a fundamental aspect of rule of law, which requires that any discretion given to the authorities must be defined and limited. Justice Subba Rao, emphasised on the rule of law, which underpins our entire constitutional system, fundamentally requires that arbitrary powers be eliminated. He stated that in a system governed by the rule of law, any discretion granted to the executive authorities must be confined within clearly defined boundaries. This case really puts a light on the fact that fundamental rights are above all and in no case can be waived or infringed, be it by any authority or individual. 

The present case deals with a procedure mentioned under Section 5(1) of the Taxation on Income Act, 1947, and it has been held  discriminatory and unconstitutional in nature according to the Article 14 of the Indian Constitution. 

Judgement in Basheshar Nath vs. CIT (1959)

Issue 1: Whether the settlement made under Section 8A of the Taxation on Income Act, 1947 (Investigation Commission) is illegal and void?

While addressing the first issue, the then Hon’ble Chief Justice held that Section 8A of the Act makes it clear that an individual who is a party to the case referred to the commission for investigation may apply for settlement before the investigating commission. Therefore, this makes the settlement procedure a part of the entire investigation provision. It is the duty of the commission to fully satisfy itself with regards to settlement before referring the settlement to the Central Government. Hence, it is wrong to say that settlement and investigation can be two different procedures. 

The case of Behram Khurshed Pesikka vs. State of Bombay (1954), was referred by the Supreme Court in the present case where it was observed that there are two key factors which makes the Statute to be declared unconstitutional, firstly, whether the law in question restricts the legislature in exercising its power or whether it affects the legislature in enforcement of that particular law and secondly, the intention of the constitutional provision has to be considered if it was made for an individual or for public policy, which is being offended by that statute in question. Therefore, when a state enacts a law exclusively within the union’s jurisdiction, it is rendered invalid because the Constitution grants specific powers to the Union and the states, a state cannot overstep its boundaries by legislating on matters reserved for Union and on the other hand, if a limitation is placed on exercise of the legislative power in the public interest, the entire statute is nullified. This is a well established principle in American Law. 

The case of M. Ct. Muthiah vs. The Commissioner of Income Tax Madras (1955) was heavily relied on by the court in the present case. In this case, it was held by the court that Section 5(1) was discriminatory and violative of Article 14 because it created an unfair situation. After the enforcement of the Indian Constitution, Section 34 of the IT Act covers the same field but was more favourable to the Taxpayers. Having two substantially different procedural laws one more favourable to taxpayers and one less favourable operating in the same area leads to discrimination under Article 14 of the Constitution. This disparity in treatment of the Taxpayers led to declaration of Section 5(1) as unconstitutional. In the result, it was held that barring those cases which are already concluded by the reports made by the commission and directions given by the government, the cases which were pending after January 26, 1950 were hit by Article 14. The assessment orders were accordingly quashed as being unconstitutional. 

Justice S.K Das held that Section 5(1) is a discriminatory provision and is an integral part of the procedure prescribed under the Act, Justice further held that the court is satisfied that the report which led to the settlement was made by the investigation commission in pursuance of and as a direct result of discriminatory procedure which it followed. The Investigation Commission followed the only procedure of investigation prescribed under the Act, which was a drastic and summary procedure and if that procedure became void on the coming into force of the Constitution, the jurisdiction of the investigation commission practically came to an end. While observing this, the court referred to the case of Lachmandas Kewalram Ahujaand Another vs. State of Bombay (1952). 

Therefore, the settlement made between the appellant and the commission was declared to be illegal and the order pertaining to that settlement was set aside. 

Issue 2: Can a fundamental right guaranteed by the Constitution be waived?

In the case of Dawson’s Bank Limited vs. Nippon Menka Kabushiki Kaisha (1935), it was held that waiver is a troublesome term in the legal sense. If someone intentionally relinquishes or abandons a known legal right or their conduct suggests that they are giving up a known right or privilege, then it will be considered as a waiver. 

The then Chief Justice while addressing the second issue held that the breach which is being complained by the appellant is found under Article 14 of the Indian Constitution therefore, it is only going to be appropriate to address this issue in relation with Article 14 only. Therefore, the second issue before us shall be “can a fundamental right given under Article 14 be waived”? For disposing this appeal, it is not necessary for the court to consider whether any of the fundamental rights enshrined under Part III of the Indian Constitution be waived. 

It is important to understand whether the right to equality is present for individual benefit or for a larger public interest. By plain reading of the Article, it can be interpreted that this article is present in the Constitution on sound public policy. The court observed that a few points which shall be noticed and which creates a mandate under Article 14 are that the Article commands the State, and it is imposed on the State that every citizen within the territory of India shall enjoin equality before law. In addition to this, it is to be noticed that the benefit of this article is not only limited to citizens, but is available to every individual within the territory of India. After this it is to be considered that the term state given under Article 12 which is also hit by the obligation of Article 14 includes the Government, Parliament of India, Legislature and Government of all the states, all local or other authorities within the territory of India. Therefore, Article 14 protects every individual from discrimination from both legislature as well as executive. 

Another pertinent observation by the CJ was that the true intent of Article 14 is understood, and that it is the obligation of the state to protect it. So it comes to the question, “can a breach of an obligation imposed on the State be waived by any person?” It is open to the State to disobey the constitutional mandate but when the questions will be raised to the State for non-performance of the obligation, will it be right for the state to answer that “true you directed me not to deny any person equality before the law, but this person said that I could do so, for he had no objection to my doing it.”

Justice N.H Bhagwati observed that the preamble of the Indian Constitution with reference to Article 13 along with the language used in making the fundamental rights leads us to a clear conclusion that fundamental rights present in the Indian Constitution do not distinct on the basis that if they are enacted for individual benefit or for public policy unlike the Constitution of the United States. As a developing democracy, it is the duty of the Apex Court to protect the fundamental rights mentioned under Part III of the Indian Constitution. It is important to consider India’s social, educational, economical and political context. While certain limitations on these rights are mentioned in the Constitution itself, such as in Article 19, 33 and 34 there is no justification for imposing ideas from the United States or relying on their Supreme Court rulings. 

Final Judgement

The Supreme Court ultimately passed a judgement in favour of the appellant, setting aside the questionable order of the commission in the present case and quashing all the proceedings against the appellant. Chief Justice SR Das and Justice J.L Kapoor observed that Article 14 cannot be waived off under any circumstance in addition to this, Justice N.H Bhagwati observed that Part III of the Constitution which mentions the fundamental rights cannot be waived off by any citizen. Justice Subha Rao pointed to the socio-economic conditions and held that poverty and backwardness amongst many Indian citizens was a reason against not allowing waiver of fundamental rights. Many precedents which allow waiver of fundamental rights of the U.S were mentioned while arguing the present case but were rejected due to the behaviour of the parties and to keep the matter at hand short, the U.S precedents were not discussed in detail. 

On the other hand, Justice S.K Das was of a different view and observed that fundamental rights which are given for individuals benefit can be waived and fundamental rights given for public policy cannot be waived. 

Analysis of the judgement 

This case is an examination of the validity of settlement made under the Taxation of Income Act,1947 after the enactment of the Indian Constitution, with a great emphasis on the issue whether fundamental rights given under the Constitution can be waived off regardless of whether a fundamental right is enacted for the benefit of an individual or for the public interest. The Constitution makes no distinction, and the obligation on the State to protect the fundamental rights remain inviolable. The court acknowledged the fact of the socio-economic realities of India where people are not educated, not aware and asserts that it is also the duty of the judiciary to protect these rights even against the individuals themselves. The major focus of the case is how the Apex Court protects the fundamental rights and keeps it intact even when there is an agreement to settlement. 

The Apex Court had elaborated on the significance of upholding constitutional mandates and held that the doctrine of waiver cannot be pleaded pertaining to fundamental rights. The court observed that Article 14 which makes equality before law mandatory, cannot be waived, as it serves as an admonition to the State to safeguard the fundamental rights and ensure equality as a matter of public policy. The court stated that no individual can relieve the State of its solemn obligation imposed by the Constitution. 

While there were dissenting observations amongst the bench, the majority established the precedent that an individual cannot waive of his fundamental right. This landmark decision solidifies that fundamental rights cannot be relinquished and are non-negotiable, especially in the context of settlement agreements under specific legislative frameworks. 

In a gist, this case is a successful attempt at upholding the Constitution above all and setting an example that fundamental rights shall prevail above all, which makes it a landmark precedent and hence the same has been relied upon by the courts as and when required. 

Judgments for which this case was cited

While referring to the present case, it was held by the Apex Court in the case of Kalpraj Dharamshi and Ors. vs. Kotak Investment Advisors Ltd. and Ors. (2021), held that waiver is the intentional relinquishment of rights. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege which, except for such a waiver, a party could have enjoyed. It is an agreement to not to assert a right, there can be no waiver.

Further in the case of Lombardi Engineering Limited vs. Uttarakhand Jal Vidyut Nigam Limited (2023), the Apex Court referred the present case and held that in the case of Basheshar Nath vs. CIT, the Supreme Court of India examined whether fundamental rights guaranteed under the Indian Constitution can be waived. The concept of estoppel and waiver are both aimed at ensuring honesty and good faith in everyday transactions. The court held that the fundamental rights cannot be waived off especially those present under Article 14 of the Indian Constitution. 

In another case of Abhimeet Sinha and Ors. vs. High Court of Judicature at Patna and Ors. (2024), the Apex Court referred to the present case and observed that estoppel, that is the doctrine of waiver, will not be applicable when the arbitrariness affects fundamental rights under Article 14 and 16 of the Indian Constitution. 

Conclusion

The decision under this case has turned out to be a landmark precedent and has been referred to by many courts over the years. It is also pertinent to note that the concept of fundamental rights was taken from the Constitution of the United States therefore, the idea behind the fundamental rights given in the Constitution of the United States is to be understood and a comparison between the intention of the drafters behind the Indian and the American Constitution is to be drawn. The American Constitution mainly outlined the powers and structure of the government broadly leaving a room for further laws and interpretation to fill in the loopholes and not every detail was mentioned in the Constitution of the United States. On the other hand, the Indian Constitution is more specific where it not only defines rights but also lays out the limits to those rights for the greater good of society. So it tries to balance individual rights with the needs of the society. However, this difference doesn’t really affect the issue that was discussed in the case. Both Constitutions make these rights and restrictions subject to interpretation by courts, which means that the judges can decide what the rights mean and how the restrictions apply.  

References

• https://www.drishtijudiciary.com/landmark-judgement/constitution-of-india/basheshar-nath-v-cit-air-1959-sc-149
• https://www.latestlaws.com/latest-caselaw/1958/november/1958-latest-caselaw-117-sc
• https://www.barandbench.com/columns/can-fundamental-right-waived-arvind-datar
• https://www.jstor.org/stable/43949661

This article is authored by Mohd Atif Zakir. In this exhausted piece of writing he has discussed the case demonstrating common intention and common object in furtherance of committing an offence. Furthermore, this case provides an observation stated by the Apex Court in order to re-examine whether the death penalty can be reversed if the offence is perpetual in nature. Additionally, The article is quite expressive in elaborating some of the Sections of the Indian Penal Code that deal with conspiracy and murder.

Introduction

The case of Suresh and Anr v. Union of India (2001) is all about witnessing a brutal murder committed in a family where the children were also the victims. The barbarity was done by the other members of the family over a dispute of land. This case gives an overview about the intricacies of criminal trial, whereas a heinous offence committed and afterwards how the prosecution presented their contention to prove the guilt of the accused, on the other hand the defence counsel defended the accused against serious charges which have been framed against him.

The Court in this case shed a light on the insights of the Section 34, 300, 302 and other Sections of the Indian Penal Code,1860 and expressed the opinion over the applicability of the doctrine of rarest of the rare, explained in the earlier judgement pronounced by the Apex Court. In this case the Court refers to the landmark case of Bachchan Singh v. State of Punjab,1980 while awarding the death penalty to the accused. This case further emphasised the crucial aspects of common intention and common object shared by one of the accused at the moment of the occurrence of such perpetual offence.

Details of the case

1. Case Name: Suresh and Anr vs State of U.P. (2001)
2. Equivalent Citations: (2001) 3 SCC 673
3. Court: Hon’ble Supreme Court of India
4. Bench: Justice K.T. Thomas, Justice R.P. Sethi and Justice B.N. Agrawal
5. Appellants: Suresh and Anr
6. Respondent: State of U.P.
7. Date of the judgement: March 2, 2001

Facts of Suresh and Anr vs. State of U.P (2001)

Ramesh and his wife and their children were sleeping at their home. During the sleeping hours, when half of the night was about to go, all the family members were killed. But one of the children remained alive with several injuries. The surviving child was the only one who had witnessed the entire incident of brutal killings of his parents and other siblings, at that night.

The surviving child witness (Jitendra) summarised the whole brutal incident to the trial court that he saw his uncle (Accused 1 Suresh) hereinafter referred to as A-1, accompanied with his brother-in-law, (Accused 2 Ramji) referred to as A-2, was seen cutting the body of sleeping children into pieces with axe and chopper.

The witness of prosecution named Lalji (PW-1), the uncle of the deceased Ramesh (who’s also the uncle of Suresh) and Amar Singh (PW-2) who is the neighbour of the deceased, gave evidence which was testified by PW-3 Jitendra. Although, the said two witnesses couldn’t assign any strong evidence before the court which can testify the involvement of Pavitri devi except narrating that she also was present at the spot where the incident occurred. She lived in the house which was just next to the house of the deceased.

The mother of those little children, Ganga Devi, got serious injuries due to which her skull was broken into pieces. The last victim was Ramesh, the father of the children. He got many injuries on his neck and above that. The horrific incident took place because of the rivalry that was happening between them for a piece of land which was just next to the house of the deceased and  A-1 Suresh used to claim his ownership over the piece of land. However, the deceased Ramesh took back possession of the land.

The Session Court considered the evidence presented by the PW-1 Lalji and PW-2 Amar Singh in the presence of various contention raised by the counsel for the accused. Further, the trial judge found the said evidence reliable enough and convicted the said accused except Pavitri Devi, who was acquitted by the Court due to lack of evidence of her being present at the incident.

The division bench of the High Court also considered the said evidence, and they didn’t find any reason to contradict the decision made by the trial Court. Additionally, the Court awarded the death penalty to the two appellants, Suresh and Ramji. Afterwards, The case was heard by a bench of the Apex Court to determine whether Section 34 (common intention) of the Indian Penal Code could be invoked in this case. Subsequently, the prosecution also raised an appeal to get the acquittal reversed of Pavitri Devi.

Issues raised

• Whether the acquittal of Pavitri Devi justified the interference of her, from the Court?
• Whether Pavitri devi shared the common intention with Accused-1 and Accused-2?
• Whether Section 34 of the Indian Penal Code 1860 can be applied in this case?
• Whether an obvious act is necessary to establish common intention under Section 34?
•  Whether common intention and similar intention can be considered equally?

Contentions made by both the parties

Appellants

The appellant presented several aspects of the case, which are discussed below:

• The acquittal of Pavitri Devi does not warrant interference from this Court, i.e, the Court shouldn’t interfere in the acquittal of Pavitri Devi. 
• This is not a case of demonstrating the “rarest of the rare” category, which obliges the Court to award the death penalty to the two appellants, Suresh and Ramji. In the case of Bachchan Singh v. State of Punjab the doctrine of rarest of the rare was introduced by the Apex Court where the court discussed the nature of crime and before awarding the death penalty it must look into the perpetuity of the act due to which an offence comes under the rarest of the rare circumference. Further, the appellant contended that this case has lack of evidence and witness who can testify it.
• Additionally, the learned counsel further argued that if Section 34 of the Indian Penal Code which prosecutor seek to be invoked against Pavitri Devi, the prosecutor needs to prove the commission of an overt act that has been done by the accused Pavitri Devi in furtherance of sharing common intention with other co-accused. Mere presence of an accused at the spot of crime doesn’t amount to holding the accused guilty.
• The senior learned Counsel K.B Sinha further cited the decision of Panchhi and ors. v. State of U.P. (1998) where the Court decided to award an alternative punishment instead of the death penalty. Even considering the fact that the offence was heinous in nature.

Respondent

The respondent presented their contentions which have been pointed out below:

• The respondent prosecutor begins with the accountability that both the accused were rewarded the death penalty lawfully for such heinous offence which they have committed.
• Additionally, he argued that this incident completely falls under the category of “rarest of the rare ” cases which has been introduced in the Bachchan Singh vs State of Punjab case by the Apex Court. 
• The other argument was to raise a question about the acquittal of Pavitri Devi seeking to be reversed, as she has shared the common intention with both the other accused which comes under the Section 34 of the Indian Penal Code, 1860.
• Further, the learned counsel for the State contended that Pavitri Devi was present at the place of occurrence and being present at the spot speaks itself that she had shared the common intention with other accused to commit the brutal murders. Therefore, she can be held liable for the murder under Section 302 of the Indian Penal Code with the aid of Section 34 of the Indian Penal Code.

Legal provision involved in Suresh and Anr vs. State of U.P (2001)

Section 300 IPC

Section 300 of IPC defines murder, which is an act committed with an intention of causing death. This Section simplifies that culpable homicide is murder, if the act is committed with an intention of killing a person or the conditions that strongly indicate the willingness to kill a person. These conditions are discussed below:

A) If the act done with an intention of causing such bodily injury to such an extent that the person causing the injury knows that his act is enough for killing the person to whom the injury is caused. 

B) If an act which is done with an intention of causing bodily injury to any person and such bodily injury is marked to be imposed to the extent which can cause death of the person who is injured.

C) If a person knows well that his act can be life-threatening to some other person or can cause a serious bodily injury, which can be a reason to cause the death of that person. And such an act has been committed without having a possibility of being alive amounts to murder.

Section 302 IPC

This Section mentions the punishment for murder. When a person is found guilty of killing someone, he shall be punished with death, or imprisonment for life and also a fine shall be imposed on him. Killing a person with a guilty mind is considered as a perpetual offence, but if the act is committed in a cruel manner, the act becomes heinous in nature. Therefore, a strict punishment will be imposed.

Section 34 IPC

When several persons do an act collectively having common intention behind commission of an act, all the persons shall be liable equally. This principle is described under the codified law as joint liability. Where all the persons would be liable for the offence as it was committed jointly by having the same intention to commit the act.

Section 149 IPC

This particular Section emphasises that if an unlawful assembly commits an act having common object, then every individual of that assembly is guilty. Therefore, the object must be common while committing the act.

Section 120(A)

When two or more than two people made an agreement to commit an illegal act or accomplish a legal act by using the illegal methods, then they fall in the definition of Criminal Conspiracy. However, the mere agreement is not enough to hold any person liable for criminal conspiracy unless any commission of the act is done in order to commit the agreed act.

Section 120(B) IPC

This Section talks about the punishment for the offence of criminal conspiracy, which has two elements:

• If the offence is punishable by death, life imprisonment or rigorous imprisonment for the term of two years or more, if the punishment isn’t described in the code for the offence, then the person committing that offence will be considered as he has aided or abetted the offence.
• If the party is involved in conspiracy, they shall be punished with six months of imprisonment, fine or both. If the planned conspiracy fails, the party involved shall be liable for fine.

Judgement of the case

After referring to several judgments, In Suresh v. State of U.P., the Court emphasised by saying that Section 34 of the Indian Penal Code is generally applied in criminal cases, but this case has a different vision to acquire. When the appeal of this case is raised and heard by a two judges bench, it’s clear to think and reconsider the provision and to look at what extent the provision can be invoked in this case. As a consequence, the appeals were heard by the larger bench.

In one of the appeals A-1 Suresh and his brother in law, A-2 Ramji, struggled with their final chance to get free from the death penalty charged on them by a session Court and upheld later by the division bench of the High Court. The another appeal where Pavitri Devi,  wife of Suresh (sister of Ramji) is battling to sustain the acquittal awarded to her from the High Court in turnaround of the conviction for murder awarded by the session Court with assistance of Section 34 of IPC.

The Court recognised Section 34 of the Indian Penal Code which talks about the principle of vicarious liability in criminal jurisprudence where a person is liable for the act which is not committed by him but by the other person with whom he shared the common malicious intention. It doesn’t mean to be a substantive offence but a rule of evidence. And the same principle was laid down in Goudappa and Ors. v. State of Karnataka (2013), the Court has reiterated the principle by suggesting that Section 34 Indian Penal Code lays down a principle of joint liability in doing a criminal act and the essence of that liability is to be found in the existence of common intention. Furthermore, the Court emphasised that a pre common intention pre-supposes prior consent or planning may be developed at the time of the commencement of the offence, but here it’s crucial to consider that such plan must indicate the act establishing an offence. 

In Mehboob Shah v. Emperor (1945), the court emphasised that to convict the accused of an offence while applying Section 34, it must be proved that the criminal act was done in concert pursuant to the prearranged plan. There must have been prior meeting of minds. Further, it is difficult to prove the intention of an individual if there’s no direct evidence or relevant circumstances which can conclude that the intention was made by doing a prior planning.

Here, It is not to be well cleared that Pavitri Devi shared her common intention with the other co accused because there is no strong evidence presented before the court which can prove the engagement and commission of any act done by Pavitri Devi.

Conclusively, the court stated that the common intention can be formed on the prior basis or at the time of occurrence of the moment. Section 34 of IPC doesn’t mean to imply a situation where a fictitious act may fall within a descriptive Section stated above. However, Section 34 is required to meet a circumstance wherein all the co accused must have done something in the furtherance of commission of a criminal act. While in Emperor vs Barendra Kumar Ghosh, (1924), the court observed that the common intention does not have to do anything with committing an act separately, it is a enough to accompany the other accused by keeping the same intention in order to achieve an object, to accept that the accused had shared the common intention while the offence being occurred. 

Hence, the acquittal of Pavitri Devi is justified on the basis of the above detailed observation given by the court. Moreover, Section 34 of the Indian Penal code is not implied in this case because of not doing any physical act which can prove the assistance and aiding done by the accused Pavitri Devi. To imply the Section 34 in a case the prosecution must have to prove the involvement of the accused on the basis of evidence and witnesses.

As the apex court referred to the previous landmark judgement which emphasised that an overt act is not necessary to be done in every case. It varies from case to case and it depends on the severity of the offence to determine whether an overt act is required to be considered. Therefore, it can not be determined that an overt act will be a necessity before analysing the facts and the circumstances of the case.

The SC stated that both the trial court and the high court have provided detailed justifications for their decision to impose the harsh punishment. It is not possible to hold that the acts committed by A-1 Suresh and A-2 Ramji, should be removed from the boundaries set to determining whether the crime belongs to rarest of rare cases in which the lesser alternative is unquestionably foreclosed, knowing well that the death penalty is now limited to the rarest of rare cases in which the lesser alternative is unquestionably foreclosed. After observing the degree of the horrific offence the case does not have any alternatives to go with to putting out this case from the circumference of rarest of the rare.

Therefore, it is not easy to decide that a person who was just present at the time of the commission of the offence, without carrying any weapons or without aiding other accused, can also be convicted within Section 34 of the IPC. In the present case, the accused-3 Pavitri Devi was just there standing outside the house of the deceased person where the incident happened doesn’t necessarily conclude that she would also have the involvement in this entire incident in furtherance of the common intention.

The difference between a common intention and a similar intention which is real and substantial is also not to be lost sight of. The common intention indicates a prepared strategy, but in some cases it can emerge spontaneously during the performance of the act. Such a common desire formed on the fly of the moment differs from a similar goal acted upon by multiple people at the same time. The distinction between common and similar purposes may be fine, but it is a real one that, if ignored, may result in a miscarriage of justice. Therefore, The common intention and similar intention are simply distinguished.

Hence, the court upheld the acquittal of accused Pavitri Devi and held that the appeal raised by the convicted appellants seeking reversal of the death penalty, rewarded by the High Court, the Court doesn’t have any strong rationale where it may be considered that the incident doesn’t come under the rarest of the rare instance. Hence, the Court upheld the decision of the High Court and therefore both the appeals were dismissed.

Rationale behind the judgement

After the trial court and the High Court, the Supreme Court delivered a well established rationale behind the judgement. The Apex Court elaborated and decided to go with the death penalty for such heinous crimes. Knowingly, said that the death penalty can only be imposed for the rarest of the rare cases where the lesser punishment will not be justified as held in the case of Bachchan Singh vs State of Punjab. 

Further, the Apex Court said that it can’t be considered that the case could be taken out of the category of extremely heinous offence. 

In Shatrughan Patar v. Emperor (1919), the Supreme Court acquitted one of the accused because of not having reliable evidence to prove his shared common Intention under Section 34 of the Indian Penal Code with other co-accused involved in commission of murder. The prosecution failed in convincing the court that the accused had shared common intention while occurring at the incident. In the case of the State of U.P. v. Iftikhar khan,(1973), The court emphasised the reliable principle of Section 34 of the Indian Penal Code that the participation is essential to apply this Section to convict a person, mere presence of an accused is not adequate to hold him guilty for sharing common Intention with the other co-accused. Although, no other facts can be compared with the facts stated in this case. 

Eventually, the court couldn’t deny the circumstance that the brutality committed in this case, should not be categorised in the sphere of rarest of the rare in which an alternative punishment can be rewarded.

Analysis of Suresh and Anr vs. State of U.P (2001)

The case of Suresh v. State of Uttar Pradesh gave an overview about the joint liability of an accused who has been framed under the charges of joint liability by sharing common intention in commission of an act. The ambiguity resolved in this case by analysing a brief interpretation of joint liability, with regard to the involvement while committing an offence.

The court interpreted the broader meaning of Section 34 of the Indian Penal Code in reference to the intention of a person who has been accused of committing a crime. The court analysed that for considering the common intention, it is not only to prove the conspiracy which has been committed by prior meeting of minds, but there must be evidence to prove the participation while committing an illegal act. An eyewitness is also required to testify the involvement of an accused, i.e. he or she has done something wrong.

In this case, the importance of common intention which needs to be shared with other accused has been demonstrated by giving the reference of several cases In which the importance of participation has been expressed.

While analysing this case, Section 33 of the Indian Penal Code is also needed to discuss where the word “act” describes in the form of a series of acts as a single act. This elucidates that a criminal act can be a single act, or it can be a series of acts. Further, the issue of how can a criminal act be done by several persons is also justified by explaining Sections 35 (When an act is criminal by reason of its being done with a criminal knowledge or intention), Section 37 (cooperation in the commission of an offence where several acts means to commit by doing one act) and Section 38 (when several persons are engaged in commission of a criminal act, they can be liable of committing different acts on the basis of the act they committed first) of the Indian Penal Code in relation to Section 34.

Resulting from the detailed analysis, the court upheld the acquittal of (Pavitri Devi) one of the accused in this case. The doctrine of “rarest of the rare” has been interpreted in such a lucid manner. The court analysed the applicability of the death penalty to the convict if the crime is as brutal as it can be classified in the frame of rare incidents which are not witnessed in ordinary circumstances. Furthermore, the respondent doesn’t have any strong argument which can impact the judges to reconsider the capital punishment. The case of Bachchan Singh v. State of Punjab already established the factors where the judges have to take into consideration while awarding the capital punishment. These described observations became the subject matter for dismissal of appeal.

Conclusion

The greed for a piece of land or personal favours among people in this society has become a major factor in seeing that the criminal cases such as murder and rape have been increasing in day to day life. Every single day, when we come across the daily highlights, we find ourselves witnessing masses of incidents which are committed between family members.

The case of Suresh Anr. v. State of U.P. gives a strong indication of how far a person can go for his greedy pockets by killing his own family members brutally.

This case shed a light on the pivotal role of sharing common intention by the accused who may have the participation in committing a criminal act. This case also highlights the intensity of a heinous crime where the accused seems to be ambiguous about what has been committed. The case of Suresh and Anr. v. state of U.P. developed an issue that how a crime can be categorised in a mould of rare circumstances, and this question has been answered by the court in the most comprehensive manner by elucidating the Sections which are relevant to the case.

The court established a different approach while explaining about the overt act, The court said an overt act must have been committed to consider the common intention which is shared by the accused. However, it doesn’t necessary in every case to consider that an overt act must be done to prove the participation of an accused in a criminal act. The court said It varies from case to case, and the facts may be different depending upon the degree of the offence, which is heinous in nature. The ambiguity of awarding the capital punishment has been resolved by the court in this case. This case put an instance of exhaustive interpretation for the cases that will come in future before the court where the facts and issues would be similar to this case.

Frequently Asked Questions (FAQs)

What do you mean by the burden of proof?

When the prosecution claims the act has been committed by the accused, he has to present such facts, on the basis of which his claim can be considered by the court. The burden of proof always lies upon the prosecution (According to the Section 101 of the Indian Evidence Act) to prove the guilt on the basis of facts, in all criminal cases. The prosecution has the liability to prove conflicted charges, allegations that the accused has committed the offence and if he succeeds in proving this on the grounds of facts, the court may find the accused guilty for committing the offence.

What is the difference between common intention and common object?

Common intention indicates the mutual agreement made between two or more than two people in order to commit a criminal offence. On the other hand, the common object is identified as the target or goal which has a purpose to be accomplished by a group of people, collectively by doing some actions. The liability in common intention would be imposed by looking at that all the number of persons accused of committing an offence, shall be liable equally. While in a matter of common object, it is sufficient to be a member of the group which has an aim to achieve.

What is the doctrine of “rarest of the rare” case?

There is no statutory provision that defines this doctrine in any of the substantial laws. It is solely a principle used to justify whether a convicted person in an horrific crime should be awarded the death penalty. The doctrine was first introduced by the Apex Court in the case of Bachchan Singh v. State of Punjab to elaborate a clear-cut guideline for the offences punishable by death. The court interpreted this doctrine in order to reduce the ambiguity for courts to decide when to award the death penalty, which is the highest punishment in the criminal justice system of India.

What are heinous offences, and how can it be identified?

The offences, considered severe in nature and carry stricter punishment than any other offences, come under the category of heinous offences. The substantial law, Indian Penal Code interprets certain offences as heinous in nature depending upon the minimum standards of punishment given. In India, some offences that come under the sphere of heinous offences are: Murder, Rape, Kidnapping for ransom, Dowry death, gang rape and Acid attacks.

How is the death penalty executed In India?

The execution for the death penalty is done by hanging the convicted person till death and the procedure for hanging is described under Section 354(5) of the Criminal Procedure Code, 1973. Although, the death penalty is not awarded for committing every heinous crime but in the case of the rarest category only where the offence is horrific in nature. It is the court to decide it.

Difference between Section 120B and Section 34 of the Indian Penal Code, 1860

• Section 120B of the Indian Penal Code, describes the punishment for planning and the agreement made between the parties to commit an act which is illegal or a legal act committed by using illegal means. While Section 34 of the IPC deals with the commission of an offence by multiple persons having shared a common intention in committing the offence. 
• Therefore, Section 120(B) indicates a conspiracy that cooked among the persons who have planned to achieve an object by committing an offence; however, the conspired act must be done in order to make them guilty, mere planning without taking an initiative, would not be held such persons accountable. Section 34 demonstrates the joint liability of persons who have accomplished an act jointly.
• Conspiracy has a resemblance with commission of an act, because only an act which is committed after planning, is punishable under substantial law, not a malicious thinking can lead anyone to be liable.

References

• Ranchhoddas, R., Thakore, D. K., Manohar, V. R., Singh, A., Srivastava, O. P. (2011). Ratanlal & Dhirajlal’s the Indian Penal Code (Act XLV of 1860). India: LexisNexis Butterworths Wadhwa Nagpur.
• https://courtverdict.com/supreme-court-of-india/suresh-anr-vs-state-of-u-p
• https://www.casemine.com/judgement/in/5609ab95e4b014971140cd4c